IN THE HIGH COURT OF SINDH, AT KARACHI

Constitutional Petition No.S-189 of 2013

Muhammad Naeem ….……………………………………………… Petitioner

Versus

Mr. Sardar Waqar Azam and others…………………………….Respondents

Date of hearing                                  25.02.2014 

Date of order                                       10.03.2014

Mr. Mirza Saeed Baig, advocate for the Petitioner.

Mr. Mehmood Ahmed Khan, advocate for the respondent No.1.

Nemo for respondent No.2 and 3.

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O R D E R

Abdul Maalik Gaddi,J  Through this Constitutional Petition, the petitioner has assailed the judgment dated 05.12.2012, passed by the learned 1st Additional District Judge, Karachi Central, whereby fair rent fixed by the Rent Controller at Rs.3000/- per month was enhanced to Rs.6,000/- per month in respect of rented premises in possession of the petitioner. The prayer of the petitioner in the petition is reproduced hereunder.

“It is therefore, prayed that this Hon’ble Court may be pleased to set-aside the judgment in Rent Case No.537 of 2008 dated 24.9.2010 passed by the learned IInd Rent Controller, Karachi Central and of 1^st Additional District Judge, Karachi Central in F.R.A No.209 of 2010 as the orders being illegal, unconstitutional and in deviation from the established law.” 

2.         Brief facts of the case, relevant for the purpose of disposing of this petition are that respondent No.1 filed application under Section 8 of Sindh Rented Premises Ordinance, 1979 against the petitioner, wherein he asserted that he is the owner/landlord of Shop No.K-2, in Al-Azam Square, situated on Plot No.ST-6/K, Block-1, Scheme No.16, Federal “B” Area, Karachi and the petitioner is his tenant in the said shop since 1981 at the initial rate of Rs.145/- per month which was later on enhanced to Rs.220/- per month by consent of the parties which is very low, although the rise in cost of construction as well as repair charges and new taxes have been imposed on the said property as well as there is a rise in the tax rate, water and conversancy charges, and the present rate of rent in the market of the similar premises situated in similar circumstances in adjoining locality is normally upto Rs.10,000/- per month, hence the petitioner filed the application for fixation of fair rent.  

3.         The petitioner filed his written statement denying the case and claim of the respondent No.1 regarding fixation of fair rent by taking the plea that the shop situated in the building is very old, never maintained by landlord and no fresh tax has been imposed by the Government Department. It is also denied that prevailing rate of rent in adjoining shops is more than Rs.10,000/- per month. 

4.         On the basis of pleadings of the parties, the following issues were framed by the trail Court.

1.         Whether the applicant is entitled for the fixation of fair rent of demised shop, if yes, at what rate and since when?

2.         What should the order be?

5.         The parties led their evidence by filing their affidavit-in-evidence.

6.         After hearing the learned counsel for the parties, the learned IInd Rent Controller, Karachi Central, allowed the application vide order dated 24.9.2010 by fixing the fair rent at the rate of Rs.3,000/- per month from the month of October, 2010.

7.         The petitioner challenged the said order through F.R.A. No.209 of 2010, which was dismissed by the Appellate Court. It is pertinent to mention here that the Appellate Court while dismissing the appeal of the petitioner, enhanced the fair rent from Rs.3000/- to Rs.6,000/- per month.

8.         I have heard the learned counsels for the parties at a considerable length and have gone through the pleadings of the parties, documents and   evidence on record.

9.         It is contended by the learned counsel for the petitioner that the impugned orders of the two Courts below are against the facts and law and they have not appreciated the evidence on record. He has further submitted that the landlord has failed to produce any documentary evidence to show that the Government has imposed new taxes; that rise in cost of construction and repair charges are increased; and that the rent of similar premises situated in the similar circumstances, in the same or adjoining locality is more than the petitioner is paying rent. He has further submitted that the learned Appellate Court enhanced the fair rent from Rs.3,000/- to Rs.6,000/- per month without any legal justification. Therefore, while he concluding his arguments has prayed to set-aside the impugned orders.

