ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.S-504/2006

Sadruddin                  …………          Petitioner

Versus

Aslam Madad Ali

& others                    …………          Respondents

1.     For order on office objection No.2

2.     For order on CMA No.3067/2006

3.     For katcha peshi

Date of hearing:     24-1-2008

Mr. Zafar Hadi Shah, Advocate for the Petitioner

None present for the Respondent No.1

Mr. Haider Shaikh, State Counsel for Respondents No.2 & 3

KHAWAJA NAVEED AHMED, J. This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

       Brief facts of the case are that the Petitioner is owner/landlord of a building constructed on Plot No.126, Block-8, Aliabad, Federal B. Area, Karachi known as Murad Manzil. The Petitioner had given a flat situated on the second floor of the building on rent to Respondent No.1 in the year 1985 on monthly rent of Rs.500/-. The covered area of the flat is 1200 sq. feet consisting of three bed rooms each with attached bath, sitting room, dinning room and TV lounge. The Petitioner No.1 applied to the Rent Controller under Sections 8&9 of the SRPO, 1979 vide Rent Case No.639/2003 and had prayed that rent may be fixed at the rate of Rs.500/- per month as in the locality the prevailing rent for similar accommodation was Rs.5000/- per month. He has further submitted that due to inflation and rise in the cost of living and increase in the taxes the rent of Rs.500/- per month was inadequate and was even less then the taxes he was paying for the property. The learned IV Senior Civil Judge & Rent Controller, Karachi Central upon pleadings had framed following issues: -

1. Whether the rent of the similar accommodation situated in similar locality is Rs.5000/- per month and Applicant is entitled to get fair rent up to Rs.5000/- per month?

2. What should the order be?

The Petitioner in order to prove his case had examined himself in Court. The Respondent in rebuttal had filed written statement to the plaint and had examined himself on oath.

From the pleadings and evidence, which had come on record the learned Rent Controller had reached on the conclusion that application, is allowed. The operative portion of the order passed by the learned Rent controller is reproduced here under: -

“In the above circumstances the application under disposal is allowed. Therefore in my view the fair rent of the premises is Rs.500/- and increased water, conservancy and other taxes from Rs.414/- to Rs.1000/-. The application is disposed of accordingly.”

The Rent controller had maintained the rate of rent at Rs.500/- per month, but was pleased to increase the water and conservancy charges from Rs.414/- to Rs.1000/-. It is not understandable that on one hand the learned Rent controller has written that application under disposal is allowed and on the other hand he maintains the rate of rent at the rate of Rs.500/- per month.

However, being aggrieved from this order the Petitioner had filed FRA No.69/2005, which was transferred to learned III ADJ, Karachi Central, who after hearing the parties was pleased to observe as under: -

“In view of above discussion I am of the opinion that the appellant/landlord has failed to bring on record sufficient material to prove his case for determination of fair rent at the rate as claimed. I do not find any illegality or irregularity in the impugned order. All the legal and factual aspects have been properly evaluated by the Rent Controller. Appeal in hand is devoid of merits and stands dismissed with no order as to cost.”

The learned III ADJ, Karachi Central in his order dated 09-9-2006 has reproduced the requirement of Section-8 of SRPO, 1979, which are being reproduce here under: -

1)         The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors: -

a)         the rent of similar premises situated in the similar circumstances, in the same adjoining locality.

b)         the rise in cost of construction and repair charges

c)         the imposition of new taxes, if any, after commencement of the tenancy, and

d)         the annual value of the premises, if any, on which property tax is levied.

2)         Where an addition to or, improvement in any premises has been made or any tax, or other public charges has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as bills of electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section-9 to be determined or, as the case may be, revised after taking such charges into consideration.”

The learned III ADJ Karachi Central has further observed as under: -

“On bear reading of the above provision it appears that the Rent controller while fixing the fair rent, has to take into consideration all four factors specified therein and after giving due consideration to these factors can determine the fair rent. The Rent controller in the impugned order has observed as under; -

“From the above evidence it has come to record that no repair and white wash has been carried out. The construction is pertaining to the year 1995, hence the ground taken in the application under Section 8f of SRPO 1979 for increase of rate of construction and expenditure of construction is not attracted in this case. The applicant has failed to produce any receipt/documentary prove that the rent of similar accommodation in the locality is Rs.5000/- even the rent receipts produced by the applicant does not bear the signature of landlord/rent collector. In the said receipt the rate of rent is claimed i.e. Rs.5000/- is not mentioned. The opponent admitted that the taxes are increased during the last 2 ½ years and keeping in view that expect of application I am of the opinion that the applicant is entitled for increase of rent on the ground of increase of taxes only.

