2023 PLP 1388 (MLD)

MAHMOOD A. KHAN, J.

This suit has been filed by the plaintiff for possession, permanent injunction, mesne profit and damages of Rs.100 million.

2. The case of the plaintiff as contained in the plaint is that the plaintiff is lawful owner of the Shops Nos.A-2 and A-3, Block No.A, Ground Floor, on Sub Plot No.SD-5/A-1 of plot No.SD-5 Block-A, KDA Scheme No.2, North Karachi by virtue of registered Sub-Leases dated 29th August, 2002 (hereinafter referred to as the "subject shops"); that the sister of the plaintiff started food business on the subject shops in the name of "Mama Snacks Bar" and thereafter in the year 2004 she closed her business and since then the subject shops were lying vacant. The plaintiff was settled aboard, as such, the defendant taking advantage of the situation with mala fide intentions installed a fish stall (chapra) on the footpath in front of the subject shops and then in December, 2015, the defendant, tried to illegally and unlawfully occupy the subject shops, which at that time were lying vacant and closed since couple of years. The plaintiff rushed at Karachi and asked the defendant to remove his illegal Fish Stall (Chapra), which initially the defendant had agreed, but thereafter he demanded money for removing his illegal Fish Stall. The plaintiff had refused to fulfill the illegal demand of the defendant and also registered complaints with the concerned police station. Thereafter, on 31.03.2016 at 8:30 a.m. it came to the knowledge of the plaintiff that the defendant accompanied some persons illegally and unlawfully broke the locks of the subject shops and occupied the same. Hence this suit with the following prayers: A. To direct the defendant to hand over the peaceful vacant possession of the Shop No.A-2 and A-3, Block No.A, Ground Floor, on Sub Plot No.SD-5/A-1 of Plot No.SD-5, Block-A, KDA Scheme No.2, North Karachi to the plaintiff. B. To restrain the defendant his persons(s), men, agent, representatives, attorney(s), workers, employees, assign(s) acting on behalf of the plaintiff to create third party interest in respect of shops No.A-2 and A-3, Block No.A, Ground Floor, on Sub Plot No.SD 5/A-1 of Plot No.SD-5 Block-A, KDA Scheme No.2, North Karachi. C. To direct the defendant to pay sum of Rs.200,000/- monthly as mesne profit/fees in respect of the Shops in question which are illegally and unlawfully in possession of the defendant to the plaintiff from 31.3.2016 till the realization of the decree in the above stated suit. D. To direct the defendant to pay Rs.100,000,000/- (rupees 100 millions) to the plaintiff as damages in respect of the physical and mental torture which the plaintiff bore due to the illegal and unlawful acts of the defendant above mentioned. E. Any other relief(s) in the above mentioned circumstances as deems fit and appropriate may also be granted by this honorable Court in favour of the plaintiff. F. Cost of the suit"

3. The defendant had shown appearance in the case and contested the matter by filing written statement wherein it is contended that the defendant is lawful tenant of the subject shops and therefore he is in lawful possession of the subject shops and as such the suit of the plaintiff as framed is not maintainable under the law. It is further contended in the written statement that the defendant had filed MRC No.336 of 2016 before IInd Rent Controller, Karachi Central and is depositing monthly rent therein. The written statement further reveals that the defendant also filed Civil Suit No.346 of 2016 for permanent injunction before trial Court Judge, Karachi Central claiming to be lawful tenant of the subject shops and got stay in the Suit.

4. On 24.04.2019, injunction application of the plaintiff filed in the instant Suit was allowed by this Court and the defendants were restrained from creating any third party interest in the subject shops till final disposal of the suit. On 21.05.2019, on the basis of the pleadings of the parties, following issues were framed by this Court:

1. Whether the suit in its present form is maintainable?

2. Whether the relationship of landlord and tenant exists between the plaintiff and the defendant?

3. Whether the defendant is regularly paying the monthly rent of the two subject shops No.A-2 and A-3, Block No.A, Ground Floor, in a building constructed on the subject plot No.SD-5/A-1 of Plot No.SD-5, Block-A, KDA Scheme No.2, North Karachi?

4. Whether the defendant is illegally, unlawfully and forcibly occupying the shops in question?

5. Whether the plaintiff is liable to claim Rs.200,000/- (Rupees Tow Hundred thousand only) per month as mesne profit/fee of shops in question?

6. Whether due to the acts of the defendant, the plaintiff has suffered losses, for which he is entitled to claim damages?

7. What should the decree be?" and Mr. Ikran Siddiqui, Advocate was appointed as Commissioner for recording the evidence of the parties.

