IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
C.P. No.S-1123 of 2017
Shaikh Sultan Ahmed
Versus
Iftikharuddin Paracha & others
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Date of Hearing: |
18.04.2018 |
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Petitioner: |
Through Mr. Khalid Mahmood Siddiqui Advocate. |
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Respondent No.1: |
Through Mr. Zafar Iqbal Dutt Advocate |
Muhammad Shafi Siddiqui, J.- This petition involves determination of fair rent under section 8 of Sindh Rented Premises Ordinance, 1979. It is filed against the concurrent findings of two Court below in terms whereof fair rent in respect of demised premises was fixed at Rs.270 per sq. foot per month.
2. Shop No.8 (hereinafter referred as subject premises) having area of 575 sq. feet is situated on the ground floor of “Uzma Corner” on Plot No.DC-8, Block-7, Main Clifton Road. Respondent filed Rent Case No.490 of 2011 for fixation of fair rent which was contested. Apparently there was some difference/dispute in the quantum of original rent as the tenant claimed to have paid rent until determination of fair rent, at the rate of Rs.575 per month whereas in the cross-examination the landlord admitted that an additional amount of Rs.575 was also paid towards furniture and fixtures. This discrepancy would make no difference in the ultimate conclusion of case. The Rent Case No.490 of 2011 was disposed of on 06.11.2014 while determining the fair rent at the rate of Rs.270 per sq. foot per month which comes to Rs.155,250/- whereas appellate Court vide judgment dated 20.03.2017 maintained it.
3. It is the case of the petitioner that the respondent may have been able to explain the increase in property tax and the rise of cost of construction upto a certain extent, having its reciprocal application, but the references of the similar and identical premises, as required in terms of section 8 of Sindh Rented Premises Ordinance, 1979 was not established. It is argued that reliance was placed on the premises situated on “Uzma Court” and “Yousuf Grand Square” which are all across the road and in fact diagonally far away and may not be considered as a premises in the same vicinity similar to that of the demised premises.
4. Insofar as the expert opinion of the representative of Dolmen Estate Agency, a real estate consultant, is concerned it has been argued that such cannot be relied upon as the expert opinion does not come within the frame of four ingredients required by section 8 of Sindh Rented Premises Ordinance, 1979, nor have they filed any rent agreements to substantiate their expert opinion.
5. On the other hand learned counsel for respondent has supported the judgments impugned herein and submitted that all the four ingredients have been discussed and the fair rent has rightly been determined by the two Courts below. He argued that two Courts exercised their direction and based on evidence, judgment was passed which cannot be interfered under Article 199 of the Constitution of Islamic Republic of Pakistan to form another view.
6. I have heard the learned counsel and perused the material available on record.
7. The claim insofar as the rise in cost of construction and the increase in the property tax of Uzma Corner is concerned, that has already been conceded by the petitioner’s counsel and even in the cross-examination such enhancement was not disputed which will have its proportionate application. All that is required to be seen is, whether the Rent Controller and the appellate Court have rightly applied the references of the premises situated across the road as compared to the location where the subject demised premises is situated?
8. It is the case of the petitioner that after construction of KPT underpass near the demised premises it does not remain an ideally located corner of Clifton Road. Once the visitor crosses the underpass, they would leave the subject demised premises/subject shop a bit behind and would emerge ahead of that location and that the visitors or shoppers are supposed to take U turn to visit the subject premises. Thus, the subject premises is not a shop which can be ideally compared with the shops across the road which is in fact on a thoroughfare and thus not ideally comparable within the meaning of Section 8. Availability of car parking in and around the vicinity of subject premises is also not a decisive factor since car parking space is available for the convenience of the shoppers and visitors around the referred premises as well hence this would not be a material advantage to keep the two premises exactly at par.