In the above circumstances the application under disposal is allowed. Therefore, in my view the fair rent of the premises is Rs.500/- and increased water conservancy and other taxes from Rs.414/- to Rs.1000/-. The application is disposed of accordingly.”

I have perused the pleadings as well as orders passed by the Courts below and have heard Mr. Zafar Hadi Shah, Advocate. There are concurrent findings of both the Courts below. It is settled law that the High Court in constitutional jurisdiction can reverse the concurrent findings of the Courts below if the same are based on misreading or non-reading of evidence or the same are fanciful and are against the law laid down by the Superior Courts. Mr. Zafar Hadi Shah, Advocate has placed before a case law reported in 1997 AC, Page 633, M/S NOORI TRADING CORPORATION V. ABDUL GHAFOOR, where it has been held by the learned single Judge of this Court Mr. Justice Nazim Hussain Siddiqui (as he then was) as under: -

“A perusal of Section 8 of the Ordinance reveals that in case of fixation of fair rent the four factors mentioned in the section are to be taken into consideration. It is, however, not necessary that all the four factors would be available in each and every case. For example, if fair rent is claimed on the basis of rise in cost of construction and repair charges this plea would not be available in a case where repairs were not carried out. Likewise a ground of imposition of tax after commencement of the tenancy would only be available after the new taxes were imposed. It is possible that all the four factors in a particular case may be available, but so could not be in all case. It is pertinent to point out that in Civil Appeal No.818-D referred to above, the observations of Saleem Akhtar, J were considered and approved, wherein it was laid down that failure of the landlord to bring on record material evidence in respect of any of the four elements to show increase would not necessarily lead to the rejection of the application, but it may effect the quantum of fair rent. Thus, it is evident from above observation that application on any of the ground could be considered, though in such case the quantum of faire rent may be affected.”

Mr. Zafar Hadi Shah has further relied upon NLR, 1993 AC (Civil) Page 366 STATE LIFE INSURANCE CORPORATION V. PAKISTAN NATIONAL SHIPPING CORPORATION, wherein the learned single Judge of this Court Mr. Justice Mukhtar Ahmed Junejo (as he then was) has observed as under: -

“A Rent Controller while determining fair rent has to take into consideration the rate of rent in the adjoining rented premises if such rate is equitable and just. The occupants of the premises in Muhammedi House, except those who have entered into fresh agreements of lease with the respondent, appear to be oblivious of the inflation since the proceedingd decade. Rates at which they paid rent then years ago, cannot be guide line for the Rent Controller charged with fixing fair rent of the premises in litigation.”

Learned Counsel for the Petitioner further relied upon judgment report in PLD, 1987, Karachi, 541 MST. AQILA KHATOON V. ABU BAKAR KHAN, wherein the learned single Judge of this Court Mr. Justice Muhammed Mazhar Ali (as he then was) has observed as under: -

“Mr. Rehan ul Hassan Farooqui learned counsel for the respondent submitted that section 8 is quite independent of section 9 and too cannot be read together for the purposes of determining of fair rent. In support of his contention learned counsel for the respondent placed reliance on the following cases of this Court:

Muhammed Jameel v. Muhammed Raheem reported in 1987 CLC 176

In this case Saeed uz Zaman Siddiqui, J. held:

“………It is quite clear from the language of section 8(2) of the Ordinance, Section 9 of the Ordinance that the determination of fair rent in the circumstances mentioned in this sub-section is uncontrolled by the provision of Section 9 of the Ordinance. Section 9 of the Ordinance which comes after Section 8 of the Ordinance begins as follows: -

“Where the fair rent of any premises has been fixed………..”

It is, therefore, quite clear that Section 9 is applicable only where fair rent of any premises has already been fixed by the Controller. It is also clear that fair rent when once fixed cannot be further increased except as provided in Section.

