Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 25.01.2010
Date of order : 09.03.2010
Petitioners : Mst. Ameena Bai & others through Mr. Badar Alam, Advocate.
Versus
Respondents : Mirza Subhan Baig & others through Mr.Raja Aftab Ahmed Khan, Advocate
JUDGMENT
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the impugned order dated 30th March 2009 passed by the IIIrd Additional District Judge Karachi South in F.R.A No.199 of 2008, the instant petition has been filed by the petitioners challenging the fixation of fair rent by the Rent Controller and enhancement of the same by the IIIrd Additional District Judge (South) Karachi through the impugned order.
2. Brief facts leading to the instant controversy are that the appellant/respondent filed a rent case before the Rent Controller i.e Rent Case No.1467 of 2006 under Section 8 of S.R.P.O 1979 for fixation of fair rent in respect of tenement i.e. Flat No.5, 2nd Floor, Muzaffar Manzil, Megjee Bhagwanjee Street, off Nishtar Road, Karachi. It was urged that the tenants the present petitioners are paying rent of the said flat at the rate of Rs.95/- per month since 1983. It was argued that the cost of the maintenance, repairs renovations and construction have been increased manifold and further water charges, KMC/City Government taxes and other taxes have been increased, subsequently the landlord requested the tenants to increase the rent, which request was not acceded by the tenant and instead the tenant started depositing rent in M.R.C No.1148/2000 before the learned IXth Rent Controller Karachi South. It was urged that looking to the above mentioned factors and the prevailing rent in the vicinity rent of the said flat may be fixed at Rs.3000/- per month instead of Rs.95/-. The application for fixation of fair rent was opposed by the tenant/petitioner, who filed written statement denying all the averments made by the applicant/respondent. Both the parties led evidence in support of their contention.
3. The learned trial Court framed the flowing issues:
(a) Whether the applicant is entitled to the fixation of fair rent? If so to what extend and at what rate.
(b) What the decree should be?
4. After hearing the arguments of both the parties and on the basis of evidence adduced in support, the learned Rent Controller passed the decree in favour of the respondent/landlord and directed the petitioners/tenants to pay rent at the rate of Rs.1000/- per month instead of Rs.3000/- as claimed by the respondents/landlords.
5. Being aggrieved and dis-satisfied with such order the respondent/landlord preferred First Rent Appeal before the IIIrd Additional District Judge Karachi South, whereas the petitioners/tenants did not assail such orders in appeal. The main grounds in the F.R.A against the impugned findings of Rent Controller were that the learned Rent Controller was not justified in fixing the fair rent at Rs.1000/- per month instead of Rs.3000/- claimed by the respondent/landlord which according to the respondents was even at lower side, as compared to the rent existing in the vicinity. It was argued that in the area of Garden, the similar accommodation is available at Rs 5,000/- to Rs 7,000/- per month. Reliance was placed on the reported case i.e. Sadaruddin v. Aslam Madad Ali & others P.L.D 2008 Karachi 205 and Eastern Automobiles (Private) Ltd., Karachi v. Pakistan National Shipping Corporation Karachi P.L.D 1993 Karachi 9.
6. Conversely, the learned counsel for the petitioners/tenants seriously objected the claim of the respondent/landlord requesting for fixation of monthly rent at Rs.3000/- per month instead of Rs.95/- as according to the petitioners/tenants the respondent/landlord did not produce any witness and documentary evidence for the purposes of determination of fair rent. It was further argued that the petitioners/tenants offered to pay rent of the premises at the rate of Rs.500/- per month to the respondent/landlord as other tenants of the same building were paying rent to the respondent which fact was stated in para 5 of their affidavit-in-evidence and the same was not denied or challenged during cross-examination of the petitioners/tenants by the advocate for the respondent/landlord which according to the learned counsel amounts to admission regarding the rate of rent as mentioned by the petitioners/tenants. Reliance was placed on State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt) Ltd. 2008 C.L.C 517 Karachi and M/s Kashmirian (Pvt) Ltd. & others v Ghulam Nabi Gujjar & another 2006 CLC 482 Lahore.