9. Indeed no two properties can be identical/replica or duplicate copy nor the legislature meant that way but every effort should have been made to reconcile the advantages and disadvantages of the two premises to apply Section 8(a) of Sindh Rented Premises Ordinance, 1979 so that the result may not be arbitrary. The referred shops get its visitors and shoppers from two roads. One is the thoroughfare Khayaban-e-Roomi and the other is Clifton Road while one take left curve whereas if one continue straight on main Clifton Road, and passes through underpass ahead it would take visitors and shoppers a little ahead of demise shop. Indeed it gives an ultimate advantage to a shop situated on a thoroughfare/Khayaban-e-Roomi rather than subject premises. The references of the premises as made by the respondent should not have been taken into consideration as if they are identically located premises or similar premises but only inference could be drawn as the vicinity is same. All that is required to be kept in mind was that shopper had to take a U turn and one had to plan to visit the subject premises and it is not deemed to be on the way of the visitors and shoppers. Hence, I am of the view that it was taken into consideration by the Rent Controller, followed by appellate Court, being located in the vicinity, but was not kept in mind that the location of subject premises is slightly disadvantageous as compared to referred one. If slight disadvantage may not be a proper word it may be seen as less advantageous than the one referred for drawing inference. The amount of rent disclosed to have been fetched by the referred premises across the road was squarely applied to shop in question, which does not appear to be appropriate.
10. For a situation similar to above, in an unreported case of M/s Kodvavi & Co. v. Mian S.M. Yousuf Baghpatee in FRA No.610 of 1998 Mr. Justice Sabihuddin Ahmed, as he then was, in similar circumstances has observed as under:-
“12. …This, however, does not mean that evidence must be ignored the moment any dis-similarity of circumstances is shown because in that event in many cases it may be impossible to establish that two premises are exactly similar to each other. Perhaps a more pragmatic approach would be to make adequate allowance for a lesser or greater decree of facilities available in the comparable premises while determining the quantum of fair rent.
13. …It would therefore, follow that fair rent would be the rent which Rent Controller finds to be appropriate according to his judicial conscience in the circumstances of a particular case after cumulatively taking the factors outlined in Section 8(1) into consideration.
14. ….Nevertheless in my humble opinion if Section 8(1)(a) to be so narrowly constituted as suggested by learned counsel it would lose its efficacy. Indeed when the law protects a tenant against ejectment upon payment of rent agreed upon several decades ago and several tenants in an old building are enjoying such protection the application of any landlord for determination of fair rent might fail on the ground that other tenants of the building are paying much less than the amount claimed. I am, therefore, inclined to take the view that the expression “rent of similar premises” appearing in Section 8(1)(a) is relatable to recently transacted tenancies and the evidence adduced by the appellants though required to be considered had little probative value.
15. …There being no statutory fetters on the quantum of increasing rent in my humble opinion the question has to be determined from the facts and circumstances of each case. In a particular case a Rent Controller may find increase of rent from Rs.20/- to Rs.400/- (20 times) to be entirely fair and in another two times increase from Rs.15000/- to Rs.30,000/- may be unconscionable.”
11. By closely scrutinizing the pleadings and the cross-examination and the references of similar or adjoining premises and by applying cumulative effect of all four ingredients of Section 8 of Sindh Rented Premises Ordinance, 1979 even a liberal approach would lead to a conclusion that there is a slight disadvantage attached to demised premises but not much is being taken away. However, it cannot be ruled out, as a matter of fact, that the referred premises was situated on a thoroughfare road, and having another road curving around towards said thoroughfare called Khayaban-e-Roomi and the shoppers/visitors are being catered from two roads directly.
12. In view of the above and after perusal of evidence, I modify the order/judgment impugned in this petition and determine fair rent at the rate of Rs.230/- instead of Rs.270/- per sq. foot per month payable from the date of application as determined by the Rent Controller.
13. Finally as to the point raised by respondent’s counsel that effect of Section 9 of Sindh Rented Premises Ordinance, 1979 be applied, needless to mention that law has to take its own course as Section 9 of Sindh Rented Premises Ordinance, 1979 would apply to a determined/ fair rent.
14. Petition is allowed with the above modification.
Dated: Judge