PARVEZ AHMAD, J.---The appellants/defendants have assailed the legality and validity of the judgment and decree passed by the trial Court dated 27-6-1996 against them in a suit for recovery of Rs.18,47,500 filed by the present respondent/plaintiff.
2. The facts in brief are that the respondent/plaintiff filed a suit for recovery of an amount of Rs.18,47,500 against the appellants/defendants with the averments that the respondent/plaintiff is landlord of the property detailed in para. 1 of the plaint which was leased out to the appellants/defendants at a monthly rent of Rs.30,000 per month vide lease agreement dated 15-7- 1987 although the actual tenancy has commenced with effect from 2-7-1987. The tenancy was for a period of five years. The appellants/defendants were put into possession of the property alongwith its fitting and fixtures i.e. Air-conditioners, electric fans, and other electric equipments. It was also agreed that the appellants/documents can terminate the lease by giving two months prior notice, otherwise the possession of the property will be delivered to the respondent/plaintiff at the expiry of the lease. The appellants/defendants for some time continued to make payment of monthly rent then they committed default in the payment of monthly rent w.e.f. March, 1989 and also damaged the property and impaired its value utility materially upon which the respondent/plaintiff filed an ejectment petition against thetas under section 13 of the W P. Urban Restriction Ordinance 1959 in the Court of Rent Controller, Lahore which was contested by the appellants/ defendants disputing their liability to pay the arrears of rent rather they took up the plea of having vacated the premises. The Rent Controller on 20-6-1990 passed an order for deposit of arrears of rent under section 13(6) of the W. P. Urban Rent Restriction Ordinance which was challenged by the appellants in Writ Petition No.4733 of 1990 which, however, was dismissed. The appellants/defendants continued to prolong the delivery of possession to the respondent/plaintiff and contested the ejectment petition and also the application under section 13(6) of the W.P.
Urban Rent Restriction Ordinance and finally an order of ejectment was passed. The appellants/defendants contested the execution petition also. The respondent/plaintiff ultimately was able to obtain possession of the property from the appellants/defendants through process of the Court i.e. Through bailiff on 23-5-1992. The appellants/ defendants had failed to make the payment of monthly rent w.e.f. 2-3-1989 to 23-5-1992 which amount was claimed in the civil suit in para.5 of the plaint (i) arrears of rent as Rs.8,10,000; (ii) rental for unexpired term of lease from 24- 5-1992 to 1-7-1992 as Rs.37,500; (i.e) damages Rs.10,00,000 and the total amount claimed was Rs.18,47,500. The appellants/defendants contested the suit with the averments that the respondent/ plaintiff was directed to have the possession of the property through their letter dated 31-8-1988 and the premises were vacated on 1-3-1989. On the pleadings of the parties the following issues were framed:-- (1)Whether the plaintiff is entitled to recover the arrears of rent at the rate of Rs. 30,000 per month w.e.f. 21-2-1990 to 1-7-1992 amounting to Rs.18,47,500 from the defendants? OPP.
(2)Whether the plaintiff's property was damaged and certain fixtures were removed by the defendants? OPP.
(3)On proving Issue No.2 in the affirmative, whether the plaintiff is entitled to the damages amounting to Rs.10,000,000? OPP.
(4)Whether the plaintiff has no cause of action to bring this suit? OPD.
(5)Whether the plaintiff has come to this Court with unclean hands? If so, its effect? OPD.
(6)Whether the plaint is liable to be rejected under Order VII, rule 11, C.P.C.? OPD.
(7)Whether the suit is false, frivolous and vexatious, if so, to what extent are the defendants entitled to receive compensation from the plaintiff under section 35-A, C.P.C.? OPD.
(8)Relief.
3. The trial Court recorded the evidence of the plaintiff comprising of the statements of Shad Ali, P.W.1, Malik Naseer Ahmad, P.W.2, Muhammad Saleem Bhatti, respondent as P.W.3. The appellants in rebuttal produced DWA, Sarfraz Hussain, S.S.P., D.W.2, Kh. Muhammad Sana Ullah, Superintendent, Special Branch, D.W.3, Habib Ullah, H.C., Abdul Hayee Khan, Superintendent, S. S: P., D.W.5, Abdul Aalah, Superintendent, S.S.P. And that of P.W.6 Abdur Razzaq, D.S.P. The trial Court after recording evidence of the parties and giving them opportunity of hearing decreed the suit of the respondent/plaintiff to the tune of Rs.8,47,500 in their favour and dismissed their suit to the extent of claim of recovery or Rs.10,00,000. The appellants/defendants have challenged this judgment and decree through this R.F.A.