7. After hearing both the parties at length and examining the evidence available on record, the learned IIIrd Additional District Judge (South) Karachi decided the case against the petitioners/tenants by fixing Rs.3000/- per month.
8. The learned counsel for the petitioners has seriously objected the finding of the learned Additional District Judge on the ground that the impugned judgment is based on mis-reading and non-reading, oral and documentary evidence on record. The learned counsel further argued that the photocopies of the alleged tenancy agreements in respect of flats situated in another building without producing their originals were not admissible-in-evidence in terms of Article 79 of Qanun-e-Shahadat Order, 1984. The learned counsel further argued that while fixing the fair rent at Rs.3000/-, the learned Additional District Judge failed to appreciate that in the absence of any evidence relating to the flats situated in same building where the flat of the petitioners is situated, reference to the tenancy in respect of other building purported to be in the vicinity was misconceived. The learned counsel further argued that besides being inadmissible in evidence the documents produced by the respondent/landlord in support of their claim of fixation of fair rent were all managed documents. In support of his contention regarding application of the provisions of C.P.C in rent proceedings, he placed reliance on the following cases:
(i) Haji Khudai Nazar & other v. Haji Abdul Bari 1997 SCMR 1986.
(ii) Abdul Rauf v. Nawab Ali and 3 others P.L.D 1986 Karachi 117.
9. As regards applicability of Qanun-e-Shahadat Order, 1984 to rent proceedings, reliance was placed on the case of Sultan Ali v. Mst. Khatija Bai 1995 CLC 1441.
10. The learned counsel for the petitioners also referred to a judgment reported as Mushtaq Ahmed v. Abdul Sattar 1984 MLD 1 to show that in terms of Section 5(i) of SRPO, 1979 ejectment cannot be sought under Section 15(2) (i) on the basis of a rent agreement not attested by an officer mentioned in Section 5(i). Similarly, on the point of maintainability of constitution petition in the rent matters, he placed reliance on the case of Utility Stores Corporation of Pakistan Ltd. V. Punjab Appellate Tribunal & others P.L.D 1987 SC 447 (FB) (f) relevant 452-G to show when Tribunal makes error of law in deciding the matter before it, it goes outside the jurisdiction which can be quashed under writ jurisdiction.
11. The learned counsel for the petitioners, in support of his legal objection about the documents inadmissible in evidence, has placed reliance on the cases of (i) Naik Muhammad v. Bagh Ali PLD 1987 Lahore 208, (ii) Muqarrab Hussain v. Pirzada Muhammad Rafiq 2001 Y.L.R 1103 and (iii)Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 (FB) (e) to show that in terms of Order 13 Rule 4 CPC, the documents which are not copies of judicial record, should not be accepted in evidence without proof of signature and hand writing of person who alleged to have signed or written them even if such documents are brought on record and exhibited without objection. In support of his contention relating to not producing the tenancy agreements of the flats situated in the same building where the flat of the petitioners/tenants was situated, which according to learned counsel for the petitioner amounts to withholding best evidence by the respondent/landlord, he placed reliance on the case of M/s Kashmirian (Pvt) Ltd & others v. Ghulam Nabi Gujjar & another 2006 CLC 482. While concluding his arguments, the learned counsel for the petitioners submitted that the impugned order suffers from patent illegality pointed hereinabove, hence is not sustainable in law.
