P L D 1959 (W (PLP)

The plaintiff has brought this suit for the recovery of possession of the bungalow standing on plot No. 383 situate in Sehwani Colony, Jamshed Quarter, Karachi, and for the recovery of Rs. 4,590 for its wrongful use and occupation at the rate of Rs. 90 per month from the 1st of July 1949 to the 30th of September 1953, together with future damages from the date of the suit until recovery of possession, as well as costs.

2. The plaintiff has alleged that the Rent Controller, Karachi, requisitioned the bungalow on the 26th of April 1949, and then de‑requisitioned it on the 1st of July 1949, and that by the order by which he de‑requisitioned the bungalow, he placed it at the disposal of the defendant. He has alleged that a copy of that order was not served on him. The order is alleged to be ultra vires, invalid and not binding on him. He has further alleged that on the release of the bungalow by the Rent Controller, the defendant wrongfully and without the consent of the plaintiff occupied the bungalow, has continued to retain its possession and refused to vacate it in disregard of the demands made by the plaintiff for vacating the premises. There is no allegation in the plaint that a demand for payment of damages for wrongful use and occupation of the bungalow was made by the plaintiff on the defendant.

3. The defendant has admitted in his written statement that the plaintiff is the owner of the property, and that the property was derequisitioned and placed at his disposal by the Rent Controller, but he has not relied on that order and has stated that the premises were allotted to him on the 6th of July 1949. The allotment order is Exh.

11. The defendant's further allegation is that rent was demanded from him at the rate of Rs. 90 per month, but he considered it to be unreasonable and, therefore, made an application to the Rent Controller for fixing the fair rent. The fair rent of the house as fixed by the Rent Controller was Rs. 66 per month, and, therefore, he offered to pay rent at that rate which was not accepted by the plaintiff. Moreover, the plaintiff did not pay Municipal taxes and did not carry out repairs, whereupon the defendant paid the taxes totalling Rs. 933‑9‑0 and made repairs and defrayed the expenses of repairs and white‑washing, which amounted to Rs. 771‑13‑

6. The defen dant's stand is that the plaintiff is not entitled to recover damages and that as he has refused to accept rent and filed the suit in spite of the readiness and willingness of the defendant to pay rent, the suit is liable to be dismissed with costs, and that, in any event, the plaintiff is not entitled to any costs.

4. Consent issues were submitted by counsel for parties on the 20th October 1954. At the time of hearing I obtained clari fication of the pleas of the plaintiff from his counsel and recorded his statement. In view of that statement, and the pleadings of the parties I have amended the issues. The amended issues are as follows :‑ (1) Whether the order of allotment dated the 6th of July 1949, is invalid on the ground ; (a) that notice of the proceedings in which it was made was not given to the present or the previous landlord ; (b) that a copy of the order was not served on the present or the previous landlord as required by subsection (2) of section 15 of the Sind Rent Restriction Act. (2) Whether the plaintiff can raise the plea contained in issue No. 1 without amending the plaint. (3) Whether the plaintiff is entitled to get any damages, if so, what amount ? (4) What amount of money was spent by the defendant in paying Municipal taxes, repairs and white‑washing etc. ? (5) To what amount, if any, is the defendant entitled on account of taxes paid and expenses incurred by him. (6) To what relief the plaintiff is entitled ? Issues No. 1 and 2.‑The plaintiff has challenged the validity of the Rent Controller's order dated the 1st of July 1949, on the ground that the Rent Controller placed the premises in suit at the disposal of the defendant simultaneously with derequisitioning it. The defendant has made it clear in his written statement, which was submitted in August 1954, that he did not rely on that order, and that he was entitled to occupy the premises in virtue of the order of allotment dated the 6th of July 1949. After coming to know of the ground on which the defendant claimed to be the tenant, no steps were taken on behalf of the plaintiff to dispute the correctness of the stand of the defendant. It was in view of this state of the pleadings that I recorded the statement of the plaintiff's counsel before recording the evidence of the parties. Counsel explained that the order of allotment was considered by him to be invalid on two grounds : firstly, because no notice was given to the plaintiff of the proceedings in which the order of allotment was made ; secondly, because a copy of the allotment order was not served on the plaintiff within 10 days after the date of the order in terms of subsection (2) of section 15 of the Sind Rent Restric tion Act. I pointed out to ‑him that the plaintiff was not the proprietor of the bungalow in the month of July 1954, when the order of allotment was made, because according to the certified copy of the extract from the Property Register of the City Survey of the locality in which the bungalow in dispute is situated, sub mitted by the plaintiff himself along with the plaint, the sale deed was registered on the 22nd of October 1949. The plaintiff there fore could neither expect a notice of the proceedings to be given to him, nor a copy of the order of allotment to be served on him. In reply counsel alleged that the required notice of the proceedings was not given to the previous landlord ; nor was a copy of the order of allotment served on him. I pointed out to him that this plea was a wide departure from the contents of the plaint and ought to have been raised by amending the plaint. His answer was that the defendant was bound not only to allege that he held an allotment order but also to establish that it was a valid and subsisting allotment order, and, that therefore, he could challenge the validity of allotment order without raising any plea in that regard. I am afraid this is a mistaken view. The objections on which counsel wants to rely raise questions of fact, and are not pure questions of law. The facts on which the plaintiff wanted to rely ought to have bean pleaded to enable the defendant to disprove them. I must point out in fairness to the plaintiff that objections as to the legality, binding nature and vires of the allotment order were embodied in issues No. 2 and 3 of the consent issues; but as counsel admitted that those objections were of no value without the basis of the allegations of facts now made by counsel. The facts alleged by him are embodied in the amended issue No. 1

6. If I had not amended the issue, I could have straightway dismissed the claim of the plaintiff for possession of the property, and proceeded only to consider whether I should decree the suit for rent instead of damages for use and occupation. I felt that in order to do full justice I should embody the allegations of fact raised by counsel for the plaintiff in issue No. 1, and also frame issue No. 2 to consider whether those pleas could be raised without amending the pleadings.

