' This is a suit filed by the plaintiffs for recovery of Rs.2,50,752 being the charges for use and occupation of Plot No. 47, West Wharf for the period 1-7-1980 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. Yard per annum for a period of twenty-five years from 7-7- 1954. After the expiry of lease it was to be extended on terms mutually agreed upon between the parties. The plaintiffs demanded rent @ Rs.21.85 per sq. Metre per annum which was not accepted by the defendants. The plaintiffs threatened to take action against the defendants who filed Suit No. 1056 of 1979 against the plaintiffs. With the consent of the parties both the suits have been tried together and the evidence in Suit No. 1056 of 1979 has been read as evidence in this suit also. The plaintiffs' claim the 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 the new lease.
' The defendants have objected to the claim on the ground that claim from 1-7-1980 to 30-6-1981 is barred by Order II, Rule 2, C.P.C. The main contention for this plea is that the plaintiffs had earlier filed Suit No. 339 of 1981 on 10-5-1981 claiming rent from 1-7-1979 to 30-6-1980. As claim upto 30-4- 1981 included in the present suit could have been included in Suit No. 339 of 1981 but the plaintiff has omitted to sue for that claim, therefore, such claim is barred under Order II, Rule 2. The other defences raised are that this Court has no jurisdiction to fix rent or to try the suit. The claim made by the plaintiffs is exorbitant and arbitrary. The following issues were framed:-
(1) Has this Hon'ble Court has jurisdiction to entertain this suit for 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) Did the defendant become a statutory tenant of the plaintiff after 7-7-1979? If so, is the defendant entitled to claim protection under Sind Rented Premises Ordinance, 1979?
(3) Is the claim of the plaintiff for rent from 1-7-1980 to 30-6-1981 barred by the provisions of Order II, Rule 2, C.P.C.?
(4) Is the plaintiff entitled to demand unilaterally enhanced rent of Rs.21.85 per sq. Metre per annum as against earlier rent of Rs.3.50 per sq. Yard per annum as stated in para. 7 of the written statement of defendant?
(5) Whether defendant is not liable to pay interest from the date of suit until payment?
(6) What should the decree be?
' My findings are as follows:- ' Issue No. 1: ' This Court has jurisdiction to try the suit.
' Issue No. 2: ' In the negative.
' Issue No. 3: ' In the negative, ' Issue No. 4: ' Plaintiff is entitled to charge @ Rs.21.85 per sq. Metre per annum.
' Issue No. 5: ' In the negative.
' Issue No. 6: ' Issues Nos. 1 and 2: ' This suit was tried with Suit No. 1056 of 1979 and the evidence recorded in that suit was treated as evidence in this suit as well. All these issues have been raised in the said suit and decided after thorough discussion on points of law and facts involved in the matter. The same arguments were adopted by the learned counsel for the parties in this suit also. In view of the judgment in Suit No. 1056 of 1979 pronounced today, my finding on these issues are Issue No.
1. The Court has jurisdiction to try the suit. Issue No. 2: In the negative.
' Issue No. 3: ' According to the defendants the claim from 1-7-1980 to 30-6-1981 is barred under Order II, Rule 2, C.P.C. Suit No. 339 of 1981 which was filed on 10-5-1981, for recovery of rent from 1-7-1979 to 30-6- 1980. The present suit is for recovery of charges for use and occupation of the land whereas Suit No. 339 of 1981 was for recovery of rent, although in the evidence the plaintiffs had treated the defendants as unauthorised occupants. The cause of action for rent arises during the subsistence of tenancy. The cause of action for charges or use and occupation arises when the occupation becomes wrongful and unauthorised. In this regard reference can be made to para 5 of the plaint and the statement of plaintiffs' witnesses who have stated that after expiry of the lease the defendants are in unauthorised and illegal occupation of the plot. Therefore, both the suits are based on different causes of action. On the basis of the pleading in Suit No. 339 of 1981 the plaintiff could not have claimed charges for the use and occupation from the defendants. Order II, Rule 2 provides that a plaintiff should include the entire claim he is entitled to make in respect of the cause of action unless he has relinquished any part of his claim. If a plaintiff omits to sue for a part of the claim, he is entitled in respect of a cause of action, he will be precluded from suing in a subsequent suit in respect of the claim so omitted. In this regard Mr. Zari has referred to PLD 1970 SC 63, 1983 CLC 483 and AIR 1938 Rang.
76. This bar is not attracted where both the suits are on different cause of action. PLD 1963 Kar.
969, PLD 1966 Kar. 126, PLD 1955 Dacca 96, PLD 1953 Lah.
41. As both the suits are on different cause of action part of the claim in suit as alleged by the defendants is not barred. My finding is in the negative.
' Issue No. 4: ' The plaintiff has claimed charges for use and occupation of the land. It is a claim for compensation for wrongful deprivation of the property and is awarded against a person in wrongful possession of property. The measure for assessing such damage would be the rent according to prevailing rate for like lands. Reference can be made to Noor Sultan v. Burma Shell Oil Storage & Distributing Co. Pak. Ltd. PLD 1968 Kar.
408. In the present case the plaintiffs have produced evidence that for similar land in the area the plaintiffs are charging rent @ Rs.21.85 per sq. Meter per annum. In Suit No. 1056 of 1979 the plaintiffs have been held to be entitled to claim @ Rs.21.85 per sq. Meter per annum. My finding is that the plaintiffs are entitled to recover @ Rs.21.85 per sq. Meter per annum as claimed by them.
' Issue No. 5: ' The amount claimed by the plaintiffs has been deposited by the defendants in Court under the orders passed in Suit No. 1056 of 1979. I would, therefore, not grant interest to the plaintiffs, my finding is in the negative.
' Issue No. 6: ' for Rs.2,50,752 with cost.