ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 229 of 2013

Date	Order with signature of Judge

1. For hearing of CMA No.3830/2014 (U/O VII R 11 CPC) :

2. For hearing of CMA No.2025/2013 (U/O XXXIX R 1&2 CPC) :

Malik Naeem Iqbal, advocate for the plaintiff.

Mr. Umar Hayat Sandhu, advocate for the defendant

along with Lt. Faiza, Dy. Chief, JAG Department.

Date of hearing : 16.04.2013.

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ORDER ON C.M.A. No. 3830 / 2014

NADEEM AKHTAR, J. – This application has been filed by the defendant under Order VII Rule 11 CPC for rejection of the plaint. The Suit has been filed by the plaintiff against the defendant for declaration and permanent injunction.

2. Mr. Umar Hayat Sandhu, learned counsel for the defendant, contended that the plaintiff is admittedly the owner of the suit property ; namely, eight (08) adjacent plots, collectively measuring 1,000 sq. yds., situated at the corner of Hawksbay Road and Khayaban-e-Rehman, Pakistan Navy Officers’ Housing Scheme, Hawsbay Road, Karachi ; the plaintiff is the tenant of the defendant in respect thereof by virtue of a lease agreement dated 15.02.1990 ; and, the said agreement expired on 14.02.2009. He further contended that this Suit has been filed by the plaintiff as the tenant of the defendant, and the main relief sought by the plaintiff is that the defendant / lessor be directed to execute fresh lease in favour of the plaintiff. He submitted that the plaintiff cannot dictate its own terms or compel the defendant to extend or renew an expired lease agreement, and the defendant was/is not obliged to renew the same as such discretion vests only in the defendant. It was urged that the plaintiff is not entitled in law for the said main relief, therefore, the other consequential reliefs prayed for by the plaintiff also cannot be granted. It was further urged that as the plaintiff has no right to remain in possession of the suit property after expiration of the agreement, the defendant has filed a rent case against the plaintiff for eviction, which is pending before the rent controller. Learned counsel submitted that the plaintiff has no right or legal character in the suit property, and in view of his above submissions, the plaint is liable to be rejected as the Suit is barred under Sections 42, 54 and 56 of the Specific Relief Act, 1877.

3. In order to appreciate the submissions made by the learned counsel for the defendant, and to ascertain whether the plaint is liable to be rejected or not, the contents of the plaint and the averments made therein were carefully examined by me. A bare perusal of the plaint shows that the plaintiff has specifically pleaded therein that there was a lease agreement between the parties in respect of the suit property for ten years which was renewed for a further period of ten years ; the rent / consideration is mentioned in the plaint ; the suit property was acquired on rent by the plaintiff to set up a petrol pump and service station, for which heavy investments were made by the plaintiff ; the terms and conditions of the agreement were never violated by the plaintiff ; the agreement expired on 14.04.2010, whereafter the parties started negotiations for its renewal ; the defendant principally agreed for the renewal, but was demanding exorbitant increase in rent ; after hectic efforts and deliberations between the parties, the terms and conditions of the renewal were finalized and the final draft lease agreement was prepared, whereby the rent was enhanced and was agreed at Rs.65,000.00 per month with an increase of 10% after every five years ; the agreement could not be registered for want of necessary documents which were to be arranged by the defendant ; and, the defendant received rent from the plaintiff till March 2013. It has been averred in the plaint that the plaintiff was shocked to receive a letter dated 17.01.2013 from the defendant, directing the plaintiff to vacate the suit property. It has also been averred that after issuance of the said letter, a meeting was held between the parties wherein the defendant agreed to accept rent from the plaintiff at the rate of Rs.100,000.00 per month from the date of execution of fresh lease, but vide its letter dated 14.02.2013, the defendant demanded rent at the rate of Rs.550,000.00. It has been specifically pleaded by the plaintiff that there is no dispute between the parties except that the defendant is demanding exorbitant increase in rent. It has been alleged that the defendant has threatened that coercive action will be taken to dispossess the plaintiff.

