P D 1993 Karachi 137 (PLP)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, is directed against order dated 15-9-1988 passed by the then learned IIIrd Rent Controller, Karachi, East, whereby he dismissed eviction application filed by the appellant. The facts relevant for decision of this appeal are as follows:-- Appellant Mst. Nasima Begum, on 11-3-1985, filed eviction application against respondent on the ground of default in payment of rent. Her case is that she is the owner of Flat No. 1, situate on Plot No.B-1/210, 211, Kashan-e-Nasima, Shahnawaz Bhutto Road, Soldier Bazar, Karachi, and the respondent is her tenant in said premises since 1-2-1977 on monthly rent of Rs.75. In the year 1978 the Excise and Taxation Authorities increased the tax and assessed it on the basis of Rs.40 per room. the appellant challenged said increase in tax before the Excise and Taxation Authorities and had filed the appeal No.848 of 1978, which, however, was dismissed on 22-1-1979. Consequently, on 26-6-1982, she served a notice upon respondent, asking him to pay monthly rent at the rate of Rs.120 on the basis of latest assessment carried out by the Excise and Taxation Authorities. It is alleged that respondent, in spite of receipt of above notice, failed to pay her rent at above rate from May, 1979, as such, he is a wilful defaulter. The respondent, in Written Reply, resisted the claim of appellant and maintained he had never paid rent to appellant at above rate and when the appellant refused to accept rent at the rate of Rs.75 p.m., he, having no other alternative, deposited rent in Miscellaneous R.C. No.4233 of 1979. According to him, no default in payment of rent, either before May, 1979 or thereafter, was committed by him. The appellant and respondent filed their affidavits-in-evidence and were cross-examined. It is an admitted position that rent up to April, 1979 was paid by respondent to appellant and thereafter, he deposited monthly rent at the rate of Rs.75 in Miscellaneous R.C. No.4233 of 1979. The only point involved in this matter is whether after enhancement of tax by the Excise and Taxation Authorities the appellant could unilaterally enhance the rent. It is contended on behalf of appellant that after increase in taxes by the Excise and Taxation Authorities the respondent was liable to pay rent at enhanced rate in conformity with the order dated 22-1-1979, passed by the Collector Excise and Taxation, Karachi, and since he did not pay rent at enhanced rate he was a wilful defaulter. In support of this contention, learned counsel for appellant cited (1) 1975 SCMR page No.74, Mistri Ahmed Din v. Muhammad Munir. In this case the question under consideration was whether a landlord, who was a transferee of the property, under the Displaced Persons (Compensation and Rehabilitation) Act, XXVIR of 1958, could charge rent on the basis of latest assessment by a Municipal Committee or a local authority without having recourse to the provisions of section 9 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Hon'ble Supreme Court dealing the above contention observed as follows:-- The learned Single Judge repelled the objection taken by the petitioner on the ground that the relationship between the parties is entirely governed by section 30 of 1958 Act, which, by virtue of section 36 ibid shall have overriding effect notwithstanding any other law to the contrary. The first proviso to subsection (1) of section 30 expressly makes it lawful for the transferee of the property to charge rent on the basis of the "latest assessment carried out by a Municipality or a local authority". The provisions of the section are not hedged by any further' condition that the increase in rent should also have the approval of the Rent Controller before it becomes chargeable by the landlord. In reaching that conclusion, the learned Single Judge relied upon a judgment of this Court in Ahmed Khan v. Sakina Bibi. The view taken by the learned Single Judge is unexceptionable." The principle laid down in above case is not applicable to this case. for, the reason that the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, cannot be invoked in this matter. Under section 8 of the Ordinance, the Rent Controller, on an application by a tenant or landlord, can determine fair rent of the premises' after taking into consideration the factors enumerated in said section, which included imposition of new taxes etc. As per scheme of the Ordinance, the power of determination of fair rent and increase in rent under section 9 of the Ordinance, is vested with the Rent Controller and the landlord cannot unilaterally increase rent, despite the order, if any, passed by the taxation authorities for the enhancement of the taxes. The rate of rent, as a rule, cannot remain stationary for ever, and by passage of time due to rise in cost of construction/repair charges and imposition of new taxes, reasonable increase in rent, as permissible under the law is always justified, but for this purpose the proceeding shall have to be initiated before the Rent Controller under section 8 of the Ordinance. No default was committed by the respondent. The finding of learned Rent Controller is perfectly correct and no exception can be taken to it. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs. A-A./N-461/K Appeal dismissed