IN THE HIGH COURT OF SINDH AT KARACHI.
F.R.A No. 22 of 2006.
Shaikh Muhammad Sadiq
v/s
Mst. Zarin Islam
Before:
Mr. Justice Zia Perwez
Date of Hearing: 25.09.2007.
Appellant: Through Mr. Fasih-uz-
Zaman, Advocate.
Respondent: Through Mr. Qamar-ul-
Islam, Advocate.
ZIA PERWEZ, J:- This first rent appeal is directed against the impugned order of the Additional Controller of Rents Clifton Cantonment Karachi in Rent Case No. 15/2001 dated 09.09.2006, directing the appellant to handover the vacant and peaceful possession of the demised premises within 30 days while allowing the ejectment application.
2. Appellant is the tenant of respondent with respect to premises bearing Flat No.2, 21-C, 27th Commercial Street, Tauheed Commercial Area, Phase-V, Defence Housing Authority, Karachi (hereinafter referred to as the “demised premises”)
3. Rent of said premises was initially fixed under an agreement dated 11.3.2000 at Rs.6500/= per month exclusive of water, conservancy, electricity, gas, maintenance & telephone charges, initially for a period of 11 months. The agreement specifically provided that after expiry of 11 months, it may be renewed with mutual consent by both the parities with 10% increase in rent. On expiry of the period of 11 months, rent for three months at the rate of Rs.6,500/= per month was tendered through pay order but was not encashed by the landlord.
4. Application for ejectment U/S 17 of the Cantonment Rent Restriction Act, 1963, seeking ejectment of the tenant on ground of default and effecting unauthorized of alterations therein was contested by the appellant. Tentative rent order was passed by the learned Additional Controller of Rents dated 07.06.2001, directing the appellant to deposit arrears of rent w.e.f February, 2001 to May, 2001 @ Rs.7,150/- per month within fifteen days and to deposit the rent for the month of June, 2001 @ Rs.7,150/= and the rent for subsequent months at the same rate before 5th day of each succeeding month. As the rent case continued thereafter, the respondent moved an application U/S 17(9) of the Cantonment Rent Restriction Act, 1963, seeking orders for striking of defence of appellant on failure to deposit rent from 24.4.2004 at the enhanced rate of 10%. The application was allowed on 7.8.2004. Aggrieved by the said order, appellant approached this court by way of FRA No. 18/2004 which was allowed by this Court vide Judgment dated 17.01.2005 after arriving at a finding that the Rent Controller did not possess the jurisdiction to revise the tentative order and to pass a second tentative order. Accordingly, the appellant was allowed to deposit rent at the rate of Rs.7,115/= per month, which the appellant deposited till the final disposal of the rent case.
5. In the rent proceedings, following issues were framed:-
i. Whether on the facts and circumstances of the case opponent is in default of rent if so to what effect?
ii. Whether the opponent has violated the agreed terms of agreement dated 20.03.2000 if so to what effect?
iii. Whether on the facts and circumstances of the case opponent damaged the property and carried out unauthorized alterations, if so to what effect?
iv. Whether Rs.7,100/= is fair rent of the said premises?
v. What should the order be?
6. Learned Rent Controller after recording his findings on commission of default in payment of rent and of causing damage to the property dismissed the prayer for fixation of fair rent under section 7 of the Cantonment Rent Restriction Act, 1963 made by way of interlocutory application during the pendency of the rent proceedings. On the basis of above findings, appellant was directed to vacate the premises while allowing the ejectment application.
7. Heard learned counsel and perused the record. Contention of Mr. Fasih-uz-Zaman, learned counsel for the appellant, is that the rent of the premises was Rs.6,500/=. The parties agreed to the rent under a written agreement and learned Rent Controller acted beyond his powers in modifying the terms and order for payment of rent at a rent with 10% enhancement after every 11 months. As such the order is liable to be set-aside. In support of his contention learned counsel referred to the provisions of Section 17 of the Cantonment Rent Restriction Act, 1963. He further proceeded to argue that the jurisdiction of the learned Rent Controller do not empower him to fix fair rent under the provisions of Section 17(A) of the Said Act, however, such powers can be exercised under separate proceedings and not in the present case. Alternately, learned counsel argued that in view of provisions of Section 17(A) of the Said Act, the powers of enhancement vested in the exclusive domain and jurisdiction of the Rent Controller and the landlord had no power to increase the rent unilaterally without first seeking fixation of fair rent U/S 17(A) of the Said Ordinance. His next contention with respect to the ground of impairing of value of the building by fixing a steel door at the entrance of the premises. Mr. Fasih-uz-Zaman further contended that the premises was a commercial and in order to secure the same, the appellant affixed the steel door and locks right at the inception of the tenancy. These facts were well within the knowledge of the landlord. Likewise, the air condition was also installed at the same time but no objection was raised. He further contended that these minor alterations were necessary for enjoyment of the demised premises by the appellant which infact enhanced the utility of the premises. Even otherwise, the landlord holds security deposit to effect minor repairs necessary at the time of handing over the possession of the premises by the landlord. He placed reliance on the cases of Syed Qudrat Ali v. Mst. Maqbool Fatima & 3 others (1989 CLC 599), Samiullah v. Mian Muhammad Saleem (1971 SCMR 725), Muhammad Yusuf v. Muhammad Saghiruddin Qureshi (PLJ 1987 Karachi 260).
