P L D 1964 (W (PLP)

5. The important point to be determined in this case is whether the defendant could continue to hold the property against the wishes of the plaintiff in consequence of the allotment which was made in his favour by Rehabilitation Authorities, even after the property had lost its character after the sale in favour of the plaintiff had been confirmed by the Custodian. In other words what was the status of the defendant with regard to this property after it had ceased to be an evacuee property. The further question which would then have to be determined is whether the plaintiff is entitled to recover possession of the premises. These questions are the subject‑matter of issues 1 and 2 and I shall now proceed to deal with them.

6. It would be necessary to refer to certain events and correspondence which took place in this case between the parties after the sale had been confirmed by the Custodian. As has already been stated this property was purchased by the plaintiff on 16‑11‑47 and the sale in his favour was confirmed by the Custodian on 14‑6‑

54. In the meantime it was allotted to the defendant on 26‑12‑53 by the Assistant Rehabilitation Commis sioner, Karachi on the direction of the Rehabilitation Commis sioner. A copy of this order has been produced by the defendant and has been marked as Exh. 6/36. The original has not been produced as it was said to have been lost. The question whether the defendant who had been an Under‑secretary in the Ministry of Rehabilitation until March 1953, had used any improper influence in getting this order of allotment is not material. It is enough for the purposes of this suit to note that in pursuance of the allotment the defendant occupied the premises on 26‑12‑

53. The sale having been confirmed in favour of the plaintiff by the Custodian on 14‑6‑54 the plaintiff sent a notice through his lawyer to the defendant on 5th August 1954, Exh. 6/20, informing him that the Custodian had confirmed the sale in his favour and the property having lost its character as evacuee property he was liable to summary ejectment and he was, therefore, called upon to vacate the premises and had over possession of it to the plaintiff by 31st August 1954, failing which legal action would be taken. He was also told that the plaintiff was not prepared to recognise him as a tenant and upon his failure to vacate by the aforesaid date he would be liable to pay compensation at the rate of Rs. 25 per day. The defendant replied through his Advocate on 20th August 1954 and in this the only demand made was that a copy of the order of confirmation should be sent. This was done by the plaintiff's Advocate on 23‑8‑54 and the copy was sent along with a covering letter, Exh. 6/25. Then something interesting happened. The defendant eventually realizing the weakness of his position went to the Custodian office on 30th August 1954, with an application of that date and got the rent of these premises fixed on that very day at Rs. 125 per month. All this is contained in Exh. 6/37 which is a printed form used by the Custodian Department Assessment Section, and the blanks have been filled giving the description of the property, the date of the application and the amount of rent fixed. It is obvious that until then the defendant, who was then a Director of Textile in the Government of Pakistan, had not paid anything on account of rent. He had already been informed by the plaintiff's Advocate that the Custodian had confirmed the sale and he must have known that the Custodian Department had no more jurisdiction to fix the rent of the property which had lost its character as evacuee property. I am inclined to think that he suppressed the fact of the confirmation of the sale from the Assistant Custodian, Assessment from whom he obtained the routine order of fixation of rent upon his application made on the same day. Being armed with this document, Exh. 6/37, he got his lawyer to write to the plaintiff's Advocate on the same day that is 30th August 1954, as per Exh. 6/26. No mention has been made in this letter that the defendant had obtained an order of fixation of rent on the same day and all that was said was that he was in legal possession of the house as a tenant and the change of ownership did not make any difference to his status as such. It was then added that if the plaintiff wanted to take any legal action against the defendant he was at liberty to do so. The plaintiff then approached the Chief Commissioner, Karachi who was also the Rehabilitation Commissioner, Karachi and he passed the following order on 16‑4‑55, Exh. 6/31 :‑ "House No. 723 in Garden East has been declared to be non‑evacuee property by the Custodian. It was allotted to Mr. Abdul Qawi, Director of Textile (Controls) and he is now occupying the house. I order that the house should be vacated in favour of the proprietor of the property whose sale has been confirmed by the Custodian ; but it can only be vacated when alternative accommodation has been provided for Mr. Abdul Qawi by the Estate Officer. A copy of this order must go immediately to the Estate Officer with a request that he will provide alternative accommodation for Mr. Abdul Qawi within a period of three months from today. These papers should be put up to me again after the period of three months has expired." Nothing happened and on 24th March 1956 the defendant's Advocate sent a cheque of Rs. 343‑3‑0 to the plaintiff and it was on this date that he informed him that the Custodian had fixed the rent at Rs. 125 per month. He asked for a receipt for this amount of Rs. 343‑3‑

