1. ' In the context of the above application seeking an interim injunction I have heard the learned counsel as to the maintainability of this suit upon the averments in the plaintiff itself. Having heard them the plaint was rejected through a short order, reasons wherefor are recorded hereunder.
2. It is, at the outset, to be noted that the jurisdiction to reject a plaint is not conditional upon the making of an application and power may be exercised at any stage even SUO MOTU. In similar circumstances, in the case of Salahuddin v. Zaheeruddin, PLD 1988 SC 221, where, at the stage of consideration of an application seeking grant of interim relief, the plaint was rejected by the trial Court, the order was upheld up to the level of the Supreme Court.
3. ' On facts, the defendants Nes. 1 and 2 are said to be trustees of a trust known as Dewan Matharam Dharmada Trust, such trust owning a plot in Civil Lines Area Karachi, admeasuring 6,757 Sq. Yds. Or thereabout and having bungalows outhouses, stables and other structures thereon. Plaintiff maintains that be was toast of the trust in respect of a double story bungalow at a monthly rent of Rs,248. The trust filed an application for eviction of the plaintiff under the provisions of the then Sindh Urban Rent Restriction Ordinance, VI of 1959, inter alia, on the ground that it required the premises far reconstruction of a new building at the same site. The rent case was numbered as 3,464 of 1967. On 25-8-1973 the plaintiff agreed to hand over possession of the rented premises and the trust undertook, in terms of the relevant law, to, in due come, put the plaintiff in possession of corresponding suitable area in the projected newly-reconstructed building. The rent case was disposed of accordingly and the plaintiff, in actual fact, handed over possession of the premises to the trust on 30-8-1973.
4. ' Subsequently, the defendant No,3, which is an incorporated company, its previous name being Associated Services (Pvt.) Limited, purchased the premises on 11-4-1975. The trust as well as the defendant No3, under its previous management and former name, having failed to reconstruct at the relevant location, the plaintiff filed an earlier suit bearing No, 1496 of 1976. The suit was decreed and no appeal having been preferred such decree is stated to have become final. In terms of the said decree the defendants in the referred suit are liable to the plaintiff in the sum of Rs,500 per month till the plaintiff is reinstated in the newly-constructed building. An execution application is said to be pending between the parties. The plaintiff, coining to know that the shareholders of the erstwhile Associated Services (Pvt.) Limited having sold their shares to a set of new shareholders and the name of such company having been correspondingly changed from Associated Services (Pvt.) Limited to that of J & S (Private) Limited, defendant No,3 herein, per legal notice dated 24-9- 1989 called upon the defendant No,3 to inform -him as to the time within which the defendant No,3 was proposing to construct a new building at the disputed premises and consequential delivery of possession to the plaintiff. The defendant No,3 through counsel, on 4-11-1989, informed the plaintiff that the defendant was under no obligation to reconstruct on the said plot and asserted that if the plaintiff had any right, title or interest in respect of the said property the plaintiff may sort out the matter with -the previous owners/directors of the company from whom the shareholdings had been purchased by the present set of shareholders. The foregoing facts have given rise to the present suit, where declaration is sought that the plaintiff is entitled to be put back in equivalent constructed area which he has lawfully and under orders of Court vacated, an injunction restraining the defendants from doing or committing any act, deed or thing which may impair or jeopardise plaintiff's rights and a mandatory injunction directing the defendants to construct or cause to be constructed a building on the said premises and to put the plaintiff in possession thereof to the extent of plaintiffs entitlement. In the alternative compensation in the sum of Rs,63 million is sought.
5. Because the defendant No,3 is said to be currently in the process of reconstructing a building on the disputed plot an ad interim injunction is sought in relation to which I have heard the learned counsel as to the maintainability of the suit.
6. ' It is obvious that the plaintiff had vacated the disputed premises under orders of a learned Controller, acting under Section 13 of the erstwhile Sindh Urban Rent Restriction Ordinance, VI of 1959. The rights of the parties thus are in essence governed under the same legal provision which, for the purposes of proceedings under the Ordinance, would continue to apply till the termination of such proceedings in due course of law. Such proceedings, subject to the conditions of repeal, if any, it is now tudomatice, carry their own law with them. It will be useful here to reproduce the relevant provisions of Section 13 aforesaid:- "13 Eviction of tenant,--(1)
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that- the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated; ' the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: ' Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate: (5). Where a landlord has obtained possession of a building in pursuance of an order under clause
(vi) of subsection (2) of this section and does not have the building demolished within a period of four months from the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
7. (5-A) Where a landlord has been convicted under the provisions of subsection (5), the tenant, who has been evicted from the building or rented land in respect of which the landlord is convicted, may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of a. Building which has been demolished, the Controller shall make an .