4. In the above background, this Suit has been filed by the plaintiff for (a) a declaration that the defendant (inadvertently mentioned as plaintiff) cannot charge excessive amounts and charging the same is unlawful, arbitrary, excessive, illegal and void ; (b) mandatory injunction seeking direction against the defendant to execute fresh lease in favour of the plaintiff in respect of the suit property on the mutually agreed terms and conditions stated in the letter dated 01.12.2013 ; (c) permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiff, and from dispossessing the plaintiff from the suit property without due course of law ; and (d) a declaration that the notice dated 17.01.2013 issued by the defendant to the plaintiff to vacate the suit property ; is illegal, unlawful, malafide and arbitrary, and to set aside the same.

5. The main thrust of the arguments of the learned counsel for the defendant was on prayers (a) and (b) whereby the plaintiff has sought a declaration that the defendant cannot charge excessive amount and a direction against the defendant to execute a fresh lease in favour of the plaintiff. It was contended by him that the defendant cannot be compelled to extend the lease, or to execute a fresh lease, or to accept the rate of rent against its will. He submitted that it is the sole discretion of the defendant to refuse the extension in lease or to extend the lease, and in case of extension, to demand the rent according to its choice. Regarding prayers (c) and (d), learned counsel conceded that, being the lessee, it is the right of the plaintiff that it’s possession should not be disturbed and it should not be dispossessed from the suit property without due process of law, and the defendant has initiated eviction proceedings against the plaintiff which are pending before the rent controller.

6. It is well-settled that for the purpose of rejection of the plaint, the averments and allegations made in the plaint are to be examined, and if upon a bare perusal thereof and assuming the same to be correct, a cause of action is spelt out from the plaint, it cannot be rejected. In Pakistan Agricultural Storage and Services Corporation LTD. V/S Mian Abdul Latif and others, PLD 2008 Supreme Court 371, the Hon’ble Supreme Court was pleased to hold that the term ‘cause of action’ represents all the requisites and facts which are necessary for the plaintiff to prove before he can succeed in a Suit. It is also well-settled that where a cause of action is disclosed, the question as to whether the plaintiff will be able to prove it or not, is irrelevant for deciding an application for rejection of the plaint. The accompaniments of the plaint and other undisputed material on record can also be looked into for this purpose. It is to be noted that under the law after expiration of the lease agreement, the plaintiff is now enjoying the lawful status of the statutory tenant of the defendant. Therefore, if it is assumed that the plaintiff is or will not be entitled to prayers (a) and/or (b) as argued by the learned counsel for the defendant, the plaintiff will still be entitled in my humble opinion to maintain this Suit for prayers (c) and (d), especially prayer (c), in order to safeguard its rights and possession as a tenant. It is a well-established principle of law that a plaint cannot be rejected in piecemeal, and for rejection of the plaint, it is necessary that the plaintiff should not be entitled to any of the reliefs sought therein. Therefore, the plaint cannot be rejected.

7. The allegations and counter allegations by the parties clearly indicate that they are at variance on questions of fact which cannot be resolved without recording their respective evidence. In my humble opinion, the plaint cannot be rejected in these circumstances without affording opportunity to the parties to adduce evidence and without providing them chance of hearing. This view expressed by me is supported by (1) Q.B.E. Insurance (International) Ltd. V/S Jaffar Flour and Oil Mills Ltd. and others, 2008 SCMR 1037, (2) Mst. Karim Bibi and others V/S Zubair and others, 1993 SCMR 2039, (3) Muhammad Younis Arvi V/S Muhammad Aslam and 16 others, 2012 CLC 1445 (Supreme Court AJ&K) and (4) Muhammad Afzal V/S Muhammad Manzoor and 40 others, 2013 YLR 85 (Supreme Court AJ&K).

8. In view of the above discussion, C.M.A. No. 3830 of 2014 filed by the defendant for rejection of the plaint is liable to be dismissed. These are the reasons of the short order announced by me on 16.04.2014, whereby the said application was dismissed with no order as to costs. It is, however, clarified that the observations made and the findings contained in this order, which are tentative in nature, shall not prejudice the case of any of the parties, and this Suit as well as the rent proceedings pending before the rent controller, shall be decided on merits strictly in accordance with law.

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J U D G E