5. During evidence before the learned Commissioner, the plaintiff examined himself and his examination-in-chief was conducted wherein he produced the following documents, however, he was not cross examined by the defendant:

1. Affidavit in evidence of the plaintiff Exhibit P/1

2. Copy of Passport No.749341 Exhibit P/2

3. Indenture of Sub-Lease dated 29.08.2002 of Shop No.A-2, Ground Floor, Sub Plot No.SD-5/A-2 of Plot No.SD 5, Block A, North Nazimabad, Karchi Exhibit P 3

4. Indenture of Sub-Lease dated 29.08.2022 of Shop No.A-3, Ground Floor, of Plot No.SD-5A/2 of Plot No.SD 5, Block-A North Nasimabad, Karachi Exhibit P/4

5. Copy of Trade License at Sr. No.1715 dated 28.07.2014 Exhibit P/5

6. Copy of complaint dated 15.03.2016 registered with SHO of P.S. North Nazimabad, Karachi Exhibit P/7. From the side of the defendant, he examined himself and his examination-in-chief was also recorded by the learned Commissioner and he was cross-examined by the learned counsel for the plaintiff. The defendant produced certain documents during his examination in chief which were exhibited as follows:

1. Affidavit in evidence of the defendant Exhibit D/1

2. Bank Deposit Slip amounting Rs.45000 dated 03.02.2015 Exhibit X/D

3. Copy of Voucher of Pakistan Beverage Ltd. dated 09.03.2014 Exhibit X/D/l

4. Copy of Voucher of K-Electric DATED 13.11.2015 Exhibit X/D/2

5. Professional Tax Challan ETD dated 20.03.2013 Exhibit X/D/3

6. Copy of KMC letter dated 10.11.2014 (compliance of requirements trade) Exhibit X/D/4.

7. Copy of Fine Slips Exhibit X/D/5

8. Copy of Inspection Report of Messrs Mama Snack's Exhibit X/D/6

9. Copy of plaint in Civil Suit No.346 of 2016 Exhibit X/D/7

10. Copy of M.O. Slips Exhibits X/D/8, D/8/1 & D/8/2

11. Copy of Post Office Certificate Exhibit X/D/9

12. Copy of MRC No.336 of 2016 Exhibit X/D/10

13. Copy of rent paid Chalan Exhibit X/D/11 and X/D/11/1 to X/D/11/21(K).

6. After completion of the evidence the learned Commissioner finally submitted his report dated 12.11.2020, which was taken on record vide order dated 18.11.2020 and the matter was ordered to be fixed for regular hearing. However, on 18.01.2021, by consent of the learned counsel for the parties the above issues were re-casted as under:

1. Whether the suit is not maintainable on account of exclusion available under Sindh Rented Premises Ordinance, 1979?

2. Whether the defendant is illegally, unlawfully and forcibly occupying the shops in question?

3. Whether the plaintiff is liable to claim Rs.200,000/- (rupees two hundred thousand only) per month as mesne profit/fee of shops in question?

4. Whether due to the acts of defendant, the plaintiff has suffered losses, for which he is entitled to claim damages?

5. What should the decree be?

7. Thereafter the matter had come up for final arguments and on 18.01.2021, arguments of learned counsel for the plaintiff were heard while learned counsel for the defendant had sought adjournment and the matter was adjourned at his request and he was allowed option of filing written synopsis as well. Thereafter, the matter had come up for arguments on 17.03.2021 when again the learned counsel appearing for the defendant had requested for time to make arguments and the matter was adjourned with observations that in case on the next date of hearing arguments are not coming forward on the part of the defendants, the matter is liable to be considered for conclusion on the basis of the record present before the Court and whatever assistance that may be forthcoming. Thereafter the matter had come up for final arguments on a number of dates, however, the counsel for the defendant failed to appear. Record further reveals that finally counsel for the defendant had refused to receive the intimation notice of this Court on the ground that file of the case has been returned to the defendant, as such, as an abundant caution intimation notices were ordered to be issued directly to the defendants which had returned un-served and finally the defendants were served through pasting and the bailiff of this Court submitted his compliance report dated 31.10.2022.

8. In the above circumstances, arguments of the learned counsel for the plaintiff were finally heard on 12.11.2022 and he also filed written synopsis of his arguments and judgment was reserved.

9. During his arguments, the learned counsel for the plaintiff reiterated the contents of the plaint and argued that there is no relationship of landlord and tenant between the parties and the defendant has failed to produce any evidence establishing relationship of land lord and tenant between the plaintiff and the defendant and even no rent agreement was filed by the defendant; that the defendant has illegally and unlawfully occupied the subject shops and since he is enjoying wrongful possession of the subject shops, therefore, he is liable to pay the mesne profit to the plaintiff. He, therefore, prayed for judgment and decree as prayed.

10. The defendant failed to appear before the Court to argue his case, therefore, this judgment shall proceed on the basis of the issues initially framed by this Court on 21.05.2022. Although the issues framed on 18.01.2021 with consent but not present in field when evidence was led. Even otherwise there is no substantial difference between the two except for being more precise.

