1. ' The case of the plaintiff, as disclosed in the plaint, is that he is the owner of shop No, 123-C, situated in Commercial Area Market 'B', Defence Housing Authority, Karachi. The said shop was let out by him to defendant No,1 under agreement dated 30-6-1971. Initially the rate of rent was Rs,150 per month which was increased to Rs,300 per month. In April, 1978, the plaintiff went to U.S.A. And came back in August, 1979. During his absence from Karachi, one A.K. Khan used to receive rent on his behalf. Defendant No,1 taking advantages of the plaintiff's absence from Pakistan, delivered the possession of the shop to S. Mujtaba Hussain Naqvi, defendant No,3, without his permission.
2. Defendant No,3 offered rent to the plaintiff's aforesaid friend which was refused as the shop was sublet unauthorisedly. On his return to Paldstan, the plaintiff called upon defendant No,3 to vacate the shop. It was, however, found that defendant No,3 somehow getting bank account number of the plaintiff, started depositing rent in that account without his knowledge and approval or that of his Rent Collector A.K. Khan. It is the case of the plaintiff that he had received rent from defendant No,1 up to December, 1977 and defendant No,3 had deposited rent in his bank account up to September, 1979. Defendant No,3 then filed Suit No,3105 of 1981 in the Court of XXXIst Civil Judge at Karachi for declaration and injunction against the plaintiff. The above suit was dismissed in default on 30-11-1981. The plaintiff then filed ejectment case against defendants Nos.1 and 3 before the Cantonment Rent Controller at Karachi, which was registered as Rent Case No,8 of 1982. The notice of the said case was served on defendant No,3. Some advocate filed Vakalatnama on behalf of the said defendant but thereafter he disappeared and did not contest the case and the ejectment application was allowed by order dated 17-7-1982 and consequently Execution Application No,20 of 1982 was filed in the Court of XVIIth Senior Civil Judge at Karachi. Defendant No,2 put his appearance in execution proceedings through defendant No,4 and filed an application under Order XXI, Rule 99, C.P.C., claiming that the firm Anjum Bros. Was the tenant of the shop. During pendency of the above execution application, defendant No,2 also filed Suit No,4907 of 1982 for declaration and injunction in the Court of XXVIIIth Civil Judge at Karachi. The plaintiff contested the said suit which was ultimately dismissed as withdrawn in December, 1982. The application filed by defendant No,2 under Order XXI, Rule 99, C.P.C. Was also dismissed by order dated 23-11-1983 on the ground that Anjum Bros. Was not party in Rent Case No,8 of 1982 and, therefore, execution could not be proceeded with against the said party. Being aggrieved against order dated 23-11-1983, the plaintiff filed an appeal which was allowed on 19-3-1985. Thereafter writ of possession was issued but before it could be executed, defendant No,2 filed revision application before this Court wherein order for maintenance of status quo was ordered and subsequently defendant No,2 was directed to furnish security by order dated 19-5-1985. Defendant No,2 failed to furnish security and ultimately the revision application was dismissed on 11-8-1985. The writ of possession was executed and the possession was delivered to the plaintiff on 3-9-1985. On taking over the possession, it was found that extensive damages were caused to the premises and its fixtures, fittings, doors, etc. And various amenities bills were left unpaid.
3. ' It is alleged that defendants Nos.2, 3 and 4 had occupied the premises unauthorisedly in collusion with defendant No,1 and all the defendants are jointly and severally liable to pay to the plaintiff, the use and occupation charges. The suit has been filed for recovery of Rs,1,24,438.20 on account of mesne profit, unpaid electricity bills, water and conservancy charges, cost of repair of fixtures, fittings, shutter, cost of electric fancy fittings, cost of repair of flooring and other damages and litigation expenses.
4. ' Defendants Nos.1 and 2 filed their joint written statement in which it was admitted that the said shop was taken on rent by defendant No,1 in 1971 at monthly rent of Rs,150 and he remained tenant thereof till August, 1977 and it was then rented out to some one else by the plaintiff. It is also admitted that the rent was often received by A.K. Khan. Denying the allegation that he had given the shop to defendant No,3, it is pleaded that the shop was rented out to the latter either by the plaintiff or his representative and the plaintiff was receiving the rent from the said defendant. It is also pleaded simultaneously that the plaintiff and his representative received rent from Anjum Bros., and then from defendant No,3 and the rent was deposited in the plaintiff's bank account with his consent. The fact that he had left the shop on 1-8-1979, according to the said defendants, is established in the judgment of Civil Appeal No,2 of 1984. The rest of the allegations have been denied for want of knowledge. It is pleaded that defendant No, 1 had paid all the electricity charges during his tenure as tenant. About water charges, it is stated that there was no water connection in the shop. They have denied their liability to pay the claim raised in the plaint. It is further pleaded that the claim is barred by law of limitation.
5. ' On 22-5-1988, the suit was ordered to proceed ex D against defendant No,4. But in so far as defendant No,3 is concerned, no such order was passed. However, the said defendant has not come forward to defend the suit.