9. It is settled rule of interpretation that ordinarily the proviso or sub-section should be governed by the operative portion of the section. A sub-section will, therefore, ordinarily embarrass the field which is covered by the main provision. There is nothing in the language of sub-section(2) of the Section-9 of the Ordinance, to suggest that it was intended to deal with the subject matter out side the scope of main enacting part. There is equally no indication in the language of this sub-section to justify the inference that although it is enacted as a sub-section of Section-9, but it should read as an independent provision applicable to rest of the ordinance. The expression “in any case” in Section 9(2) in my humble opinion did not apply to fair rent under Section 8 of the Ordinance. The increase in rent referred to in sub-Section-(2) of Section-9 as reference only to cases where fair rent has already been fixed by the Rent controller and the landlord again applied for increase of such fair rent. It cannot over looked that the rental value of many premises let out some fifteen to twenty years ago have become highly disproportionate to the existing rental value of these premises. The legislature was aware of the situation while enacting Ordinance XVII of 1979. It is, therefore, quite clear that the in order to give relief against such disparities in the rental values of premises the rent controller were authorized to fix fair rent of premises in accordance with the existing rent of the premises situated in similar circumstances in the same or adjoining localities. The rise in the cost of construction, imposition of new taxes and annual values of the premises assessed by the property tax. If the argument of the learned Counsel for the respondent is accepted then inspite of the fact that on consideration of the circumstances mentioned in sub-clauses (a) to (d) of sub-section (1) of Section 8 of the Ordinance. The Rent controller may reach the conclusion in a given case that the “fair rent” should be fixed three or four times of the existing rent, but he will not be able to do so. This clearly could not be the object of the legislature, I , therefore, find no substance in the submission of the learned Counsel of the Appellant that the fair rent to be fixed by the Rent controller under Section 8 could not in any case exceed 10% of the existing rent”.

In another case i.e. 1995 MLD 181, Karachi SHAKEEL ADILZADA V. S.M. RAFI the learned single Judge of this Court Mr. Justice Rana Bhagwandas (as he then was) observed as under: -

“I am clear in my mind in holding that under the law it is not at all necessary that all the four grounds must co-exist in each and every case for fixation of fair rent. There may be cases in which there is no enhancement in the fixation of annual rental value by the Excise and Taxation Department or increase in taxes by a local body which would not be a ground for not fixing fair rent of the premises at the instance of one of the parties. The ration of the decision of the Supreme Court lends support to this view which is even otherwise binding on this Court. In the present case learned Controller having taken into consideration the rent of similar rooms in the same building has arrived at a just and fair conclusion which cannot be interfered with in the exercise of appellate jurisdiction. Appeal is accordingly dismissed.”

Similarly in another case law 1987 CLC 2182, ABDUL GHAFFAR V. NOOR JAHAN MALIK, the learned single Judge of this Court Mr. Justice Muhammed Mazhar Ali (as he then was) observed as under: -

“The submissions of the learned counsel to the effect that clause (a) of sub-section (1) of section 8 lays down that the Rent controller can take into consideration only the rent of similar premises situated in similar circumstances, in the same area or adjoining locality exclude the premises situated in the same building in which the premises in question is situated, has no merits.”

Learned State Counsel has no objection for enhancement or fixation of fair rent.

From the foregoing it is clear that both the Courts below have misread the evidence or have not properly appreciated the same. It is even in common knowledge that the rate of rent in Karachi has increased during last 20 years and presently a two rooms flat in a posh locality is available on the monthly rent of Rs.10,000/- to Rs.15,000/-, while similar accommodation in Federal B. Area and Nazimabad is available at the rate of Rs.5000/- to  Rs.7000/- per month. However, keeping in view the old tenement and condition of the building in question I enhance the monthly rent from Rs.500/- to Rs.2500/- per month and taxes and conservancy at the rate of Rs.1000/- per month. The tenant has to pay Rs.3500/- per month. Keeping in view the financial condition of the litigant I will not order enhancement from the date of filing of the application because that period comes to near four years and it will be difficult for a lower middle class family to pay the arrears on enhanced rate. The enhancement is allowed from the month of March 2008. The tenant is required to pay monthly rent at the rate of Rs.2500/- and water and conservancy charges at the rate of Rs.1000/- per month from 01-3-2008 till he continues to remain tenant under the law.

Petition No.S-504/2006 stands disposed of.

                                    JUDGE