11. Having heard the learned counsel for the plaintiff and gone through the record, my findings to the issues are as under where-after reasons thereof would follow:

1. Whether the suit in its present form is maintainable? Affirmative

2. Whether the relationship of landlord and tenant exists between the plaintiff and the defendant? Negative

3. Whether the defendant is regularly paying the monthly rent of the two subject shops No.A-2 and A-3, Block No.A, Ground Floor, in a building constructed on the subject plot No.SD-5/A-1 of Plot No.SD-5, Block-A. KDA Scheme No.2, North Karachi? Negative as discussed

4. Whether the defendant is illegally, unlawfully and forcibly occupying the shops in question? Affirmative

5. Whether the plaintiff is liable to claim Rs.200,000/- (Rupees Two Hundred thousand only) per month as mesne profit/fee of shops in question? Answered as discussed

6. Whether due to the acts of the defendant, the plaintiff has suffered losses, for which he is entitled to claim damages? Negative

7. What should the decree be?" Suit stands decreed ISSUES NOS. 1, 2 AND 3 As to the matter of the maintainability the two provisions of the Specific Relief Act, 1877, section 8 and section 9 are available to acquire possession. Section 8 requires showing entitlement whereas section 9 requires legal possession accompanied with the prescribed timeframe wherein the same can be exercised. The plaintiff has brought forwarded in evidence Exhibits P-3 and P-4 being the indenture of sub-leases and there is no dispute/question to his title. In this regard it is also observed that according to the plaint the knowledge acquired by the plaintiff in the matter as to the dispossession is 31.03.2016 and the plaintiff having filed this suit on 05.04.2016. These proceedings as are found qualifying and covered by both the sections and there is no contradiction between them, rather section 9 is a special provision for early grievance and irrespective to this distinction section 8 is always available in this regard for the plaintiff to the redressal. The only legal element further questionable as found present is the claim of the defendant that he was a tenant in the subject properties. As such, the exclusive jurisdiction available with the Rent Controller under section 13 of the Sindh Rented Premises Ordinance, 1979 is present to disturb the jurisdiction of the Civil Court under which the present proceedings are available. It however bears from the record that the said element cannot come in the way of the plaintiff as neither the plaintiff was cross examined to deny the status of the defendant as a tenant nor the defendant was able to come up with any evidence except for the oral statement which was otherwise also rebutted in the cross-examination to acquire the said status. Record of Miscellaneous Rent Case filed under section 10 of the Sindh Rented Premises Ordinance, 1979 cannot help the defendant in this regard also as it has not been brought up that the same was ever contested on the part of the plaintiff and thereafter the said position got clarified from the said Court. The proceedings before the Civil Court of injunction filed in this regard also did not acquire any declaratory decree in favor of the defendant as to his status of the claimed tenant and only injunction was available for exercise of rights in accordance with law. In the said circumstances, it stands established that the defendant failed to prove his claim of being a tenant and as such precluded by the said provision of Sindh Rented Premises Ordinance, 1979 and cannot disturb the jurisdiction of this Court. In the said circumstances, the maintainability is not found in question in any form or manner. The second issue as to the relationship already discussed above same stands determined as negative. As to the issue No.3 apart from the foregoing discussion it can only be further said that the payment of the defendant brought up in the matter is a receipt of payment and not rent as a rent is the amount payable by a tenant to the landlord which arises from the relationship of landlord and tenancy which already discussed above has not been proved, as such, this issue stands determined in negative and as discussed herein. ISSUE NO. 4 This issue on account of the failure of the defendant to bring forward any element of consent and/or permission being brought up on part of the owner or for that matter the landlord as claimed by him i.e. the defendant stands not proved and resultantly is negative in reply. ISSUE NO. 5 In respect of the claim of Rs.200,000/- per month as mesne profit/fees of the subject shops the plaintiff has not been able to prove the said quantum being available in the market, however, his right to the ownership is not found in question and the possession admittedly available with the defendant without providing the consent of the owner or for that matter the availability of consent from the landlord (the two having slight difference in law) as claimed by him the said claim cannot be ignored and requires to be addressed. In the said circumstances the natural deprivation coming out has to be compensated in money terms for which the preferable scale is that of annual rental value and in the said circumstances as bearing from the record the plaintiff is found entitled to the period of occupation withheld on account of unavailable occupation coming out, liable to be valued in equal quantum of annul rental values available in this regard. As such the plaintiff is found entitled to recover the amount in accordance with annual rental value of the subject property for the period of occupation for which the evidence of the defendant is available bearing from Exhibit X- D/1 being the voucher of Pakistan Beverage Limited dated 09.03.2014 till the date of repossession acquired by the plaintiff accordingly. The same stands answered as discussed herein. ISSUE NO. 6 As to the issue of claim of losses the plaintiff has not brought up any material to get the same quantified and in view of the findings given on issue No.5 though applying here otherwise this issue is found not proved and no further discussion is required as such the same stands determined as not proved, but subject to the above discussion of issue No.5. ISSUE NO. 7 The suit as such on account of the discussion on issues Nos.1 to 6 stands decreed in favour of the plaintiff for possession of the subject premises along with money decree in accordance annual rental value of the subject premises from date of possession coming forward i.e. 09.03.2014 till recovery of the same along with markup thereon charged in accordance with bank rate as applicable annually but not by way of compounding till recovery thereof as an equalizer on account of prevailing inflation. The suit stands decreed as above, let a decree accordingly be drawn. SA/A-13/Sindh Suit decreed.