J.N Wazir, C.J:— This is defendant's first appeal and arises out of a suit instituted by plaintiff company through Mn Raghunath Dulloo for the recovery of Rs. 59,133 on account of rent and compensation for use and occupation of the plaintiff's property situate in Chattah near Jammu Cantonment for the period 1-6-1949 to 1-6-1952.

2. The plaintiff is a company styled as Shree Karan Singh Woollen Mills Limited which has its registered office at Lal Mandi, Srinagar. It had constructed buildings in Chattah near Jammu Cantonment in the years 1945 and 1946 in order to set up a woollen mill there. These buildings were constructed at a cost of Rs. 6 lakhs according to the accounts maintained by the plaintiff company. The plaintiff averred that these buildings were requisitioned by the Government under sub-rule (i) of Rule 59-A of the Jammu and Kashmir Defence Rules for the purpose of storing food-grains and possession thereof was taken over by the said Government defendant. The buildings consisted of a godown scouring shed, boiler house, foundry, smithy shed and power house. It was alleged in the plaint that the defendant had occupied these buildings for the purpose of storing grain from 1st June, 1949 and the plaintiff was demanding rent from the Government but it did not pay anything towards the rent to the plaintiff. It was further alleged that stone ballast costing Rs. 5,133 was stored by the plaintiff for its own use which was utilised by the defendant without paying any price for it. Hence the plaintiff claimed Rs. 54,000 rent at the rate of Rs. 1500 p.m and Rs. 5,133 as the price of the stone ballast.

3. The defendant pleaded, inter alia, that the suit was not properly instituted: the property having been requisitioned under Rule 59-A of the Jammu and Kashmir Defence Rules the suit challenging the) order passed by the defendant fixing compensation at Rs. 300 p.m could not be challenged a civil suit; that the defendant had to spend Rs. 8,334/10/-, on account of certain repairs to the buildings which they were entitled to recover from the plaintiff. Lastly it was pleaded that the amount of rent and compensation claimed by the plaintiff was excessive.

4. On these pleadings the trial Judge framed the following issues:

(1) Has the suit been properly instituted?

(2)(a) Was the property in dispute properly requisitioned by the Government? and

(b) If so, is not the Cabinet Order No. 523-0 of 1953 dated 4-5-1953 fixing compensation for use and occupation at Rs. 300 per mensem binding on the plaintiff?

(3) In case issue No. 2 is proved in favour of the plaintiff, what is the fair rent of the building?

(4) Has the defendant removed and utilised any stone ballast belonging to the plaintiff and, if so, how much and what is its value?

(5)(a) Has the defendant incurred any expenses on repairs of the buildings and, if so, to what extent?

(b) Could the defendant properly incur such expenses and are these to be adjusted against the amount due to the plaintiff?

(6) Relief.

5. After going through the evidence adduced by the parties the trial Judge found that the suit was properly instituted; that the suit for recovery of rent and compensation for use and occupation was maintainable and was not barred by S. 5 cl. (i) of Ordinance No. III of 2003. It was further found that the plaintiff was entitled to recover rent at the rule of Rs. 1,200 p.m from the defendant and that the defendant was not entitled to recover costs of the repairs to the buildings. The plaintiffs' claim for the price of the stone ballast was not allowed as the plaintiff could not establish that the stone ballast was utilised by the defendant. The plaintiff's suit was decreed to the extent of Rs. 32,340 with proportionate costs.

6. The defendant has come up in appeal against the decree of the trial Court. In this appeal three main pleas have been repeated by the Advocate General on behalf of the defendant. The firs? two pleas are in regard to the frame of the suit, i.e, that the suit was not properly instituted as Mr. Raghunath Dulloo was not a duly authorised agent on behalf of the plaintiff company to file the suit, and secondly that the suit challenging the Cabinet Order fixing the rent and compensation is not maintainable. The third is that the rent and compensation allowed by the trial Judge for the use and occupation of the buildings is excessive. The merits) of these pleas have to be considered in the present appeal.

7. The suit was brought by Shree Karan Singhl Woollen Mills Limited and the plaint was signed and verified by Mr. R.N Dulloo. It is contended on behalf of the appellant that Mr. Dulloo was not an authorised agent of the plaintiff company and not entitled to file the suit.

