IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.1344 of 2009
Amin Jan Mohammad
Versus
Innovative Investment Bank Ltd.
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
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Date of Hearing: |
12.11.2013 |
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Plaintiff: |
Through Mr. Shahab Sarki Advocate. |
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Defendant: |
Nemo. |
Muhammad Shafi Siddiqui, J.- Plaintiff has filed this suit for recovery of rental arrears and damages against the defendant.
2. The notices/summons were served on 10.12.2009 and the defendant was given time to file written statement, which the defendant failed. Consequently on 22.3.2010 this Court ordered the suit to proceed exparte against the defendant. Accordingly the plaintiff filed his affidavit in exparte proof along with certain documents. He was examined in Court as PW-1 during which he exhibited Special Power of Attorney as Ex.PW-1/4, lease agreement as Ex. PW-1/5 and legal notice/ correspondence as Exh. PW-1/6 to PW-1/11. Since no one appeared on behalf of the defendant to cross-examine the plaintiff and the plaintiff did not want to lead any other witness, his side was closed and the matter was put up for final disposal.
3. Case of the plaintiff is that he is the owner of Shop No.1, Block-2 measuring 1050 sq. feet i.e. 525 ground + 525 mezzanine floor in the project known as “The Plaza” constructed on Plot No.G-7, near Do-Talwar, Clifton, Karachi, (hereinafter referred as “the premises”). The plaintiff pursuant to a lease agreement dated 27.11.2005 rented out the premises to the defendant at a monthly rent of Rs.200,000/- per month with periodical increase of 8% per annum. It is the case of the plaintiff that in terms of covenant of the lease agreement it was agreed that the tenant shall not make any alteration, addition, modification to the structure of the premises and that either party would serve 12 months written notice in case the premises is being vacated and/or is required to be vacated. It is the case of the plaintiff that in breach of the above terms and other covenants of the agreement, the defendant brought structural changes without permission of the landlord/plaintiff and has vacated the premises without 12 months’ notice to the landlord/plaintiff of which he remained in possession till May 2008 but paid the rent till January 2008 thus committed default in payment of monthly rent from February 2008 to May 2008. Plaintiff claimed unpaid rent and the rent for the period of one year as no written notice was given to the landlord/plaintiff by the tenant/defendant for vacating the premises. The plaintiff also claims enhancement in rent from December 2008 to April 2009 at the rate of Rs.251,942/- and claim cost for restoring the premises back to its original position and maintenance charges paid to the Association.
4. In order to prove his claim, one Yousuf Jan Muhammad, attorney of the plaintiff, has filed his affidavit in exparte proof. He has exhibited the original lease agreement dated 27.11.2005, legal notice dated 06.11.2006 and 05.12.2006 along with courier receipts and letter/notice of 27.10.2008. The attorney of the plaintiff has also exhibited letter issued to the plaintiff dated 09.05.2008 and others wherein it is admitted that due to some unavoidable circumstances the premises could not be utilized, as planned, and they have suffered huge financial losses and were constrained to shut down the business without even starting the same. The defendant also suggested resolution of the dispute amicably without going into the litigation. Lastly a letter issued by the defendant through his advocate is also exhibited as Ex. P-1/6 dated 05.12.2006 which also confirms that on account of force majeure the defendant was constrained to shut down the business, however the letter dated 09.05.2008 issued by defendant suggest that premises was vacated somewhere in May, 2008 without notice of vacation.
5. I have heard learned counsel for the plaintiff and perused the material available on record. The defendant has failed to put appearance, though served as stated above, and the assertions of the plaintiff have gone unrebutted and unchallenged. It appears that the plaintiff rented out the premises to the defendant vide lease agreement dated 27.11.2005 at a monthly rent of Rs.200,000/-. It is also one of the covenants of the agreement that the tenant/defendant shall not make any addition, alteration or modification to the structure of the premises and that either party is entitled for 12 months’ notice either for vacating the premises or if it is required, as the case may be. Learned counsel has also claimed enhancement in rent at the rate of 8% per annum, as agreed in the agreement.
6. As regards the arrears of rent it is clear through the documentary evidence, particularly the lease agreement and the letter of the defendant, that the defendant was the tenant of the plaintiff in respect of the premises. The claim of the plaintiff that the defendant vacated the premises in the month of May 2008 and failed to pay the rent w.e.f. February, 2008 has gone unrebutted and unchallenged and also admitted in terms of defendant’s letter dated 09.05.2008 hence the plaintiff is entitled to claim the arrears of rent up to 12.05.2008. So also there is no cavil that the plaintiff is entitled for recovery of rental arrears along with enhancement at the rate of 8%, as agreed in the lease agreement, however the plaintiff could not establish through confidence inspiring evidence that the defendant has brought material structural changes in the premises. The correspondence suggests that certain modifications were made by the defendant to suit their business transactions/dealings however same cannot be deemed structural changes as the tenants of commercial premises would certainly make it suitable for conducting of his daily business. I am, therefore, of the opinion that the changes so made are not proved to be structural as the averments of the plaintiff’s witnesses are neither corroborated nor supported by any cogent material except that of verbal assertion. So also the plaintiff has failed to bring on record and/or exhibited any receipts to show payment as maintenance charges to the Association. It is a settled practice that whenever maintenance is paid receipts are being issued towards the same and in the absence of such receipts it cannot be established that the plaintiff has paid the maintenance charges and that too at the rate claimed. Since I have observed that the plaintiff has failed to prove any structural changes in the premises, the question of damages or cost towards restoring the premises back to its original position does not arise and the plaintiff is not entitled to claim such relief. As regards the claim of notice amount i.e. 12 months’ rent is concerned, the defendant in his letter dated 09.05.2008 (Ex.PS-1/9) asserted that since the premises was vacated by the defendant on special circumstances, therefore it was not binding on them to give notice of 12 months. This is an admission on the part of the defendant that they have not given 12 months’ notice. As regards the claim of the defendant as to the special circumstances, such thing is nowhere in the agreement which may absolve the defendant to perform his part of the agreement.
Upshot of the above discussion is that the suit of the plaintiff is decreed in terms of prayer clause ‘A’ however only to the extent of Para 6(i) and (ii) which deals with the arrears of rent and the claim of rent in default of issuance of 12 month’s notice along with its enhancement at the rate of 8% with interest in terms of prescribed rate of State Bank of Pakistan; rest of the claim in Para 6 of the plaint and/or prayer are not established by the plaintiff hence he is not entitled for the same. Let the decree be prepared accordingly.
Dated: 20.11.2013 Judge