10.       On the other hand, the learned counsel for respondent No.1 has fully supported the impugned orders of two Courts below and stated that since there are concurrent findings of two Courts below. It has not been shown that any finding is against the evidence on record. Learned counsel further submitted that trial Court as well as Appellate Court have given cogent reasons in support of their findings and impugned orders do not call for any interference from the Court and prayed that this petition may be dismissed.

11.       I have considered the arguments of the parties advocates and the evidence led by the parties in support of their respective claim.

12.       From the record it reveals that the petitioner is paying rent from 1981 at the rate of Rs.145/- per month and then Rs.220/- per month, although inflation in rate has been increased and cost of living has also increased in past and this fact is evident from the evidence and documents produced by the respondent No.1, thus the respondent No.1 is entitled for enhancement of rent.

13.       Section of 8 of the Sindh Rented Premises Ordinance, 1979, reveals that in case of fixation of fair rent four factors are to be taken into consideration but the at the same time it is not necessary that all the four factors would be available in each and every case. In this connection, I have gone through the case of Messrs Noori Trading Corporation (Pvt) Limited v. Abdul Ghaffar reported in 1997 CLC 205, in which it has been observed as under:

“In case of fixation of fair rent of the premises though four factors mention in section 8 of the Sindh Rented Premises Ordinance, 1979 were to be taken into consideration, but as it was not possible that all four factors could be available in a particular case, application for fixation of fair rent could be considered on any of the four grounds. Application of landlord for fixation of fair rent, thus could not be thrown away simply for the reason that only one factor was pleaded in it, though in such case quantum of fair rent could be affected.”

14.       Perusal of record shows that respondent No.1 in support of his claim has examined himself and has produced Indenture of Lease Deed, copy of M.R.C No.599/1992, Deed of Relinquishment, copy of Letter of Administration No.73/1995, copy of Rent Receipt of other tenant at the rate of Rs.6,000/- per month and Certificate of Architect Nazim Associate, as Exh.A/1 to A/10. The respondent No.1 was cross-examined by the petitioner but he did not shake in cross-examination, whereas petitioner has also been examined in trial Court with his witness namely Muhammad Khalid but their evidence appears to sketchy, contradictory and also appears to not reliable on the subject.

15.       Since the sufficient evidence was available before the learned Rent Controller in shape of documentary evidence to pass the impugned order for fixing the fair rent at the rate of Rs.3,000/- per month on the ground that premises in question is situated in commercial area and petitioner is holding a considerable/sizeable area, wherein he is running his business for earning his living hood. It is also observed that prevailing rate of rent in adjoining shops is more than the petitioner is paying. This order was challenged but the Appellate Court while dismissing the appeal of the petitioner on merit enhanced the rent from Rs.3,000/- to Rs.6,000/- per month.

16.       It is contended by the learned counsel for petitioner that the learned Appellate Court was not justified to enhance the rent as according to him no appeal/cross-objection has been filed by the respondent No.1.

17.       Learned counsel for respondent No.1 supported the enhancement of rent in quantum of fair rent as according to him the same was recorded on the basis of record.

18.       In order to meet the above controversy, I have gone through the sub-section (3) of Section 21 of Sindh Rented Premises Ordinance, 1979, which says that appellate authority after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further inquiry either by himself or by Controller, may make an appropriate order, which shall be final.

19.       In my view the above power does not entitle the Appellate Court to pass an order in favour of respondent No.1, who had not filed an appeal against the Rent Controller’s order under the appeal to give him benefit for certain amount. The power under the above provisions of sub-section (3) of Section 21 of the Ordinance is to be exercised reasonably, justly and fairly within the frame work of the controversy which has been brought before the appellate authority and not in respect of a matter against which the respondent had no grievance and because of that had not filed any appeal. Therefore, under the circumstances, the Appellate Court was not justify to enhance the rent from Rs.3,000/- to Rs.6,000/- hence to this extent the finding of Appellate Court is not sustainable under the law.

20.       The upshot of the above discussion is that both the Courts below have rightly concluded that respondent No.1 has made out a case for fixation of fair rent and in this regard the learned Rent Controller under the circumstances of the case has rightly fixed the fair rent of the premises in question at the rate of Rs.3,000/- per month. Accordingly, the findings of the Rent Controller is, therefore, maintained and this petition is dismissed alongwith listed application.         

J U D G E