2013 PLP 105 (MLD)

SADIQ HUSSAIN BHATTI, J.

Through this constitutional petition the petitioner has assailed the judgment dated 11-2-2004, passed by VII Additional District Judge, Karachi South whereby fair rent payable by the petitioner/tenant was fixed at Rs.10,000 per month with the following prayer and relief: "It is, therefore, prayed that this Hon'ble Court may be pleased to set aside the judgment in Rent Case No.570 of 1991 passed by the Court of IIIrd Senior Civil Judge and Rent Controller (South and of VIIth Additional District Judge, Karachi in F.R.A. No.466 of 2001 as the orders being illegal, unconstitutional and in deviation from the established law."

2. Brief facts of the case are that the respondent No.1 is the landlord of the building known as "Tower Mansion" constructed on Plot No.G.K. 7/99, Opp. Merewether Tower, Karachi and the petitioner is his tenant in respect of a portion admeasuring 2018 sq. ft in the said building. The monthly rent was fixed at Rs.854.25 per month. The respondent No.1 filed a rent case, bearing No.570/91, for fixation of fair rent in the year 1991 which was decided vide order dated 27-4-1995 whereby the rent was fixed at Rs.2500 per month. The respondent No.1, being dis-satisfied with the order dated 27-4-1995, challenged the same through F.R.A. No.352 of 1995 which was allowed vide Judgment dated 14-12-1999 and the case was remanded to the trial Court for decision afresh. The learned Rent Controller, after hearing the parties, again decided the rent case vide order dated 15-7-2000 and fixed the fair rent at Rs.10,000 with effect from date of institution of the rent case. The petitioner feeling aggrieved by this order, challenged the same through an appeal before the VII Additional District Judge, Karachi (South) who dismissed the same vide order dated 11-2-2004 and maintained the fair rent at Rs.10,000 with effect of institution of the rent case. The petitioner has impugned this order dated 11-2-2004 through the instant petition.

3. Today, after arguing the matter at some length, the learned counsel stated that the petitioner is willing to the fixation of fair rent at Rs.10,000 per month but he states that the two Courts below have fixed the fair rent with effect from the date of institution of the rent case and prays that the petitioner is ready and willing to pay the fair rent at Rs.10,000 from the date of the order of the Appellate Court i.e. 11-2-2004. In this regard he has placed reliance on the case reported as Mst. Masuda Jawad v. State Life Insurance Corporation and another (PLD 2007 Karachi 485). In this case the tenant/petitioner did not challenge the quantum of fair rent but challenged the effective date of the same on the ground that it was the landlord itself (State Life Corporation) which delayed the disposal of the rent case. The learned Single Judge quoted the following passage from judgment in the case of Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103):-- "So far as the law is concerned, section 8 does not lay down any fetters on the power of the Rent Controller or the Appellate Authority to fix the fair rent from a particular date. It would thus follow that very wide discretion has been conferred by the law on the Rent Controller to fix the fair rent from the date of application or from the date of order and in suitable cases even from a date between the two events. The discretion vested in the Rent Controller as well as the Appellate Court is, however, not arbitrary or whimsical. Discretion in fixing the fair rent as well as the period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust. No flexible rule of law could be laid down as to date of payment of fair rent because it would depend on the facts and circumstances of each case."

4. A perusal of above quoted passage from the judgment of the apex Court would reveal that powers have been conferred on the Rent Controller and the Appellate Authority to fix the fair rent and its effective date. It is also evident that fair rent can be fixed from the date of institution of the rent case or from the date of the order or from any other date in between the two events.

5. Mr. Muhammad Zahid Khan, learned counsel for the respondent No.1/Landlord, however, stated that he has no objection if the fair rent is maintained at Rs.10,000 and the payment is made effective from the date of the judgment of the Appellate Court i.e. 11-2-2004.

6. In view of the above, this petition is admitted and is partly allowed by consent of the parties and the impugned order dated 11-2-2004 is modified to the extent that the fair rent at the rate of Rs.10,000 shall be payable from the month of February, 2004 instead of from the date of institution of the rent case. All pending applications also stand disposed. MWA/M-97/K Petition allowed.