8. This contention is without force. The plaintiff company had appointed Kashmir Cloth General Agency Limited as their managing agents and gave all the powers of management to the said company. The Kashmir Cloth General Agency Limited who were appointed managing agents by the plaintiff company executed an agreement dated 2-9-1946 by which they accepted their appointment as the managing agents of the plaintiff company. The managing agents had in turn appointed Mr. Dulloo who is the chief officer of the plaintiff company as duly authorised agent to conduct all civil suits on their behalf by virtue of the power of attorney executed in his favour. The present suit was filed by Mr. Dulloo on behalf of the plaintiff company and it is argued that there is nothing to show from the power of attorney that the company had authorised Mr. Dulloo to act on behalf of the plaintiff company.

9. There is some fallacy in this argument. The plaintiff company had appointed the Kashmir Cloth General Agency Limited as its managing agents and had given powers to file suits on its behalf. The managing agents could themselves file the suit or appoint some other agent to do so. They had appointed Mr. Dulloo by virtue of the power of attorney executed in his favour to file suits on its behalf or in their capacity as managing agents of the plaintiff company. It was purely a case of sub-agency and the sub-agent was fully competent to file the suit on behalf of the plaintiff company. Moreover, from the evidence of Mr. Dulloo it is fully established that he was the principal Officer of the plaintiff company.

10. Being a principal officer, he was competent to sign and verify the plaint even under the provisions of O. 29, R. 1 of the CPC vide Delhi and London Bank Ltd. v. Oldham, reported in 20 Ind App 139, (PC), an which it was held that Lawson was then as he described himself acting manager of the Bank of Lucknow, and that as such he was a ‘principal officer of the corporation’ entitled to subscribe and verify the plaint within the meaning of Sec. 435 of the Code, and that the suit was properly instituted.

11. As regards the other contention that the Cabinet Order requisitioning the property and fixing the compensation could not be challenged in suit, it has been argued that the buildings were requisitioned under Rule 59-A of the Jammu and Kashmir Defence Rules and compensation was fixed by the Government at Rs. 300 p.m by Cabinet Order No. 453-C of 1952 dated 12-5-1952. It is contended that the order fixing compensation could not be challenged in civil court under Sec. 5 cl. (i) of Ordinance No. III of 2003.

12. In order to appreciate this argument it is necessary to reproduce Rule 59-A cl. (i) of the Defence Rules which is as under:

“If in the opinion of the Government it is necessary or expedient so to do for securing the defence of the State, public safety, the maintenance of public order or for maintaining supplies and services essential to the life of the community, the Government may by order in writing requisition any property movable or immovable, and may make such further orders as appears to be necessary or expedient in connection with the requisition.

13. Provided that no property used for the purpose of religious worship and no such property as is referred to in Rule 57, shall be requisitioned under this rule.

14. The argument on behalf of the appellant is that the words “may make such further orders as appear to be necessary or expedient in connection with the requisitioning” used in the rule are wide, enough to include the order made fixing the compensation in respect of the requisitioned property and the order of the Government fixing compensation at Rs. 300 could not be challenged in civil court.

15. In my opinion Rule 59-A of the Jammu and Kashmir Defence Rules has no application to the present case. Fixing of compensation cannot fall within the ambit of an order which is contemplated by Rule 59-A of the Jammu and Kashmir Defence Rules. The words referred to above which appear in the rule include those acts which are necessary to take possession of the property which is re-auisitioned by the State for instance, it may be in the possession of a third party who does not vacate the premises and he may be removed by force. That party cannot question the act of the State in a civil Court But a suit claiming compensation which arises out of the requisitioning of the immovable property is, in my opinion, not barred by S. 5 of Ordinance No. III of 2003, because right of claiming compensation is absolutely separate from the act of requisitioning the property for which the compensation is claimed. It cannot be considered to form a part of the act of requisitioning. In this view I am fortified by a ruling of the Calcutta High Court, Karnaphuli Jute Mills Ltd.…Plaintiff; v. Union Of India…Defendant., AIR 1956 Cal 71 in which it is held that neither Section 17 Defence of India Act nor the provisions of the Requisition of Land Act prohibit the filing of a suit in respect of compensation due for requisition of a claimant's premises. In Panchanan Das v. Province of Orissa, AIR 1955 Orissa 57 it is laid down as under:

“Where the Government completely fails to discharge the duty imposed upon it Dy R. 75-A (5) in not determining the amount of compensation and not paying any amount to the owner of the property requisitioned, the owner would not be absolutely without his remedies under the ordinary laws of the country. The ordinary remedy is available to the owner and the suit for compensation is maintainable. The suit not being one for damages on account of any wrongful act of Government servant is taken out of tile mischief of Section 17(2) of the Defence of India Act.”

