1. ' IRFAN SAADAT KHAN, J.---This revision application has been filed against the judgment dated 15- 8-2007 and decree dated 22-8-2007 passed by the learned VIth Additional District Judge, Hyderabad. #TBS PLD #TBE ' Briefly stated the facts of the case are that the applicant and the respondent entered into a rent agreement dated 25th July 2000 mentioning thereby that the applicant is the owner of the Bungalow No,6-A, Block-E, Unit No,11, Hyderabad and the first floor of the said bungalow was allowed-by the applicant to the respondent to open an Educational Institute w.e.f 1-8-2000, with electricity at the rate of Rs,4000 per month and the respondent in this regard had given him the rent for the whole year i,e, from 1-8-2000 to 31-7-2001 amounting to Rs,48,000 through cross cheque. It was also agreed between the parties that the said Institution would work only in the second shift and the applicant would not give the said premises on rent to any other person. Other terms were also agreed between them, which are not disputed. It was also agreed between them that after the completion of one year of the agreement there would be an enhancement of Rs,1000 per month in the rent and so far as the payment of electricity is concerned that would be mutually decided. It was also agreed between the parties that the said premises would be used for education purposes only. Thereafter, the relations between the parties became strained and a legal notice dated 2-2-2011 was sent by the respondent to the present applicant that since the applicant is violating the terms of the agreement and causing hindrances in the smooth running of the educational institution. A reply to the above legal notice dated 19-3-2001 was thereafter sent by the applicant through his the then counsel by refuting all the allegations and with the direction that since the tenant i,e, respondent is not utilizing the space given to him for the purpose it was taken, hence he is violating the terms of the agreement and the respondent was directed to settle the matter within seven days of the receipt of the above notice. The matter then aggravated between the two concerns and thereafter the respondent filed two suits one for recovery of possession and damages bearing S.C. Suit No, 5 of 2001 and S.0 Suit No,101 of 2001 for injunction against the applicant. As a counter blast the applicant also filed a suit for injunction and damages bearing S.C.
2. Suit No,105 of 2001. The relations between the parties thereafter went from bad to worse and the respondent in order to seek relief from the High Court filed a C.P. No,S-367 of 2001 with the prayer that they may not be harassed by the applicant. This petition came up for hearing on 21-9-2001 and the honourable Judge disposed of the petition by specifically mentioning that no wrongful act would be taken by any of the party against each other in this regard.
3. ' That the learned 1st Senior Civil Judge, Hyderabad after hearing both the parties, vide his judgment dated 20-11-2002 dismissed the suit filed by the present applicant.
4. ' That the learned 1st Senior Civil Judge, Hyderabad, in respect of the suit filed by the respondent decided the suit in favour of the present respondent by decreeing it in terms of the prayer clauses vide judgment dated 31-8-2004 and the applicant, who was defendant in that suit, was directed to restore the possession of the respondent in the present civil revision application over the suit property and pay the damages to him within a period of two months hereof at the rate of Rs,1000 per day from 4-1-2002. Being aggrieved with the said judgment an appeal bearing Civil Appeal No,267 of 2004 was filed by the present applicant before the VIth Additional Sessions Judge, Hyderabad, who also vide her judgment dated 15-8-2007 dismissed the appeal by finding the same devoid of any merit. It is against this order that the present civil revision application has been filed.
5. ' Mr. Rashid Raees, Advocate, appearing on behalf of the applicant submitted that the only agreement entered between the parties was that of the stamp paper dated 25th July 2000 and there is no subsequent agreement entered into between the parties, hence after the expiry of the terms of the rent agreement between the parties the respondent was under the legal obligation to peacefully vacate the said premises. He further stated that the dispute between the parties pertains to the subsequent period i,e, starting from 1-8-2000 of which admittedly there is no agreement between the parties. He stated that a perusal of the legal notice dated 2-2-2001 sent by the respondent to the applicant clearly reveals that the tenant i,e, the respondent became aggravated after the expiry of terms of the agreement whereas they have no locus standi to agitate the same after its said expiry. In this regard he has invited my attention to Article 118 of Qanun-e-Shahadat Order, 1984 and stated that the said Article has not been complied with and the two Courts below were not justified in not considering the said Article. He kept on to argue that the Order XX of Civil Procedure Code also has not been complied with which shows that the judgments passed by the two Courts below were in slipshod manner and have been passed without considering the facts of the case. He further submitted that section 37 of the Contract Act also has not been considered by the two Courts below and even section 42 of Specific Relief Act was not considered. The learned counsel in the end submitted that since the two Courts below have not considered the above mentioned provisions of the law hence the judgments passed are defective and may be set aside and the decree issued in this regard may be ordered not to be executed.
6. ' Mr. Atta Hussain Gaddi Pathan learned counsel appearing for the respondent vehemently opposed this revision application and stated that the applicant has approached this Court with unclean hands. He further submitted that the concurrent findings are in his favour and the learned counsel for the applicant has failed to point out any misreading and non-reading of the evidence.
