TRUSTEES OF THE PORT OF KARACHI vs Messrs HYESONS COMMERCIAL &

1. ' This is a suit filed by the plaintiffs for recovery of Rs.1,67,168 being the charges for use and occupation of plot No.47 West Wharf for the period 1-1-1981 to 31-12-1981. Under a registered lease deed the plaintiffs had leased out to the defendants land bearing No.47 Industrial Area, West Wharf, Karachi @ Rs.3.50 per sq. Yards per annum for a period of twenty five years from 7-7-1954.

2. After the expiry of lease it was to be extended on terms mutually agreed upon between the parties.

3. The plaintiffs demanded rent @ Rs.21.85 per sq. Meter per annum which was not accepted by the defendants. The plaintiffs threatened to take action against the defendants who filed suit No.1056/79 against the plaintiffs. With the consent of the parties both the suits have been tried together and the evidence in suit No.1056/79 has been read as evidence in this suit also. The plaintiffs' claim this amount in suit being the charges for unauthorised use and occupation as the lease has expired on 7-7-1979 and thereafter in terms of the lease deed it has not been renewed as both the parties have not mutually agreed to the terms of new lease.

4. ' The defendants have pleaded that this Court has no jurisdiction to entertain this suit for reccvery of enhanced rent as the Controller has the exclusive jurisdiction under the Sind Rented Premises Ordinance, 1979. Alternatively it was pleaded that the rent claimed by the plaintiffs is arbitrary, illegal, and exorbitant. The defendants claim to be statutory tenant after the expiry of lease. The plaintiffs claiming rent at arbitrary rate unilaterally threatened to take action. The defendants filed suit No.1056/79 raising all the pleas mentioned in this written statement. Thereafter the plaintiffs filed suit No.339/81 for recovery of rent from 1-7-1979 to 30-6-1980 and another suit No.379/82 was filed for recovery of rent for the period 1-7-1980 to 31-12-1981. In all these suits the defence is common which is identical to the averments made in the plaint of suit 1056/79. It has been pleaded that the plaintiffs can not eject the defendants under Order IX of 1962. Relying on these averments in the written statement the defendants have filed counter claim praying for a permanent injunction against the plaintiffs restraining them from ejecting the defendants from the disputed premises directly or indirectly through their servants or SDM (Harbour) Karachi till the final decision in this suit.

5. ' The following issues were framed:-

(1) Has this Hon'ble Court jurisdiction to entertain this suit fcr recovery of enhanced rent, while the Rent Controller appointed under the Sind Rented Premises Ordinance, 1979, has exclusive jurisdiction to determine the fair rent of the suit premises?

(2) Since the expiry of the Registered Lease on 7-7-1979, has the defendants become a statutory tenant, If so, what is the effect?

(3) Is the plaintiff entitled to demand unilaterally enhanced rent of Rs.21.85 per sq. Meter per annum as against earlier rent of Rs.3.50 per sq. Yard per annum, as stated in para. 4 of the written statement of defendants? If not what is the effect?

(4) Is the plaintiff entitled to any relief as prayed for in this suit?

(5) What should the decree be?

6. ' With the consent of the parties this suit has been tried with suit No.1056/79 and evidence recorded in that suit has been read as evidence in this suit also. ISSUE NO.1: ' This plea was raised by the defendants in suit No.1056/79 in which it has been held that in the facts and circumstances of the case this Court has jurisdiction to try the suit. In view of the judgment in suit No.1056/70 my findng is that the Court has jurisdiction to entertain and try the suit.

7. ISSUE NO.2.

8. ' In view of judgment in suit No.1056/79 after the expiry of the lease, the defendants did not become a statutory tenant. They are in B unauthorised occupation of the disputed premises. My finding is in the negative.

9. ISSUE NO.3.

10. ' In view of judgment in suit No.1056/79 the plaintiff is entitled to demand charges for use and occupation of the land (and not rent) C @ Rs.21.85 per sq. Meter per annum.

11. ISSUES NOs. 4 & 5.

12. ' The plaintiffs have claimed charges for the use and occupation of the land for the period 1-1-1982 to 31-12-1982. Mr. Zari has contended that part of the claim is barred under Order II rule 2 C.P.C. As suit No.397/82 was filed on 15-9-1982 claiming charges for the period 1-7-1980 to 31-12-1981 and the plaintiff have thus omitted to claim charges for the period 1-1-1982 to 30-8-1982. Although this plea has not been raised by the defendants specifically in the written statement nor any specific issue has been framed, Mr. Zari has pressed it in service under these issues. The learned counsel for the defendants has not opposed this plea on this technical ground. As the plea is a question of law based on the admitted facts on record and does not D require any evidence, I have permitted the learned counsel to raise it. At the time when suit No.397/82 was filed the plaintiff could have claimed charges for use and occupation of the land from 1-7-1982 to 30-8-1982. The omission to sue for this claim attracts the provisions of Order II rule 2 C.P.C. Reference can be made to PLD 1970 SC E 63 and 1983 CLC 483. The plaintiffs' claim for the period 1-1-1982 to 30-8-1982 is barred under Order II, Rule 2, C.P.C. In view of judgment in suit No.1056/79 the plaintiffs are entitled to charges for use and occupation of the land from 1-9-1982 to 31-12-1982, amounting to Rs.55,722.64. The defendants have also filed counter claim seeking permanent injunction against the plaintiffs restraining them from ejecting the defendants from the disputed premises till the decision of the suit. The nature of relief sought suggests that defendants F wanted relief of an interim nature during the pendency of the suit. Permanent injunction in terms as prayed by the defendants cannot be granted. In view of the findings under issues No.1 and 2 and the judgment in suit No.1056/79 the defendants are not entitled to these reliefs claimed in the counter claim. The counter-claim is dismissed. ' for Rs.55,722.64 with proportionate cost. CounteriG claim is dismissed with no order as to cost.