8. Mr. Qamar-ul-Islam Advocate, attorney and father of the landlord while opposing the appeal contended that the terms of tenancy agreement are enforceable even after expiry of the initial period of an agreement. Mere fact that the tenancy agreement expired did not amount to discontinuation of the said terms under which the premises was initially let out by the landlord to the tenant. He stressed that although the period of tenancy under an agreement was only for 11 months. Learned counsel has relied upon the cases of Muhammad Akbar v. Shaikh Nasiruddin (1991 MLD 1338), Abdul Aziz v. Yahya & 4 others (1993 MLD 1447), Mst. Nasima Begum v. Ali Dost (PLD 1993 Karachi 137), Laus Deo Enterprises v. Mrs. Suraya Jameel & another ( PLD 1991 Karachi 309).
9. Regarding the first question as to the installation of any air-conditioner and fixation of iron gate in the commercial premises would amount to impair the value of the premises. The meaning of word “impair” according to the Chambers 20th Century Dictionary, New Edition 1983 is that:-
Impair means “to diminish in quantity, value, or strength, to injure, to weaken, to become worse, to decay, to make worse, unsuitable, unfit, inferior”.
In the instant case the air-conditioner was installed at the time of commencement of the tenancy so was the iron gate. While the landlord has been vigilant in all matters as no protest was made in this regard till the expiry of the period of rent agreement. Mr. Qamar-ul-Islam could not explain or satisfactory reply that the changes effected may be restored at the costs of the tenant at the time of handing over the possession of the premises even security amount is available with the landlord. Under the circumstances, principles laid down in the case of Syed Qudrat Ali (supra) are attracted and no ground for grant of ejectment is made out and the finding is accordingly reversed.
9. AS to the second question of the enhancement of rent at the rate of 10% after the expiry of every 11 months, the same has been clearly spelt out in the agreement between the parties although the aforesaid agreement was only for a period of 11 months yet the intention of the parties is manifest after expiry of every successive period of 11 months, the rate of rent is to be increased at the rate of 10%. This clause does not operate within the initial period of tenancy. It comes into operation only on expiry of the terms of period of 11 months. There is no illegality in entry into contract so as to protect the future rights by the landlord with respect to his property when the agreement is entered into with free consent of the contracting parties. In the of Laus Deo Enterprises (supra), it has been observed that:-
“What is contended by Mr. Rizvi is that the agreed rent is Rs.3,000/= and it is increased after 31.8.1987 by 20% per year, it is hit by the provisions of section 10. I am unable to agree with his contention. Section 10 is not applicable to a case of increase in rent under an agreement on two grounds. Firstly the word “rent” may mean the rent fixed by a single indivisible contract covering two different periods by two different contracts entered into one after the original period (1-10-1986 to 31.-8-1987) was over. Secondly, section 10 relates only to the stipulation of a fine, premium or other like sum and does not concern itself with the payment of an increased rent. It would therefore be not correct to apply the provisions of section 10 to the facts of the case.
As there is no prohibition for the increase of rent by a contract between the parties in case where fair rent is not fixed, it cannot be said that the contract incorporated in tenancy agreement violated in any manner the provisions of section 10. The contract therefore is not illegal and void. The Controller, in my opinion, was correct in directing the appellant to deposit rent at the rate of Rs.3,600/=.”
For the foregoing reasons, I do not find force in the contention of Mr. Fasih-uz-Zaman Advocate. The appeal is dismissed, however, with the consent of parties request for twelve months period to vacate the demised premises is allowed subject to deposit of the arrears of rent as determined by the rent controller within 60 days and payment of future monthly rent at the rate inclusive of 10% enhancement after every 11 months alongwith the other charges recoverable as per terms of agreement and those paid for water by the other tenants as may become due and payable till the date of handing over the possession of the premises within a period of 12 months.