7. He submitted that there are plethora of judgments given by Superior Courts that where there is no misreading or non-reading of the evidence, the revision applications are liable to be dismissed. In support of his contention the learned counsel has relied upon the decision of honourable apex Court in the case of ADMINISTRATOR, THAL DEVELOPMENT through EACO Bhakkar and others v. ALI MUHAMMAD (2012 SCM R 730).
8. ' I have heard both the learned counsel at considerable length and have perused the record and the decision relied upon by the counsel for the respondent.
9. ' It is an undeniable fact that an agreement took place between the parties with the clauses that the applicant would give first floor of his bungalow to the respondent for opening an educational institution for second shift only at the rate of rent Rs,4000 per month inclusive of electricity. The said agreement was to take effect from 1-8-2000 to 31-7-2001 and the entire amount pertaining to that period was given in advance by way of a cross cheque. However, due to some differences a dispute arose between the parties. It is noted that in the suit filed by the respondent against the applicant bearing No, 101 of 2001 it was prayed that permanent injunction may be issued against the applicant, who was defendant in the said suit from illegally dispossessing the respondent, who was plaintiff in the said suit, against which written statement was filed by the applicant in which it was averred that since after expiry of the terms of the rent agreement entered into between the parties whatever relief now prayed is uncalled for on the ground that since the respondent could not be treated as tenant hence the applicant has full authority under the law to displace and dispossess him from the said premises. In the rival suit filed by the applicant it was claimed that since the said premises taken on rent by the defendant was not used strictly for educational purposes hence he is liable to pay him damages in the sum of Rs,45,000 or as determined by the Court. This suit was opposed by the defendant by stating that since this suit has been filed with mala fide intention and the plaintiff/present applicant has approached the Court with unclean hands, the same is liable to be dismissed. It is noted that since two simultaneous suits were filed by the defendant, he filed an application for withdrawal of Suit No,5 of 2001 which application was allowed on the same date by 1st Senior Civil Judge, Hyderabad. It is also an admitted fact that the learned Judge while deciding the Suit No, 105 of 2001 after a detailed judgment came to the conclusion that the suit filed by the present applicant against the respondent/defendant is not maintainable and thereafter vide his judgment dated 20-11-2002 dismissed the same. It is also noted that the learned Judge while dismissing the suit has considered the averments made in the said plaint by the applicant, the written statement filed in this regard by the respondent and after obtaining the evidences and other material evidences, documentary evidences and other material came to the conclusion that the applicant has failed to prove with any documentary evidence and cogent material that either he had suffered a loss of Rs,47,000 and that such claim was in any manner allowable. The learned Judge through an exhaustive judgment has specifically noted that no material or documentary evidence has been produced by the applicant to show that he had suffered any loss and is entitled for damages. It is also noted that the learned 1st Senior Civil Judge, Hyderabad in the suit filed by respondent through an elaborate and erudite judgment dated 31-8- 2004 came to the conclusion that the respondent is entitled to the relief prayed for in the said suit.
10. It is also noted that the learned Judge examined the applicant and obtained necessary documents from him. The learned Judge examined the respondent also, who also produced a number of documents. In the said judgment the learned Judge after examining both the parties at length, who produced ample documents and adduced evidences, came to the conclusion that the respondent had successfully established his case. The learned Judge has dealt with the matter in detail that the applicant had blocked the entrance of educational institution of respondent and had refrained him by force from entering the said premises. It is also noted that the applicant had not denied this fact rather had admitted that since the tenancy period was over he was legally justified to take over the possession from the respondent. Learned Judge has also categorically observed that during the cross-examination the applicant has admitted that in the said agreement it is nowhere mentioned as to what kind of classes would be conducted by the respondent. The learned Judge also observed that the respondent had taken the said premises for running an educational institution and is running the same for the said purpose only. It is also observed that the applicant had dispossessed the respondent from the said premises on 4-1-2002.