6. ' At the time of hearing of the arguments, learned advocate for the plaintiff stated that the suit is not being pressed against defendants Nos.1 and 2.
7. ' On the pleadings of the parties issues were framed. Since the suit is not pressed against defendants Nos.1 and 2, the issues are re-cast as under:-- "(1) Whether defendant No,3 was unauthorised occupant of the shop in question, if so, to what effect?
(2) Whether the plaintiff is entitled to mesne profits against defendants Nos.3 and 4 and if so, at what rate?
(3) Whether electricity and telephone were disconnected due to nonpayment, if so, what is the effect?
(4) Whether the plaintiff is entitled to the claims made in the plaint in respect of water and conservancy charges, cost of repair of fixtures, fittings, shutters, cost of ceiling fan, cost of electric fancy fittings, cost of repair of flooring, plaster and other damages, allegedly caused to the premises and litigation expenses?
(5) What should the decree be?"
8. My fading's on the above issues are as under:- ' ISSUE NO.1: ' The plaintiff in his evidence has specifically deposed that when he returned from U.S.A., he found defendant No,3 and Abdul Hameed in possession of the shop. As the original tenant had sublet the premises to defendant No,3 and Abdul Hameed, he filed Rent Case against them and defendant No,3. The eviction application was granted by the Court and possession was delivered to him. The order dated 29-11-1993, passed in Execution No, 20 of 1992, which has been produced as Exh.5/3, shows that the eviction was granted on the ground of subletting. In the above order though the execution application was dismissed, in appeal the order was reversed. The above evidence establishes that defendant No,3 was unauthorised sub-tenant. The issue is accordingly answered in affirmative.
9. ' ISSUE NO.2: As defendant No,3 was an unauthorised occupant, the plaintiff is entitled to recover mesne profits.
10. The plaintiff has claimed huge amount on account of occupation charges/mesne profits from 1- 10-1979. However, the plaintiff has not deposed to the quantum of the mesne profits to which he is entitled. In absence of such evidence recourse to be had to the quantum of rent that was being paid by the previous tenant. The evidence discloses that the plaintiff was receiving rent at the rate of Rs,300 per month. The plaintiff is, therefore, allowed mesne profits at the rate of Rs,10 per day for the period defendant No,3 remained in possession, falling within three years preceding the date of institution of the suit. The plaintiff has not disclosed the date of taking over possession from defendant No,3. However, he has claimed mesne prolits from 1-10-1979 to 3-9-1985. It leads to the inference that the possession was taken over by the plaintiff on 3-9-1985. The present suit was filed on 22-9-1985. The plaintiff is, therefore, entitled to mesne profits from 22-9-1982 to 3-9-1985. He is, therefore, entitled to mesne profits for 1,075 days, for which amount works out at the rate of Rs,10 per day to be Rs,10,750. The plaintiff is, therefore, entitled to recover the said amount as mesne profits from defendant No,3.
11. ' ISSUE NO.3: The plaintiff in his evidence has produced letter of KESC dated 16-3-1985 as Exh.5/6, wherein the KESC had demanded a sum of Rs,16,938.20, being the amount due and payable on account of electricity charges. It is the case of the plaintiff that the electricity was disconnected because of nonpayment of the arrears. The above evidence is not unrebutted. It is, therefore, held that the plaintiff is entitled to the aforesaid amount of Rs,16,938.20. He has also produced three telephone bills as Exhs.5/7, 5/8 and 5/9. These bills pertain to April, 1983, April, 1984 and August, 1985. The last bill is in the sum of Rs,8,588, outstanding against the telephone installed in the premises. The plaintiff has deposed that the telephone was in the name of defendant No,3 and was disconnected because of non-payment of arrears. The above amount is not claimed in the suit. Therefore, decree cannot be granted for the said amount. The amount decreed hereinabove is also recoverable from defendant No,3 alone. The issue is answered in affirmative and consequently defendant No,3 is liable to pay the said amount to the plaintiff, there being no evidence to show that defendant No,4 has ever remained in possession of the shop.
12. ' ISSUE NO.4: The plaintiff in his evidence has not deposed about the payment made by him on account of water and conservancy charges. It was pleased by the defendants that there was no water connection in the premises. The plaintiff is, therefore, not entitled to thg amount claimed on account of water and conservancy charges. The plaintiff in his evidence has also not deposed with regard to the cost incurred by him on repairs of fixtures, fittings, shutters, ceiling fan, electricity fittings or flooring, plaster and so-called other damages or the litigation expenses. The said claim of the plaintiff, therefore, having not been established, cannot be granted. It is, therefore, held that the plaintiff is not entitled to the said claims. The issue is, therefore, answered in negative.
13. ' ISSUE NO.5: ' In view of the above, the plaintiff is granted decree in the sum of Rs,10,750 on account of mesne profits and Rs,16,938.20, being outstanding bill of electricity charges. The suit is accordingly decreed in the sum of Rs,27,688.20 with proportionate costs.