0. The plaintiff's lawyer replied on 7th of April as per Exh. 6/28 returning the cheque and informing the defendant's Advocate that the defendant had never been accepted as a tenant and that this offer of rent had only been made to counter‑act the ejectment proceedings. The defendant was once again called upon to vacate and hand over possession to the plaintiff. The plaintiff having waited for two years after the order of the Rehabilitation Commissioner quoted above filed a writ petition in this Court being Writ Petition No. 21/57, and when the case came up for hearing the Advocate for the Rehabilitation Commissioner stated that the petitioner's appli cation under section 8 (2) (b) of Ordinance XIX of 1948 was still pending and will be disposed of as soon as possible. They were accordingly directed to dispose of that application and the case was accordingly filed. Then this matter was taken up by the Deputy Rehabilitation Commissioner and he passed an order on 26‑5‑58, Exh. 6/35, in which he disallowed the application for ejectment upon the ground that the defendant had not been provided with alternative accommodation and the power to eject under section 7 (2) (b) of the Rehabilitation Act XLII of 1956 was only discretionary. Having said this he referred the matter to the Rehabilitation Commissioner and the matter was heard by the Additional Rehabilitation Commissioner who passed an order on 8‑1‑59, Exh. 6/19, observing that section 7 (2) (b) did not make it obligatory on the Rehabilitation authority to eject a tenant consequent upon the declaration of an evacuee property as non‑evacuee property. He added that at the same time the owner Haji Dawood should not be deprived of the benefit of his property and that the Estate Officer should provide alternative accommodation so that Mr. Abdul Qawi may hand over vacant possession of the house to Haji Dawood. The plaintiff then filed the present suit.

7. The contention of Mr. Mazhar Ali, the learned Advocate for the defendant, was firstly, that notwithstanding the fact that the property had lost its character as evacuee property in this case after the confirmation of the sale in favour of the plaintiff, the power to eject continued to vest in the Rehabilitation Authorities and this power was invoked by the plaintiff, and the Rehabilitation Authorities having declined to take action under section 7 (2) (b) of Ordinance XIX of 1948 (which is equivalent to section 8 (2) (b) of Act XLII of 1956) the order of the Additional Rehabilitation Commissioner dated 8‑1‑59, Exh. 6/19, has become final and cannot be called in question by this Court in view of the provisions contained in section 18 (1) of Act XLII of 1956 (the equivalent provision in Ordinance XIX of 1948 is section 16). It was argued that the plaintiff's prayer for possession in the suit amounted to indirectly question ing the order of the Additional Rehabilitation Commissioner. Support for this argument was also sought to be drawn from subsection (3) of section 18 of Act XLII of 1956, which provides that no Civil Court shall be competent to eject or dispossess any person to whom any immovable property has been allotted or` leased by the Rehabilitation Authorities or by a Custodian or to issue an injunction or other order in relation to any act done or intended to be done by the Rehabilitation Authorities under the provisions of the Act. The argument was that this sub section (3) applies to all cases where any immovable property has been allotted by the Rehabilitation Authority and the intention was to protect the possession of such allottees notwithstanding the fact that the property may have lost its character as an evacuee property. I shall now proceed to examine these con tentions.

