1988 PLP 1170 (MLD)

The above suit has been filed by the plaintiff for the recovery of Rs.65,000, being the amount of rent for the period commencing from 1‑1‑1952 to 30‑11‑1962 at the rate of Rs.500 per month in respect of a portion of land measuring 100' x 75' on the front side of the road of survey number 240, hereinafter referred to as the additional land, situated in Deh Thana, Tappo Malir, Taluka Karachi.

2. The brief facts leading to the filing of the above suit are that the plaintiff after obtaining a lease of a portion of land measuring 100' x 75' of Survey Number 245, Deh Thana, Tappo Malir, Taluka Karachi from its owner Ghulam Muhammad, hereinafter referred to as the land, granted sub‑lease to the defendant in January 1952 which sub‑lease continued upto 30‑4‑1967. It is the case of the plaintiff that the defendant occupied the additional land though the same was not subject‑matter of the sub‑lease. It is also the case of the plaintiff that the defendant paid rent for the additional land for the period from December 1962 to 30‑4‑1967 but had not paid the rent for the above period commencing from 1‑1‑1952 to 30‑11‑1962 and that they promised to pay the same under their letters dated 8‑12‑1964 and 29‑12‑1964 after the finalisation of the litigation pending in the form of interpleader Suit No.237 of 1963 filed by the defendant in respect of the right to receive rent for the land as some other persons had also made a claim in respect of the land. It is also the case of the plaintiff that since the above litigation was finalised on 21‑8‑1968 and as the defendant had not paid the above amount, he has filed the present suit.

3. The above suit is resisted by the defendant inasmuch as it has been denied that an" promise was made by the defendant for payment of rent in respect of the additional land or that the plaintiff has any right to claim any rent in respect thereof. The duplicate copy of the receipt dated 23‑9‑1968, Annexure to the plaint has also been denied. By consent of the learned counsel for the parties as many as 16 issues were adopted by a learned Single Judge of this Court on 4‑5‑1970. However, with the consent of the learned counsel for the parties, I have recast the issues and have framed the following four issues:‑ "(1) Whether the suit is barred by limitation? (2) Whether the defendant agreed to pay rent for the alleged additional land? (3) Whether the plaintiff had any legal right or title to claim rent for the additional land prior to the date of purchase in December, 1962? (4) Whether documents marked 'X' and 'X‑1.' contain the signature of the plaintiff?"

4. In support of the claim in the suit the plaintiff examined P.W.1 Anwarul Majid Khan, an Ex‑District Sales Manager in the defendant company, P.W.2 Zaheeruddin who was allegedly present at the time of signing of the above receipt, duplicate copy of which is referred to in para 8 of the plaint, P.W.3 Khurshid Muhammad, another witness present at the time of signing of the documents, P.W.4 the plaintiff himself and P.W. 5 S.H. Siddiqi, Handwriting Expert, whereas the defendant has examined D.W.1 Khurshid Ahmad Oureshi, Handwriting Expert, D.W.2 Murtaza Hussain an Executive in the legal section of the defendant company and D.W.3 Khan Amir, an employee with Baluchistan State Oil Company and an ex‑employee of the defendant.

5. I intend to deal with the above‑quoted issues in seriatim. ISSUE NO.1. It may be observed that in the written statement no specific plea has been raised as to the limitation but the learned counsel for the defendant, while I was recasting the issues had requested that I should frame an issue on the limitation as the suit is barred by limitation on the face of it and no further evidence is required to deal with the above question. He had submitted that in view of section 3 of the Limitation Act, it was the duty of the Court to examine the question of limitation. Adverting to the merits of the above issue, it may be observed that the plaintiff has claimed arrears of rent for the period commencing from 1‑1‑1952 to 30‑11‑1962 for the additional land. The relevant Article provided, for in the First Schedule to the Limitation Act is Article 110, which reads as folloivs:‑ "Description" of Suit. Period of limitation. Time from which period begins to run.