8. (5-B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old building) and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality.
(6) .....................................
(7) .....................................
(8) .....................................
9. It will be observed that definite time periods are postulated for reconstruction of a premises got vacated in terms of Section 13 (2) (vi) of the Ordinance. Unless compliance is made, except where time is extended for good reason by the Controller, a defaulting landlord is liable to be prosecuted and, in the -event the premises is not demolished, the tenant is entitled to be reinducted in the premises from which he has been evicted under the orders of the Controller. Where reconstruction is carried out in terms of the order the tenant has an option to seek appropriate accommodation in the reconstructed building. In other words, possible eventualities and contingencies are duly taken care of within the framework of section 13 itself. In case of non-compliance and due grievance emanating from such non-compliance specific remedies of an exclusive nature are envisioned in Section 13 itself. More or less to similar effect are the postulates in the Sindh Rented Premises Ordinance, 1979, which repeals and replaces the 1959 Ordinance. The Ordinance of 1959 also postulates finality of orders passed by a Controller, the Appellate Authority or the High Court within the terms of the Ordinance. Section 15 (5), as it then stood, is relevant in that behalf and is reproduced below:- "(5) No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."
10. Neither the Ordinance of 1959 nor orders passed thereunder are relegated to the status of a dead letter under the successor Sindh Rented Premises Ordinance of 1979. Indeed while Section 27 (1) of the 1979 Ordinance repeals the Ordinance of 1959 it specifically through Section 27 (4) provides that "all orders" made in pursuance of its forerunner Ordinance shall be deemed to have "effect" as orders "under this Ordinance and be executed in accordance with the provisions of Section 22."
11. Sections 13 and 21-22 in the new dispensation contemplate exclusiveness of proceedings and finality of orders. Sections 15 (2) (vi), (3) & (4) and 15-A in the Ordinance of 1979 which are reproduced below stipulate the mode and manner is which an order of eviction, on grounds of reconstruction, shall be passed and given effect to:-- "15. Application to Controller: -(1) Where a landlord seeks to evict the tenant otherwise than in accordance with S. 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that-- (i)
(ii) ....................................
(iii) ....................................
12. (iv)
(v) ....................................
(vi) The premises is required by the landlord for reconstruction or erection of the new building at the site and landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction; (vii)
(3) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises, and in case the lanldord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for the purpose he may apply to Controller for an order in that behalf.
(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an in respect of the area applied for or such smaller area as considering the location and type of the new building and the needs of the tenant, he deems just and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality: "15-A. Where the landlord who has obtained possession of a building under S. 14 or premises under clause (vii) of S. 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession--
(I) he shall be punishable with fine which shall not exceed one year's rent of the building or the premises, as the case may be, payable immediately before the possession was so obtained,
(ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an ."
13. Upon the foregoing, it is manifest that under the fiction of law an order under the 1959 Ordinance is to have "effect" as an order under the Successor Ordinance of 1979 and is accordingly to be implemented as such. To put the matter more lucidly pre-existing orders under the repealed statute shall have only such incidents as are carried by similar orders under the current Ordinance and to the extent the provisions in such behalf between the two legislations are inconsistent it is the current statute which should prevail. This has to be so as under the specific saving clause the surviving order is to be given "effect" to not as an order under the repealed law but one under the reenacted statute.
14. ' Now, in so far as a civil suit is concerned the jurisdiction to entertain one, inter alia, arises under Section 9 of the Civil Procedure Code which runs thus:- "9. Courts to try all civil suits unless barred.--The Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation.--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
15. There can be little argument that the forum of the Controller contemplated in Ordinance VI of 1959 as also under the 1979 statute is of an exclusive character. These Ordinances either create or continue or recognise certain rights of landlords and tenants and also correspondingly create distinct machinery for their enforcement or vindication. Even where the express bar to a suit does not come into play, -on general principles recognised and sanctioned by section 9 of the Civil Procedure Code, an implied bar may be spelled out. The instant case is precisely one of that nature. As already noted the prayer seeks a declaration that the plaintiff is entitled to and the defendants are liable to put the plaintiff in possession of the area in dispute, an injunction restraining the defendants from doing or causing to be done any act, deed or thing which may curtail, impair, jeopardise or prejudice the rights of the plaintiff to be put in possession of the referred area in the newly-constructed building and a mandatory injunction directing the defendants to construct or cause to be constructed a building at the site of the disputed premises and to put the plaintiff in possession of the consequently reconstructed building. All such prayers obviously tentamount to circumventing the jurisdiction of the Controller both under the repealed and the reenacted special law and such prayers canot be entertained in a civil suit the jurisdiction of Civil Courts being impliedly, if not expressly, barred.