8. Section 8 (2) (b) reads as follows : "In particular and without prejudice to the generality of the powers conferred by the preceding subsection but subject to the provisions of this Ordinance, a Rehabilitation Authority may‑ (b) eject summarily with the use of such force as may be necessary any person in possession of any abandoned land, building, business or undertaking whose possession thereof has not been authorised by the Rehabilitation Authority or to whom such land, building, business or undertaking has been allotted (whether the stock‑in‑trade or machinery involved in the business or undertaking has been sold to him or not) but who has failed to observe any of the conditions of the allotment, or who has subsequently been found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property so allotted or any person in possession of any property which, after it has been allotted to him as evacuee property, has lost the character of being such property either by a declaration or by the operation of any other law for the time being in force. This subsection gives power to the Rehabilitation Authority to eject summarily an allottee of evacuee property when that property has lost the character of being such property. The fact, however, that the Rehabilitation Authority does not choose to exercise its power of summary ejectment under this subsection, A does not lead by any means to the result that a competent Court which has jurisdiction in respect of a non‑evacuee property is precluded from exercising such jurisdiction. In fact, this position was recognised in the order of the Deputy Rehabilitation Commissioner dated 26‑5‑58, Exh. 6/35, wherein it was stated as follows :‑ "It being a declared non‑evacuee property the owner has, open to him, the Courts of law which he can approach under the normal law of the land rather than evacuee laws." But, apart from this observation, the position is so clear that it does not admit of any doubt. Section 14 of the Pakistan Administration of Evacuee Property Ordinance XV of 1949 provides that‑ "a Rehabilitation Authority may, for the purposes of the rehabilitation of refugees or social or economic rehabilitation in Pakistan, allot any evacuee property to any person." It was conceded by Mr. Mazhar Ali that after the sale in respect of this property had been confirmed it had lost its character as evacuee property. It was also conceded that the power of the Rehabilitation Authority to allot could only be exercised in respect of a property which was evacuee property. But what was contended was that once an allotment was made the eviction could take place only under section 8 (2) (b) of the Rehabili tation Act. Apart from the fact that the acceptance of this argument would lead to absurd results and would leave the property perpetually into the hands of the allottee in spite of the property having lost its character, I am clearly of the opinion that the interpretation of section 8 (2) (b) given by the learned counsel is; on the face of it, untenable. In order to substantiate this argument it would have been necessary for the learned counsel to point out some law which may have provided that notwithstanding the fact that the property had lost its character as evacuee property, the allotment made in favour of a person would continue to remain in effect. Mr. Mazhar Ali conceded that there was no such provision. There could not be any, for the simple reason that the power of Custodian and of the Rehabilitation Authority under Ordinance XLII of 1956 is limited to dealing with evacuee property, and once that property ceases to be so the Rehabilitation Authority would have no further jurisdiction in the matter. All that they could do was if they were so inclined to eject such an allottee by summary process. It was held by the Supreme Court in the case of Yousaf Ali v. Aslam Zia (P L D 1958 S C (Pak.) 104) that when a property was allotted as evacuee property and that property lost the character of evacuee property, it was the duty of the authority which put the allottee in possession to remove him from possession if he did not willingly surrender possession and restore the property to the owner who was not an evacuee. I am, therefore, clearly of the opinion that this Court has power to make an order for posses sion notwithstanding the fact that the Rehabilitation Authorities had declined to exercise their power under section 8 (2) (b). There is no question of any finality attaching to their decision for the simple reason that all that they had said was that this was a matter of their discretion because of the word `may' used in that section and having regard to the fact that Mr. Abdul Qawi did not have an alternative accommodation they would not like to exercise their summary power of ejectment.

9. Coming then to section 18 (1) of Act XLII which was called in aid on behalf of the defendant it is enough to say that that section bars the jurisdiction of the Court to call in question any order passed by Rehabilitation Authority. In the present case, nothing of the kind is being done. All that the plaintiff is asking is that this Court should exercise jurisdiction in respect of the property which is no longer an evacuee property and in respect of which the power now lies only with the Civil Court in a matter like this. Section 18 may be reproduced for the purposes of examining the further argument which was based on sub‑clause (3) of section 18 :‑ "

18. Jurisdiction of Civil Courts barred.‑(1) Subject to the provisions of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1956, no order passed by a Rehabi litation Authority under this Act shall be called in question in any Civil Court in any suit, appeal, execution application or other proceeding. (2) All lands, building, business or undertakings or any movable property found therein, which have been taken over by any Rehabilitation Authority under the provisions of this Act, shall be exempt from attachment or sale in execution of a decree of a Civil Court or in pursuance of an order passed by any Court. (3) Subject to the provisions of subsection (1), no Civil Court shall be competent to eject or dispossess a person to whom any immvable property has been allotted or leased by a Rehabilitation Authority or by a Custodian or to issue au injunction or other order in relation to any act done or intended to be done by a Rehabilitation Authority under the provisions of this Act." The contention that the bar of subsection (3) continues even after the property has lost its character of being evacuee property, has no substance. Reading the three clauses of section 18, it becomes plain that the bar of the Civil Court in respect of the various things provided in these subsections presupposes that the property continues to be an evacuee property. Once the property loses that character the jurisdiction of the Custodian as well as of the Rehabilitation Authority itself comes to an end unless otherwise so expressly provided. An instance of such a provision is contained in section 8 (2) (b) where the Rehabilitation Authority has been given power to eject summarily an allottee in respect of a property which has lost its character of being an evacuee 'property. 1, therefore, reject the first contention of the learned counsel which was based upon section 18 of the Act.