4. We have heard learned counsel for both the parties and perused the material available on record.
5. Learned counsel for the appellants have submitted that the property in question had been vacated on 1-3-1989 for which a Rapt No.68 was registered on 13-3-1989. It is also submitted that the respondent was served with two letters Exh.D.1 and D.2 for intimation for vacation of the property by the appellants.
6. Learned counsel for the respondent has submitted that no such intimation was ever supplied to them. The possession of the property was not delivered to them on 1-3-1989. It was the appellants who in spite of having raised the plea of vacation of premises in the written statement furnished to the Court of Rent Controller, Lahore, in response to ejectment petition filed against them had not delivered the possession of the property to them rather had contested each and every stage of the ejectment petition including the order for deposit of rent and also contested the execution petition when presented before the Court and ultimately the possession was taken by them through bailiff on 23-5-1992.
7. The facts of the litigation in between the parties have been recorded above which reveal that the respondent is owner/landlord of the property in question. The appellants took this property on lease through lease agreement dated 15-7-1987. The period of lease agreed into in between the parties was period of five years commencing from this date and ending on 15-7-1992. The rate of rent to be paid by the appellants to the respondent was agreed at Rs.30,000 per month. In view of the above facts the ownership, tenancy and rate of rent having been admitted, it was the appellants who were to make payment of rent regularly on the due dates of each and every month to the respondent. The appellants committed default in the payment of rent from 2-3-1989 for which the respondent was forced to file an ejectment petition in the Court of Rent Controller, Lahore. The appellants in this ejectment petition filed their written statement and contested it. The appellants although raised a plea of having vacated the premises, the appellants contested the order of deposit of rent passed by the Rent Controller under section 13(6) of the W.P. Urban Rent Restriction Ordinance and even contested this order by way of filing a writ petition before this Court which was dismissed. Even when the ejectment petition was allowed in favour of the respondent an application for execution of the order of ejectment was presented, the appellants contested it and the respondent ultimately got the possession of premises on 23-5-1592. Had the appellants vacated the premises as abovesaid by them on 1-3-1989. They would have made a statement before the Court of Rent Controller for acceptance of the ejectment petition and handing over possession of the property by them to the respondent. Apart from this situation had they vacated the premises they would have made all the efforts for intimation to the respondent in this regard and bona fidely handed over the possession to the respondent. The pleas of the appellants having issued certain letters Exhs.D.1 and D.2 of recording of Rapt No.68 dated 13-3-1989 is not proved on record, to have been brought to the notice of the respondent or that service of these letters was accepted by the respondent. There is nothing on record that even these letters Exhs.D.1 and D.2 after having been signed by the concerned officers were dispatched in the course of business to the respondent and were served upon him. The examination of the record in this regard proves that the plea of the appellants is not based on facts and it were they who committed default in the payment of monthly rent, did not deliver the possession of the property to the respondent till the respondent was able to have the possession of the property through `process of Court on 23-5- 1992. The record, however, reveals that the amount of rent for the period from March, 1989 to 20-2- 1990 having become time-barred at the time of filing of the present suit. The respondent only claimed rent outstanding for the period from 21-2-1990 to 23-5-1992 at the rate of Rs.30,000 per month which comes to Rs.8,10,000. After having obtained the possession of the property by the respondent and process of termination of lease having been initiated at the instance of the respondent, the respondent was and is not entitled to the rent for unexpired term of lease amounting to Rs.37,500.
8. In view of the above discussion the respondent is held entitled to the recovery or Rs.8,10,000 only.
The respondent is not entitled to the recovery of Rs.37,500. As such we partly allow this R.F.A. And modify the judgment and decree of the trial Court that the suit of the respondent/plaintiff is decreed to the extent of recovery of an amount of Rs.8,10,000 and the suit of the respondent/plaintiff is dismissed to the extent of Rs.37,500. The parties are left to bear their own costs.