16. Moreover, there is a clear provision in the Jammu and Kashmir Defence Rules for assessing compensation in regard to movable property but there is no such provision in respect of compensation for immovable property that is requisitioned under Rule 59-A. In the absence of any provision for granting compensation in respect of immovable property which is requisitioned by the Government, it cannot be said that the Jammu and Kashmir Defence Rules bar the maintainability of the suit for compensation.

17. It is well settled that jurisdiction of civil court, is not taken away unless there is a statutory provision excluding such jurisdiction by express terms or by necessary intendment: vide Secy. of State v. Mask and Co., AIR 1940 P.C 105 in which it is laid down that the exclusion of the jurisdiction of Civil Courts is not to be readily inferred but such exclusion must either be explicitly express or clearly implied.

18. There being no statutory provision barring the jurisdiction of the Civil Court in respect of compensation of immovable property I am clearly of the view that Rule 59(R. 59-A?) of the Jammu and Kashmir Defence Rules is not a bar to the maintainability of the present suit and cannot be pleaded in answer to the plaintiff's claim.

19. Now I propose to deal with the third plea raised by the appellant's counsel that the rent and compensation allowed by the trial Court for use and occupation of the buildings is excessive and that Rs. 300 assessed by the Deputy Commissioner as rent for the buildings was correct.

20. It was for the plaintiff to show that the rent claimed by them at the rate of Rs. 1,500 p.m was not excessive and was just and proper. (His Lordship considered the evidence and proceeded).

21. The learned trial Judge has relied on the bills sent by the plaintiff for the rent of the buildings requisitioned by them and he has found that the amount of rent mentioned in the bills was fair and proper and, therefore, allowed the plaintiff's claim at the rate of Rs. 1,200 p.m We have gone through the entire evidence of the plaintiff and we are of opinion that there is no material on the basis of which we can hold that the rent of Rs. 1,200 is just and proper. The amount spent by the plaintiff in constructing the buildings can by no means form the criterion for determining the rent. The suitability of the buildings to the defendant, the locality and the prevalent rents in that locality are the factors which would be helpful in assessing the fair rent of the buildings in question.

22. But, as pointed out above, the plaintiff has not been able to show the rate of rents prevalent in that locality although there is the evidence of their Own witnesses Mr. Dulloo and Mr. Jatinder Nath that these buildings were suitable for storage of grains. The defendant bought the whole property because it was suitable for storing grains and paid a price of Rs. 1,50,000 to the plaintiff for that property. In other words, the defendant assessed the value of the property at Rs. 1,50,000 which was accepted by the plaintiff company. Therefore, the price of the building paid to the plaintiff, in my opinion, would be a reasonable criterion on which rent could be assessed. Therefore the rent of the buildings can be safely calculated at 6 per cent p.m on the amount of Rs. 1,50,000 paid by the defendant as the price of the building which comes to Rs. 750 p.m

23. The plaintiff has not been able to prove that the stone ballast worth Rs. 5,133 has been used by the defendant and that they are liable to pay the price of the same. In these circumstances the trial Court has rightly disallowed this amount to the plaintiff.

24. As regards the set off claimed by the defendant in regard to the repairs executed, it may be mentioned that the defendant did not serve any notice to the plaintiff to execute repairs. If they had done so, the plaintiff might have undertaken the work of repairs themselves. It has not been further shown by the defendant that the repairs were absolutely necessary for the upkeep of the buildings. In these circumstances the set off claimed by the defendant cannot be allowed.

25. The total amount claimed by the plaintiff from the defendant as rent at the rate of Rs. 1,500 p.m for the period mentioned in the plaint was Rs. 54,000; but it has been found by the trial Court that some of the buildings were taken possession of by the defendant at a later date, i.e in November 1949 and this finding of fact has not been challenged before us by the respondent. The trial Court has calculated the rent at Rs. 1,200 p.m in regard to some buildings from November 1949 and in regard to others from January 1951 and has come to the conclusion that the total amount due from the defendant was Rs. 32,340. Relying on the calculation made by the trial Judge and reducing the rental from Rs. 1,200 p.m to Rs. 750 p.m the decretal amount is reducible proportionately to Rs. 20,212/8/- which the plaintiff is entitled to recover from the defendant.

26. We therefore, allow the appeal of the defendant to the extent that we reduce the decretal amount from Rs. 32,340 to Rs. 20,212/8/- with pro-prortionate costs throughout. The decretal amount shall be paid within two months from to days date.

27. K.V Gopalakrishnan Nair, J.:— I agree.

LC/R.G.D

28. Appeal partly allowed.