110. For arrears of rent. Three years When the arrears become due." It is evident that for arrears of rent three years period has been provided for from the date when the arrears become due. Mr. Nasim Farooqi has referred to the case of Attaullah Malik v. Rashid and another, reported in P L D 1972 Kar. 273, in which a Division Bench of the erstwhile High Court of Sind and Baluchistan had held that a suit for recovery of rent could only be filed when rent becomes legally recoverable and the period is three years under Article 110 of the First Schedule to the Limitation Act. In the present case the suit was filed on 27‑5‑1969. It is, therefore, evident that the suit is barred by limitation if I were to compute the period even from the last date of the period for which the arrears of rent is claimed. I may observe that Mr. Nasim Farooqi, learned counsel for the defendant has rightly pointed out that when a plaintiff claims rent month to month then the cause of action will arise for the recovery of rent for each month when the rent becomes due and payable for the month concerned. In my view, it is not necessary to go into the above question as I have pointed out hereinabove that even if I were to compute the period of limitation from the last date of the period for which the arrears of rent are claimed, namely 31‑11‑1962, the suit is admittedly time‑barred. However, Mr. Afzal Nabi learned' counsel for the plaintiff has relied upon Exh.P.23 which is an alleged photostat copy of defendant's employee's letter dated 29‑12‑1964, namely, D.S. Lall in which promise to pay had been allegedly made. It will be advantageous to reproduce the contents of the same, which read as follows:‑ December 29th, 1964 in reply please refer to : 5910 Malir Outlet No.12. Mr. Anwarul Haque, 4‑440 Drigh Colony, Karachi‑25 Dear Sir, With reference to your letter dated December 15th, 1964 we inform you that we will pay you rent of the additional land from 1952 after decision of the cases pending in Courts. Very truly yours, Sd/‑ D.S. I‑ALL." It may be pointed out that the plaintiff has not produced the original of the above letter on the plea that the same had been handed over to the legal department of the defendant company for settlement of his claim. The defendant has denied the factum of having issued the above letter or that the same was delivered back to its legal department for settlement. The plaintiff in order to prove the averments has examined P.W.1 Anwarul Majid Khan, Ex‑District Sales Manager, who left the service of the defendant on 19‑8‑1968. He has supported the plaintiff's above averments. It may be observed that in none of the documents except in Exh.P.13, which is the plaintiff's letter dated 13‑2‑1968, reference to this document has been made. It is the case of the plaintiff that he has not obtained any receipt for the delivery of the original of above Exh.P/23 or any other document. I am very much doubtful whether factually Exh.P.23 was issued by the defendant's employee mentioned therein. Be that as it may, even if I were to accept the genuineness of the above Exh.P.23, it will not improve the case of the plaintiff as admittedly under section 19 of the Limitation Act the period of three years is to be computed from the date of acknowledgement and that period of three years would expire on 28‑12‑1967, whereas the suit was filed on 27‑5‑1969. 1 However, it was urged by Mr.Afzal Nabi learned counsel for the plaintiff that in the above‑quoted letter Exh.P.23 promise was made to pay after the decision of the cases pending in the Courts and since the above interpleader suit was withdrawn by the defendant on 21‑8‑1968, the cause of action in fact accrued to the plaintiff last on the above date. In my view, if the above letter is to be construed as an acknowledgement, the period of limitation would commence from the date of making of acknowledgement in terms of section 19 of the Limitation Act and not from the date of the withdrawal of the suit. I am, therefore, inclined to hold that the suit is barred by limitation and, therefore, is liable to be dismissed. Accordingly, my answer to the above Issue No.1 is in the affirmative. ISSUE N0.2. I have already, to some extent, dilated upon the question whether the defendant had made any promise to pay under to pay under the above letter dated 29-12-1964 Ex.P/23. I may again point oat that the plaintiff has not filed the original of x.P/2.i and the explanation given by him for the alleged delivery of the original co the defendant's legal department does not inspire confidence. If the defendant was to pay the arrears of rent for the additional land for the period in question upon the finalisation of litigation which according to the defendant was finalised when the defendant withdrew the interpleader suit No.237 of 1963 from the Court of a learned Civil Judge, Karachi on 21‑8‑1969, there was no occasion for the plaintiff to have delivered the original of the above letter before withdrawal of the above suit. Admittedly P.W. Anwarul Majid Khan, EX.District Sales Manager, "'ho has been