10. The second contention of the learned counsel for the defendant which was urged in the alternative was that after the property had lost its character of being evacuee property the defendant became a tenant within the meaning of section 2(7) of the Karachi Rent Restriction Act (VIII of 1953). Sub section (7) reads as follows : 'tenant' means any person by whom or on whose account rent is payable for any premises and includes every person from time to time deriving title under a tenant and also every person remaining in possession of the premises leased to him after the determination of the lease with or without the consent of the landlord." It was argued that the defendant had come into possession of the premises as an allottee and was liable to pay rent to the Custodian and when the jurisdiction of the Custodian to receive this rent ceased he still remained a person by whom or on whose account rent was payable for the premises in suit. It was, therefore, urged that the plaintiff could not bring an action for eviction without a certificate from the Rent Controller as provided by this Act. I am unable to see the logic of this judgment. The property having lost its character as being an evacuee property, the allotment in favour of the defendant ceased to have any effect. His possession thereafter clearly became unauthorised. The plaintiff has at no time recognised the defendant as a tenant or has accepted any rent from him. I do not see how a person whose possession of property has become unauthorised by operation of law would be entitled to claim that rent is payable by him to the landlord. A tenancy is created by a contract. It does not come into being auto matically. If I was to accept the argument of the learned counsel it would mean that a person may trespass into somebody else's property or occupy it unauthorisedly or continue in occupation unauthorisedly and then claim that he has become a tenant because rent is payable by him to the landlord. Even under the old rent Act which provided for a direction by the Controller to the landlord to let his premises to a certain person there had to be an order before that persons could be described as what was commonly known as an allottee of the Rent Controller. There was no such direction by the Rent Controller in the present case and the Karachi Rent Restriction Act, 1953, even did away with that provision of direction. A somewhat similar contention was raised in the case before the Supreme Court cited above and was repelled. 1, therefore, reject this contention also.

11. The result of my conclusions recorded in the earlier paragraphs is that after the property had lost its character as being an evacuee property and the plaintiff called upon the defendant to vacate and give possession to him and the defendant failed to do so, his possession became wrongful and he became a trespasser. That being so, the plaintiff is entitled to the relief of possession in the suit. My finding, therefore, on the first issue is in the negative and on the second issue in the affirmative. In view of these findings Issue No. 3 which relates to the question of the validity of notice becomes irrelevant. It was so conceded by the learned counsel for the defendant.

12. The next question to consider is as to what com pensation should be granted to the plaintiff and this is the subject‑matter of Issue No.

4. The plaintiff has claimed compensa tion at the rate of Rs. 600 per month from 1‑5‑57, the rent for the previous 2J years having been barred by time. Mr. Munawar Abbas for the plaintiff has relied upon section 2 (c) of the Karachi Rent Restriction Act (VIII of 1953), as providing a basis for determining the reasonable rent of these premises assuming it had been let out. This clause provides that fair rent in relation to all premises constructed after the 15th day of August 1947, means such rent as shall secure to the landlord the net return of six per cent. per annum on the total cost after deducting the taxes, insurance premium and an amount equal to one and a half per cent. per annum of the total cost by way of expenses for maintenance and repairs. The total cost to include the value of the land and the cost of the construction of the premises. The plaintiff bought this property in the year 1947 for Rs. 45,

000. The building was incomplete and unfinished when it was so bought. There is abundant evidence to prove this fact. It was then got completed by the plaintiff, according to him, at a further expenses of Rs. 40,

000. This has been deposed to by the plaintiff's agent. There is then the evidence of Mr. Abdullah Pir Muhammad a chartered architect a person of high qualification. He said that the building was completed under his supervision. The work was done by a contractor under him. For the work done under the supervision of this architect the plaintiff had spent a sum of Rs. 32,

944. There was then the work of electric fittings and other things done, making a total cost of completion amounting to Rs. 35,

