1990 PLP 1116 (CLC)

The following consent issues were framed:‑‑ (1) Whether the Sindh Rented Premises Ordinance, 1979, is applicable to K.P.T. If not whether Hon'ble Court has jurisdiction to hear the suit? (2) Has this Hon'ble Court jurisdiction to entertain this suit for recovery of enhanced rent, while the Rent Controller appointed under the Sindh Rented Premises Ordinance, 1979 has exclusive jurisdiction to determine the fair‑rent of the suit premises? (3) Whether the defendants are not liable to pay rent under the lease deed from 1‑7‑1979 to 6‑7‑1979 and thereafter, the use and occupation charges claimed by the plaintiff? (4) Is the plaintiff entitled to demand unilateral enhanced rent of Rs.21.85 per sq. yard per annum, as stated in para. 4 of the written statement of defendants? If not what is the effect? (5) Whether defendants are not liable to pay interest from date of payment? (6) What should the decree be ? In view of the discussion and judgment in Suit No.1056/79 my findings are as follows:‑ Issue No‑

1. The Sindh Rented Premises Ordinance will not apply to the A present suit. The Court has jurisdiction to try this suit. Issue No.2. In the affirmative. Issue No.3. The defendants arc liable to pay rent from 1‑7‑1979 to 7‑7‑1979. After the expiry of lease on 7‑7‑1979 the defendants are liable to pay charges for use and occupation of the land. Issue No.4. In the affirmative. Issue No.5. In the negative. Issue No.6. The plaintiffs have examined witnesses who have stated that after the expiry of the lease as fresh terms and conditions for the renewal could not be mutually agreed upon, the defendants are trespassers and not tenants. In this regard after considering the evidence and arguments of the parties is Suit No.1056/79 it was held that the defendants are not tenants. In view of this finding the plaintiffs are not entitled to claim rent. They can only claim charges/damages for use and occupation of the land. The plaintiffs' evidence is completely contrary to the pleading. Instead of rent they claim charges for unauthorised use and occupation of the disputed premises. The defendants claim to be tenant but refuse to pay the rent claimed by the plaintiffs as it is not a mutually agreed rent. In this situation the question arises whether the plaintiffs are entitled to a decree claimed in the suit. A plaintiff is entitled to a relief which he claims in the plaint and proves by his evidence. The Court is empowered to mould the relief according to the facts and circumstances of the case, but no relief can be granted which a plaintiff has not sought in the piaint unless it is a general relief. The term as used in Order VII Rule 7 C.P.C. includes all such reliefs which are consistent with the averments made in the plaint. Consequently a Court will not grant a relief which is inconsistent with the case pleaded by the plaintiff. The plaintiffs' evidence and arguments advanced in this behalf are entirely to the effect that after the expiry of lease the defendants are in unauthorised occupation of the land and are not tenants. In these circumstances as there is variance between pleading and proof the relief sought by the plaintiffs cannot be granted. In this regard reference can be made to AIR 1940 Pat. 555 where following observation was made:‑‑ "The next question is whether the decree of the Court below awarding damages for use and occupation should be upheld. On behalf of the appellants reference is made to a decision of the Calcutta High Court in 17 CWN 311 where a Division Bench held that in a suit for rent, where no alternative claim is made for compensation for use and occupation, no amount can be decreed on that footing. The Court however pointed out that in a proper case the plaintiff might be allowed to amend his plaint but that such an amendment should be allowed only where a claim has been omitted by mistake or inadvertence or for similar reasons, and not deliberate. If the facts alleged by the plaintiff in the present case were such as would support a claim to recover damages for use and occupation, I would have no hesitation, even at this stage of litigation, in allowing the plaint to be amended so as to include an alternative claim for damages, but the case which the plaintiff pleaded was based on the relationship of landlord and tenant and it was the case which the defendants had to meet all through his litigation. In these circumstances I do not think it would be justifiable in second appeal to direct the plaintiff to change the ground of his claim. 1 would therefore set aside the decision of the Court of Appeal below and dismiss the plaintiffs suit." The suit is, therefore, decreed for Rs.57,200 being the rent from 1‑7‑1979 to 7‑7‑1979 @ Rs.3.50 per sq. yard per annum with no order as to cost. H.B.T./T‑86/K Suit decreed.