examined by the plaintiff to prove the above Ex.P/23 and the factum of delivery of the same, to the legal department of the defendant company, had admittedly left Karachi office on 15‑12‑1967 and thereafter the service of the. defendant on 19‑8‑68 and therefore he could not have witnessed the delivery of the original of the above letter to the defendant company's legal department. I am, therefore, not inclined to believe the above witness. The above inclusion is fortified by the factum that this letter has not been referred to in any of the letters except Ex.P/13, referred to hereinabove and also by the fact and in the alleged receipt for the receipt of arrears of rent for the additional land for the period commencing from December 1962 to 30‑4‑67 alleged duplicate copy of .which is enclosed as marked 'C' to the plaint and is exhibited as Ex.P/8‑1 does not contain any reference to the above admission. It may be advantageous to reproduce the above Ex.P8/1, which reads as follows: Received on 23‑9‑1968 from Messrs Esso Standard Eastern Inc. Karachi Cheque No.7814 dated September 18, 1968 for Rs.26,500 (Rupees twenty‑six thousand five hundred only) being the amount of rent of land measuring LM' x 35' in Survey Nto.240 Dch Thano Tappo Malir Karachi on which Fairdeal Service Station of Esso Standard Eastern Inc. was situated from December, 7962 to 30th April, 1967 at the rate of Rs.500 per month without prejudice to all my legal rights and claims for its rent from January, 1952 to November, 1962. Sd/‑ ANWARUL HAQUE." Dated September 23, 1908. I may mention that the defendant had denied the factum that they had received the above receipt. Their case is that they were issued receipt which is marked `X‑1 and which was referred to the Handwriting Expert. According to the above receipt marked `X‑1' the plaintiff had received Rs.26,500 for the additional land for full and final settlement of his claim. Be that as it may, I am inclined to hold that the plaintiff has failed to prove that factually Ex.P/23 was issued by any employee of the defendant or that the original of the same was delivered by the plaintiff to the legal department of the defendant company. My finding on Issue No.2 is in the negative. ISSUE NO 3 The case of the plaintiff is that since the defendant had occupied the National land, which was not the subject‑matter of the lease between the Plaintiff and said Ghulam Muhammad and sub‑lease between the plaintiff and the defendant, he obtained a lease for the additional land from Ghulam Muhammad and paid rent at the rate of Rs.50 per month.. The plaintiff' has not produced any lease document in respect of the additional land. He had purchased land under a sale‑deed dated 18‑12‑1962 in his minor favour of his minor son Salim Ahmad aged 4 years. If the defendant was not given the possession of the additional lane by the plaintiff, he cannot claim any, rent from the defendant in the absence of and agreement, nor he could have claimed rent for the period in question on the basis of the above sale‑deed which is of a date subsequent to tire expiry of the above period. In my view if the defendant was using the additional land without being I inducted into possession by the plaintiff or by its owner Ghulam Muhammad, the defendant might lave been liable to pay damages for the use and occupation to the owner and not to the plaintiff even if it is to be conceded that the plaintiff had paid rent for the additional land which factum has not been proved at no one has been examined to prove the factum of payment of rent for the additional land. My finding on the above Issue No.3 is in the negative. ISSUE NO.4. It may be observed that document marked `X' is an alleged declaration executed by the plaintiff on 18‑9‑1968 on Rupees four non‑judicial stamp paper allegedly accepting the aforesaid sum of I2s.26,500 ‑n. respect of the additional land in full and final settlement upto 30‑4‑1967, whereas `X‑I' is the receipt for ,the above amount allegedly executed by the plaintiff. The plaintiff has den‑led the: factum of having executed the above document or the receipt. According to him he had executed the receipt, duplicate of which is marked `C' referred to in para.8 of the plaint. The plaintiff has examined P.W.S, S.II. Siddiqui, a Handwriting Expert to prove the factum that the signatures on the above two documents are not of the person who signed the admitted signatures, whereas the defendant has examined D.W.1, Khurshid Ahmad mureshi another Handwriting Expert, who has deposed otherwise. I have compared the signatures on the above two documents with the admitted signatures. There seems to be some dissimilarity. However, it cannot be I concluded conclusively whether factually the signatures on the above two documents are not of the plaintiff or are of the plaintiff. Since I have decided the other issues against the plaintiff, in any view it is not necessary to examine in detail the above question.

6. The upshot ox the above discussion is that the suit is dismissed but there will be no order as to costs. AA‑/A‑324 /K Suit dimissed.