16. Pursuant to Order VII, rule 11, C.P.C. Where a suit is barred under any law etc. And the bar in clearly deduceable from a bare reading of the plaint it is not necessary that an application under such provision is actually made. The Court has jurisdiction, at any stage of the suit, to take recourse to its powers and reject the plaint if such bar clearly and manifestly arises. For this reason, at the interlocutory stage of considering the grant of injunction, I had heard the learned counsel as to maintainability and came to be of the view that the referred prayers could not be raised in the circumstances narrated and the suit was barred in relation to the foregoing prayers.
17. There remains one more prayer in the suit, that for alternative relief of compensation in the sum of Rs,6.5 million or such other larger or smaller amount as the Court deems the plaintiff to be entitled to. Admittedly, an earlier suit had also been filed by the plaintiff and damages therein were granted. This Court is not called upon to decide whether such suit was or was not competent; if that was not competent this suit would be equally incompetent or vice versa. However, the G plaintiff insists that the previous suit was competent; if so, the plaintiff, in line with Order H, rule 2, C.P.C. Would have been required to claim all or any of the relief(s) in that suit. If not and if any of the reliefs, which could be sought in the earlier suit were omitted, without permission of the Court, such cannot be sought in a subsequently instituted suit. It has neither been pleaded nor urged that any such permission was sought or granted. Order II, rule 2 (3), C.P.C. Reads thus:- "2. Suit to include the whole claim.---
(1) .............................................
18. Relinquishment of part of claim--
(2) ................................................
19. Omission to sue for one of several reliefs.---(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
20. Explanation.---For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
21. Accordingly, the present suit in behalf of the prayer as to compensation as well is barred pursuant to the mandate in Order II, rule 2 (3), C.P.C. The plaint for such residuary prayer as well is liable to be rejected.
22. ' Before parting with the case, it appears proper to take note of the contentions of two parties raised before me regarding the liability of the defendant No,3, as such and a purported bar of limitation for redress under the Special Law.
23. ' As to the liability of the defendant No3 it is said that the renamed company is not liable for the predecessor trust or the earlier legal entity which had different shareholders and another name.
24. The objection is not sustainable on either ground. The Dewan Metharam Dharmanda Trust was the original landlord and successful applicant in rent proceedings. After obtaining possession pursuant to section 13 (2) (vi) ibid. It sold out. Associated Services (Pvt.) Ltd., was the purchaser and the successor landlord. It stepped into the shoes of the erstwhile landlord and became liable for the rights and obligations running with the tide. The J & S Enterprises (Pvt.) Limited, defendant No,3 here, is not even the successor. It is the same person, the same legal entity, as the Associated Services (Pvt.) Limited. Mere change of name or of share holders makes no legal difference. A Company is a legal person, as distinct from its shareholders, who may change hands or come and go, the company remaining totally unaffected. Change of name of the company also entails no difference, rights and obligations remaining the same. After all, what is there in a name. Can a debtor upon a mere change of name claim discharge of the debt? Obviously, no. ' Coming to the question of limitation, the plaintiff would not resist rejection of the plaint if relief in another forum would be available. According to Mr. Mazharuddin Siddiqui there is a bar here for this suit and also a bar before the Controller because of the long period of time which has elapsed since the passing of the order of eviction and the plaintiff not seeking redress appropriately before the learned Controller. In the first place, as regards a prayer for the landlord's conviction such has to be of a criminal genus and prosecution for an offence is never barred by time, unless expressly provided by law. In so far as the enforcement of the order in relation to other reliefs entailing reinduction etc. That provisions, inherently, do not appear to admit of limitation in a sweeping manner, even if some bar of limitation, on general principles, may be pleaded and invoked, a question on which I would prefer to say nothing. Thus as to demolition, if there is no demolition as contemplated by law the right to be reinducted in the premises from which eviction has been enforced can evidently be sought within any reasonable time. In the event demolition actually takes place, pursuant to an order of eviction from the premises, right to be reinducted in the reconstructed premises would arise relative to reconstruction and before another tenant is accommodated therein .
25. Resultantly, in either of these eventualities the whole of the facts would have to be examined by a Controller, if duly approached. In exercising his jurisdiction the Controller has to take note of all surrouding circumstances. For instance, as here, the repeal of the Ordinance followed by another promulgation, transfer of ownership during the interregnum, change of name of the successor J landlord as transpired in relation to the defendant No3 and pursuit of other proceedings in other forums, which for want of jurisdiction or other cause could not entertain the same, a development giving rise to a situation covered by Section 14 of the Limitation Act, are all factors which may have to be accorded, some weight, if and when the Controller is approached.
26. ' Subject to the foregoing, through a short order, the plaint in this Suit was rejected, reasons wherefor are recorded hereinabove.
27. Plaint rejected.