12. Conversely, the learned counsel for the respondent has supported the impugned judgment passed by the IIIrd Additional District Judge (South) Karachi, to be proper and just. It has been argued that the references to the documents which were produced in evidence before the Rent Controller were neither objected nor the same were declared as inadmissible. It was further argued that the petitioners/tenants did not file any appeal against such order which has attained finality for the all legal purposes except the amount of fair rent which was disputed by the respondents and an appeal was preferred before IIIrd Additional District Judge, whereas no appeal was filed by the present petitioners. It was argued by the learned counsel for the respondent that whatever objection, the learned counsel for the petitioners/tenants is trying to raise for the first time in extra ordinary jurisdiction which objections besides being misconceived, cannot be raised in these proceedings. The learned counsel further argued that the rent proceedings were meant for the limited purpose of fixation of fair rent which is discretion of the Rent Controller. Once such proceedings concluded without any objection by either party relating to evidence produced or relied upon and the Rent Controller has exercised its discretion of fixation of fair rent. The parties can assail the finding of fixation of rent to the extent of the amount of rent which was fixed as fair rent but not otherwise. The learned counsel further states that since the petitioners did not object to the proceedings undertaken by the Rent Controller fixing the fair rent nor preferred any appeal against such order, they are stop from raising such objection at the subsequent stage particularly in writ jurisdiction. In addition to the above arguments, the learned counsel also argued that rent proceedings are independent and special in nature, it is for the Rent Controller to adopt his own procedure for the purposes of SRPO, 1979. In support of his arguments he has placed reliance on the reported judgments (i) Mian Tajammul Hussan v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137, (ii) Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111, (3) Rana Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315 to show that the documents once admitted in evidence and brought on record, the contents of such document could be read and given effect to by Court.
13. As regards the discretion vested in the Rent/Controller and the Appellate Court enhancing the rent or fixation of fair rent in term of Section 8 SRPO, 1979, learned counsel has placed reliance on the following judgments:
(i) Sadaruddin v. Aslam Madad Ali and others PLD 2008 Karachi 205
(ii) Olympia Shipping and Weaving Mills Ltd and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103
(iii) Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others PLD 2005 Karachi 554
(iv) Mukhtarul Qamar v. State Life Insurance Corporation of Pak. & others S.B.L.R 2008 Sindh 1816
(v) State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt) Ltd. S.B.L.R Sindh 840
(vi) Muhammad Afaq v. State Life Insurance Corporation of Pakistan & others S.B.L.R 2008 Sindh 504
(vii) Ittehad Chemicals Ltd. V. VII Additional District & Sessions Judge and others 2010 S.B.L.R Sindh 72
(viii) Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246
14. I have heard both the learned counsel, perused the record and the impugned order passed in this case. It appears that the controversy relates to fixation of fair rent by the Rent Controller in terms of Section 8 of Sindh Rented Premises Ordinance, 1979. It will be appropriate to reproduce the provision of Section 8 of the Sindh Rented Premises Ordinance, 1979 for the purposes of determining the scope of application.
"8 Fair rent: (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 or 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 any addition to, or improvement in, any premises has been made or any tax, or other public charge has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as lifts or 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 changes into consideration."
15. From the perusal of the above mentioned provisions and case law relied hereinabove by the respondent it appears that the Rent Controller has the jurisdiction and discretion to fix the fair rent in respect of any premises on the application by landlord or tenant while doing so the Rent Controller is required to keep in mind four factors for determining the fair rent :
(i) The rent of similar premises situated in the similar circumstances, in the same or adjoining locality.
(ii) The rise in cost of construction and repair charges.
(iii) The imposition of new taxes in respect of tenement.
(iv) Annual value of the premises on which property tax is levied.
16. As per the ratio of the judgments relied hereinabove by the learned counsel for respondent it appears that for the purposes of exercising jurisdiction under Section 8, it is not necessary that all the four factors are relevant for the purposes of determining of fair rent. Availability of any of the factors may be sufficient to fix fair rent of the premises. In the case of Eastern Automobiles (Private) Karachi v. Pakistan National Shipping Corporation, Karachi PLD 1993 Karachi 9, this Court while interpreting the provisions of Section 8 has held as under:
"I have perused the above-cited judgments referred to by the learned counsel for the parties. In all the above cases, the principle that has been laid down is that the Rent Controller while fixing fair rent has to consider the four ingredients mentioned in section 8 of the Ordinance. In none of the above-cited cases has it been held that all the four ingredients should co-exist. Existence of any one of the ingredients may be sufficient for fixation of fair rent if the circumstances of a particular case require the same."