000. He has produced the final bill, Exh. 5/5, dated 26th August 1948, and there are the supporting documents showing measure ments and payments for various material. These are Exhs. 6/1 to 6/17. Exh. 5/7 is the notice given by the architect to the Chief Officer, Karachi Municipal Corporation on 18‑12‑47 about the proposed construction work under this architect. I, therefore, hold that the plaintiff spent a sum of Rs. 35,000 over the completion of this building. The architect has deposed that the value of the incomplete construction in the year 1948 would be Rs. 48,000 and of the land Rs. 22,480 and adding to this the additional expenditure of Rs. 35,000 of completion the total cost would amount to Rs. 1,05,

480. It is on this amount that Munawar Abbas contends, he is entitled to get 6% plus 11 % for maintenance and repairs. He admits that his client has not done any repair work during the period of occupation of the defendant but he contends that when he gets possession Lie will have to do a great deal of work which the building would require having not been repaired for all these years. He has further contended that this amount would be payable to him if the defendant had been a tenant, but in so far as his possession became wrongful the plaintiff is entitled to claim the double of this amount. He concedes that he has not claimed that much in his plaint but he stated that upon that ground he is at least entitled to Rs. 600 monthly which he has claimed in the suit. He relied upon two judgments of the Lahore High Court, one of these is the case of Madan Mohan Lal v. Firm of Messrs B. Borooah (44 I C 859). In this case it was held that in the case of a tenant holding over willfully and con tumaciously damages for use and occupation are assessed at double the ordinary rate. The same view was taken in a sub sequent case of Kirpa Ram Brij Lal v. Municipal Committee, Amritsar (A I R 1929 Lah. 547) where it was held that in estimating damages for trespass the Court is not restricted to the amount of rent for which the premises can be let, but can award double the amount of the rent. It must, however, be remembered that when this view was taken there were no rent restriction laws. After taking everything into consideration I have come to the conclusion that a sum calculated on the basis of 7 % on the total cost actually incurred and proved by the plaintiff would be a reasonable compensation to be granted in this case. The architect has given higher value of the land and the incomplete structure which he assessed in the year 1948, but the criterion according to clause (c) of section 2 of the Karachi Rent the actual cost in this case was Rs. 45,000 plus the sum spent on completion i.e. Rs. 35,000. 1, therefore, hold that the plaintiff s entitled to a sum of Rs. 18,000 as compensation calculated at the rate of 7t% on Rs. 80,000 which, according to him, is the actual cost incurred by the plaintiff from 1‑5‑57 till 30‑4‑60 and he would further be entitled at the same rate from the date of suit until possession.

13. Issue No. 7 relates to the question of jurisdiction and with this point I have already dealt at length while dealing with issues o and

2. I shall, however, briefly refer to the two pro visions which ark contained in this issue upon which the bar of the suit has been leaded. These are section 43 (7) of Act XII of 1957 and section 13 of Act XLII of 1956. Section 43 (7) of Act XII of 1957 provides that subject to the foregoing provision of this section any order made by the Custodihn shall be final and shall not be called in question in any Court. It was faintly urged by Mr. Mazher Ali that the Custodian having fixed the rent of the premises at Rs. 125 per month this could not be called in question in this suit. But, as I have pointed out earlier, this rent was fixed by the Custodian when the property had ceased to be an evacuee property anti even if the rent had been fixed before the confirmation of sale, it could only be effective till the property retains its character as evacuee property.

14. The other provision namely section 13 of Act XLII of 1956 also relates to the finality of the order passed by the Rehabilitation Commissioner or' the Additional Rehabilitation Commissioner etc. The argument was that the Rehabilitation Authorities having declined to exercise their power of summary ejectment under section 7 (2) (b) of this Act, that order has become final and an indirect challenge to this order by means of this suit cannot be permitted. I have already dealt with this point while dealing with Issues 1 and

2. My finding, therefore, on Issue No. 7 is in the negative.

15. In view of my findings I decree the plaintiff's claim for the possession of the property described in the plaint and in the opening part of this judgment. I also decree the plaintiff's claim for compensation for Rs. 18,000 and further compensation at the same rate of Rs. 500 per month from the date of suit until the date of decree and further until vacant possession is delivered to the plaintiff: The plaintiff shall also have the proportionate costs of the suit, I disallow the claim for interest. K. B. A. Suit decreed.