7. As far as the proof of the alleged facts is concerned, there is nothing in the evidence produced on behalf of the plaintiff to show that notice of the proceedings in which the allotment order was made was not given to the previous landlord ; nor is there anything to prove that a copy of the allotment order was not served on the predecessor‑in‑interest of the plaintiff. Two witnesses have been examined on behalf of the plaintiff. P. W. 2 Siddiq Haji Habib, brother and attorney of the plaintiff could not know what information was conveyed by the Rent Controller to the previous landlord. P. W. 1 Sayeed Ahmed, Requisition Clerk of the Rent Controller's office, was therefore also summoned with the record of the relevant proceedings. The Requisition Clerk has admitted that the record which he brought was neither complete in respect of the allotment of the premises nor in respect of fixation of the fair rent. His statement, therefore, is of no help to prove that notice of the proceedings was not given to the previous landlord, or that a copy of the allotment order was not served on him. P. W. 2 has admitted that his father attended the proceedings in which the fair rent was, fixed. Exhibit 7 also shows that a representative of the plaintiff was present when the application of the defendant for fixing the fair rent was disposed of. Counsel for the defendant has laid stress op the fact that no objection was raised on behalf of the plaintiff against that application of the defendant on the plea that he was not a tenant. He has urged that if the plaintiff had any doubt regarding the validity of the allotment order, then the application of the defendant for fixing the fair rent would have been opposed on behalf of the plaintiff on that ground. However that may be, there is no proof on record that the allegations of fact, which are the basis of the plaintiff's objection to the validity of the allotment order, are correct. 7‑A. The defendant has stated in his evidence that Mr. Justice Inamullah had told him that he knew of allotment order and that a copy of the allotment order was seen by him with his wife who was the previous landlord. Counsel for the plaintiff made a request during the evidence of the defendant that Mr. Justice Inamullah should be examined on commission in order to contradict the statement made by the defendant. This is unnecessary because the portion of the defendant's statement relating to what he was told by Mr. Justice Inamullah is not admissible in evidence.

8. In view of the above, my conclusion is that the plaintiff has failed to prove the pleas of fact raised by his counsel and that, therefore, there is no reason to hold that the order of allotment was invalid. Issue No 1 is, therefore, decided against the plaintiff.

9. I should mention that it was a mistake to omit to raise the pleas of fact now raised by counsel for the plaintiff by amending the plaint. They could not be left to be raised during the evidence or just before the time of recording the evidence. The Privy Council pointed out in Lala Hem Chand v. Lala Pearey Lal (A I R 1942 P C 64) that important facts forming the basis of a party's case should not be allowed to be brought on record to then course of evidence unless the pleadings were amended and necessary issues were framed. Otherwise, the course of a trial would become discursive, surprises would arise and decisions would become perfunctory. Issue No. 2 must accordingly be against the plaintiff. Issues No. 3, 4 and 5 :‑

10. It follows from the foregoing that the defendant is a tenant and that, therefore, the plaintiff is not entitled to get damages for the use and occupation of the premises. He should however be granted a decree for rent because the defendant has expressed his willingness in paragraph 8 of the written statement to pay rent though he has contended that he is liable to pay it at the rate fixed by the Rent Controller, and that the taxes paid by him and expenses incurred by him for repairing and white‑washing the premises should be deducted from the rent. The fair rent according to Exh. 7 and Exh, 29 is Rs. 66 p.m. The plaintiff has not received rent from the date of the occupation of the defen dant. The date of occupation according to para. 6 of the plaint is the 1st of July 1949, but the defendant has stated in his evidence that he occupied the premises on the 6th or 7th of July 1949. Taking the latter date to be correct, the plaintiff is entitled to rent for four years and three months from the date of occupation to the institution of the suit. Under Article 110 of the Limitation Act, a. claim for rent for more than three years is barred by time. The defendant has admitted his liability to pay rent in his written statement, but section 19 of the Limitation Act ,does riot extend[ the period of limitation because the acknowledgement was made, after the expiry of the period prescribed for instituting a suit for the recovery of rent. The result is that the plaintiff is entitled to~ recover rent for three years only. The amount recoverable by him as rent is, therefore, Rs. 2,376 (Two thousand three hundred and seventy‑six) only at the rate of Rs. 66 per month. Counsel for the plaintiff conceded that the defendant was entitled to deduct the taxes paid by him. Exh. 13 to Exh 15 show that the defendant paid Rs. 666‑2‑0 upto the institution of the suit Karachi Municipal Corporation towards taxes. The proof expenses incurred by him towards the repairing and the premises, contained in Exh. 22 to Exh. 27 is not because, firstly, there is no evidence to show that the repairs necessary and, secondly, the expenses were incurred consent of the landlord or the Rent Controller. I shall, therefore, allow only the taxes paid by the defendant upto the institution of the suit. After deducting them from the rent due up to the institution of the suit, the plaintiff is entitled to a decree for Rs. 1,709‑14‑0 as rent.

11. Issue No. 6.‑The plaintiff is accordingly granted a decree for Rs. 1,709‑14‑0 (One thousand seven hundred and nine and fourteen annas). He is not granted costs owing to his refusal to accept rent. A. H. Order accordingly.