11. The learned Judge, after hearing the matter at length, came to the conclusion that the respondent was able to make out a case for restoration of possession as, according to him, the evidences placed by the respondent were straightforward, positive and comprehensive, which the other side was not able to shatter. The learned Judge also came to the conclusion that though the rent agreement provides for extension of term but the applicant had dispossessed the respondent without due course of law. The learned Judge has further observed that for ejectment a prescribed procedure has been laid down in the law which had not been followed by the applicant who was defendant in the suit and the respondent, who was plaintiff in that suit, was illegally dispossessed in this behalf. The learned Judge also came to the conclusion that the clause pertaining to extension of tenancy has been struck off by cutting the same which proves mala fide on the part of the applicant. The learned Judge has also opined that the defendant, who is applicant in the present revision application, has failed to explain as to why he has placed a self-generated rent agreement in the Court. The learned Judge has also observed that since the respondent had suffered badly due to the ill attitude of the applicant hence he is liable to be compensated in this behalf and he thereafter in order to compensate the respondent with regard to the mental agony through which he has passed awarded cost of. Rs,1000 per day from 4-1-2002 with the directions that if the applicant wants to dispossess the respondent he may adopt the legal course available to him, In the appeal filed by the applicant it is seen that the learned Judge affirmed the judgment after going through the evidences recorded by the learned Trial Judge and giving due consideration to the grounds taken in the appeal and the other material available on record that the relation of landlord and tenant exists between the two parties. The learned Judge in this regard has categorically discussed the relevant provisions of Sindh Rented Premises Ordinance, 1979 as to what does the terms landlord, premises and tenant means in the said law and thereafter came to the conclusion that the said law clearly authorizes the landlord that upon happening of certain contingencies the landlord is entitled for ejectment of his tenant subject to the condition as enshrined in the said Ordinance. The learned Judge categorically observed that such procedure has not been adopted by the applicant. The learned Judge also observed that the possession was taken over by the landlord by applying force and not adhering to the various modes and methods as given in the said Ordinance. It is also noted that the amount of damages awarded by the Trial Court at the rate of Rs,1000 per day from 4-1-2002 was also affirmed.
12. ' From the facts noted above it is clear that so far as the decision of the learned two courts below regarding ejectment and illegal dispossession of the respondent from the said place was found to be violative of law by recording exhaustive judgments. The learned counsel before me also was not able to point out any misreading or non-reading of the evidence. So far as the ejectment and illegal dispossession of the respondent is concerned, learned counsel also could not controvert the fact as to what legal infirmity has been committed by the two courts below in recording this aspect. The learned Counsel was specifically asked to point out any misreading or non-reading of evidence and he was unable to satisfy the Court in this regard hence in my view no case of interference so far as the ejectment and illegal dispossession of the respondent is concerned and the judgments passed by the two Courts below are hereby affirmed with the direction that the possession, of the respondent be restored. The reference of various law also is found to be, misplaced in view of the facts of the case.
13. ' Now coming to the second aspect of the case regarding the award of Rs,1000 per day as mental torture. Though the Trial Court has allowed the said amount but it is noted that proper home work has not been done in this regard. The Trial Court has failed to mention as to how it has jumped to the conclusion that the amount of compensation awarded at Rs,1000 per day would be sufficient to compensate the respondent for the mental anguish and agony suffered by him as prayed. It is a settled proposition of law that no yardstick or definite principle for assessing the damages could be determined and only a tentative assessment is made with regard to assess fair compensation, which though is the sole discretion of a Court however, a number of factors are firstly to be seen before granting the said compensation and in this regard adequate care should be taken that while determining the quantum of amount the Courts should be vigilant to see that the claim is not fanciful or remote keeping in view the paying capacity of the person upon whom the said damages have been awarded. It is also to be seen that the amount so awarded must be reasonable and should not appear punitive or exemplary and is to be determined in all fairness looking to the facts of the case. In my view the award of compensation at Rs,1000 per day is harsh and the learned Judge has granted the said amount as prayed by the respondent without making a fair assessm ent in this regard. No doubt it is the discretion of the Court to allow the compensation looking to the facts of the case but in my view such assessment has to be fair, reasonable and dependent upon the facts of the case. The said compensation should be reasonable and should appear to be genuine in a judicial parlance. There is no cavil to the proposition that a Court is entitled to allow damages looking to the peculiar facts and circumstances of the case but special care should be taken while determining the quantum of award and the Court should be vigilant to see that the claim of the award does not appear to be either fanciful or remote. I was able to lay my hands on a decision given by this Court in the case of MUHAMMAD RAFIQUE MEMON v. HAKIM ALI (2010 CLC 1957) wherein my learned brother Syed Hasan Azhar Rizvi, J, while decreeing the suit has categorically observed that "the Court should give the aggrieved party a fair and reasonable compensation". In an another judgment in the case of ABDUL WAHAB ABBASI V. GUL MUHAMMAD HAJANO (PLD 2008 Karachi 558), Mr. Nadeem Azhar Siddiqui, J, as he then was, has also observed that "amount so assessed must be compensatory in nature and should not appear punitive IA or exemplary."
14. ' Applying the above principles, I am of the opinion that it would be in fitness of things if the amount of compensation is reduced to Rs,250 per day since it could not be ruled out that the respondent had passed through mental agony and anguish and is entitled for compensation. Hence, so far as this aspect of the decision given by the learned two Courts below is concerned, the same is modified with the above mentioned observation.
15. ' The upshot of the above discussion is; (1) The present Revision Application is dismissed and the orders passed by the two Court below are partly affirmed so far as restoration of possession is concerned and, (2) Insofar as the award of compensation at Rs,1000 per day is concerned, the orders of the two courts below are modified to the extent that the said compensation, in view of the facts and circumstances of the case, is hereby reduced to Rs,250 per day. .