17. In the case of Mst. Mehrunnisa v. Muhammad Rafiullah 1995 CLC 202, this Court remanded the matter to the Rent Controller for the reason that fixation of fair rent by the Rent Controller was not based on any of the factors mentioned in Section 8 of Sindh Rented Premises Ordinance, 1979.
18. In the case of Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137, the Hon'ble Supreme Court has held as under:
"Appellants had not challenged genuineness of such document/letter, but admitted the same to be genuine and correct. Fact that such document was not exhibited would not exclude such document from being taken into consideration and basing judgment thereon. Admitting the document in question, in evidence, and relying upon the same would not be an illegality so as to vitiate the judgment and decree passed by the Court and confirmed in appeal. Decree and judgment based upon such document was thus, valid especially when no other evidence, oral or documentary, was produced by the parties."
19. In the case of Messrs Olympia Shipping and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103, the Hon'ble Supreme Court while examining the scope of Section 8 of SRPO, 1979 has held as under:
"It may be observed that four factors incorporated in law are in the nature of guiding principles for the Rent Controller for determination of fair rent. The cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight. Nevertheless, common ground available in most of cases would be the prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality. It may thus, be made clear that existence of all the four conditions is not the invariable rule of law and presence of all factors in a case might lead to appreciation in determining rate of rent for the purpose of fair rent. Absence of any of the factors would not, in any case, prejudice the case of the applicant before the Rent Controller."
20. In the case of Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others P.L.D 2005 Karachi 554, this Court has reiterated the similar finding by holding cumulative effect of all four factors enumerated in Section 8 (1) of Sindh Rented Premises Ordinance, 1979, were to be taken into consideration by Rent Controller for fixation of fair rent. Mere fact that property tax paid by landlord in respect of building, being less than the rate of rent fixed by Rent Controller, could not be made basis to hold that findings were not based on proper appreciation of evidence/case recorded.
21. It is pertinent to mention that in the instant case an order was passed by the Rent Controller on the application filed by the petitioners according to which an amount of Rs.1000/- instead of Rs.3000/- was fixed by the learned Rent Controller as fair rent of the subject property. The said order was not objected by the present petitioners and no appeal was filed, whereby the respondent preferred an appeal before the learned Additional District Judge Karachi, who while exercising the discretion vested in such Court, has allowed the appeal and fixed the fair rent of the subject property at the rate of Rs.3000/- per month as claimed by the respondent. It is further pertinent to note that before the learned Rent Controller no objection relating to jurisdiction of the Rent Controller or procedure adopted for the purposes of examining the evidence was made. Similarly, in appeal before the learned Additional District Judge there appears to be no objection raised by the petitioners in this account. It is for the first time the petitioners have attempted to raise certain purported legal objections on the admissibility of some documents and wrongful exercise by the Rent Controller. Perusal of the impugned order shows that after examining the available record produced by both the parties and hearing both the counsel for the parties, learned Additional District Judge has decided the appeal and in his discretion has fixed the fair rent to the tune of Rs.3000/- per month. Prima-facie there appears no justification for invoking the extra ordinary constitutional jurisdiction of this Court against an order which appears to have been passed by the learned Additional District Judge in exercise of discretion available to him in law. I am of the view that the rent proceedings are special in nature and discretion is vested in the Rent Controller to adopt his own procedure particularly when there is no dispute with regard to jurisdiction or nature of the proceedings undertaken by the Rent Controller. Such objection besides being hyper technical cannot be entertained at this stage in the absence of any allegation pointing out any jurisdictional error or patent illegality in the impugned orders. On the contrary, there is concurrent finding of fact and law whereby the application of fixation of fair rent in terms of Section 8 of S.R.P.O, 1979 has been allowed. I am of the view that the case law relied upon by the counsel for the petitioners are based on distinguishable facts, hence not attracted in this case. Under the circumstances, the instant petition is hereby dismissed in limine alongwith listed application.
JUDGE