' KHALID ALI Z. QAZI, J.---This judgment will dispose of the instant suit filed by the plaintiff for declaration, possession, injunction and mesne profit.
2. The brief facts necessary for disposal of the suit as stated in the memo. Of plaint are that by means of a registered conveyance deed dated 27th June, 2006, executed between the plaintiff and one Mr. Jaffery Joseph, son of Anthony Joseph, through his duly constituted attorney Mrs. Agnes Joseph, wife of Anthony Joseph, the plaintiff acquired lease hold rights of an immovable property, being Flat No,B-4, Block-B, 1st floor, Oommen Apartment, measuring 900 sq. Feet or thereabouts, raised and constructed in a building located on plot Survey No,559, Survey No,JM-3, (old Survey No,63/1) measuring 1284 square yards, Catholic Corporate Housing Society Ltd. Jamshed Quarters, Karachi.
3. It is further alleged that when the plaintiff went to take the actual physical possession of the flat, it transpired that it is in illegal occupation of the defendant who claimed that he was living in the flat with his deceased mother, who was a house maid of the children of the previous owner of flat, which previous owner has migrated to Canada. At this, the plaintiff contacted the previous owner when it was informed that at the time of migration to Canada, the previous owner of the flat requested defendant's mother to vacate the flat but.At this late mother's instance, the flat was not got vacated as the defendant's mother had no other place to live. This was purely an indulgence of the previous owner of the flat on humanitarian grounds. However, mother of the defendant till her death about two years ago did not vacate the flat and the defendant also failed to vacate the flat despite repeated requests. The defendant is thus a trespasser and/or is illegal occupant of the flat.
4. It is further stated in the plaint that the plaintiff kept trying to get the possession of the flat back from the defendant by invoking the previous owner of the flat, who is also the real brother-in-law of the plaintiff. The defendant kept on insisting and requesting the plaintiff and his brother-in-law that he would vacate the flat soon and kept gaining time. Vacation of the flat not forthcoming, in the first instance the plaintiff approached the incharge, Penchayat Committee, UC 10 for vacation thereof. Subsequently the plaintiff withdrew his application to pursue his remedy before a competent Court of law and in such regard the plaintiff sent notice to the defendant for vacating the flat within fortnight. The notice was duly received by the defendant instead of responding to the notice, the defendant chose not to do the same. This inaction of the defendant in respect of the Notice establishes the fact that he has admitted each and every content of the notice.
5. It is further stated in the plaint that the market value of the flat has increased manifolds and presently in the vicinity of Rs,2 to 2.5 million. If the flat would have been let out, atleast minimum monthly rent of Rs,15000 could have been easily fetched. Because of illegal and unauthorized occupation of the flat by the defendant, the plaintiff has been deprived of his monthly income, which,, as mentioned above, could have been atleast to the extent of Rs,15000 per month.
Therefore, the plaintiff under the circumstances is entitled to mesne profit/monthly rent Rs,15000 per month from the date of the conveyance deed viz. 27-6-2006 till date, which amount comes to Rs,225000 with further mesne profit/monthly rent at the same rate with 10% increase annually till such time that the payment is actually made by the defendant and realized by the plaintiff.
6. It is further stated that besides plaintiff's entitlement to the above amount, the defendant is liable to make the payment of Rs,3.00 million as compensation/ damages for the mental anguish that has been caused by him. The above amount of forthcoming together with the possession of the flat, present suit has been preferred.
6-A. Notice issued to the defendant returned served as per bailiff report 'dated 7-1-2008 available on record. In spite of service neither the defendant has filed written statement nor has come forward to conflict the contentions of the plaintiff raised in the plaint despite the facts that ample opportunities were provided to the defendant for filing written statement but he failed to appear and file the same as well as failed to contest the matter, ultimately defendant declared ex parte vide order dated 19-5-2008 and the plaintiff was directed to file affidavit-in-ex parte proof.
7. On 12-9-2008, the Examination-in Chief of the plaintiff was recorded, which too has gone unchallenged and unrebutted as the defendant failed to cross-examine the plaintiff. During the course of Examination in Chief the plaintiff exhibited all the documents in his favour which has also gone unchallenged.
8. The plaintiff filed affidavit in ex parte proof on 19-5-2008 and exhibited the same during the course of examination in chief as Exh. P/1 and supported all the contentions raised in the memo. Of plaint.
7.(sic) I have heard the learned counsel for the plaintiff at great length and perused the record available on record. On the contrary none appeared by and on behalf of the defendant to contest the matter are rebut the contentions raised by the plaintiff in the plaint as well as during the course of arguments.
8.(sic) From perusal of the record, it reveals that extensive chances were given to the defendant to protect his defence but he failed to appear before the Court to contest the matter. Further the documents annexed with the plaint as well as exhibited at the time of cross-examination has also gone unchallenged due to non-appearance of defendant. The defendant by not filing written statement has failed to refute and negate the facts narrated in the plaint as A well as pointed out at the time of hearing/arguments. The documents produced by the plaintiff and the facts narrated in the memo. Of plaint have gone unrebutted and unchallenged, therefore, the plaintiffs has successfully proved his case. Further, the contentions raised in the memo of plaint, and affidavit in evidence are in support to each other, hence plaintiff is entitled for the relief claimed by him the present suit.
9. In view of the above facts and circumstances, the suit of the plaintiff is decreed in terms of prayer clauses-(a), (d) and (e). However, so far the claim of damages and mesne profit is concerned, the plaintiff has failed to produce any substantial material on record for awarding the same. Therefore, the claim of damages and mesne profit is declined. Office is directed to prepare the decree in the above terms.