2013 PLP 2181 (YLR)

IRFAN SAADAT KHAN, J.

This Constitution Petition has been filed with the following prayer:-- "It is therefore humbly prayed on behalf of Petitioner that this Honourable Court may be pleased to admit this appeal for regular hearing, suspend the operation of the impugned judgment dated 17-11-2011 and order dated 11-10-2010 and after hearing the parties may be pleased to set aside the impugned judgment dated 17-11-2011 and order dated 11-10-2010 thereby dismiss the Rent Case No.827 of 2008 filed by the respondent No.1 and in the alternative remand the case back to the trial Court to decide afresh after fresh recording of the cross of the petitioner".

2. Briefly stated the facts of the case are that the respondent No.1 filed an application under section 8 of the Sindh Rented Premises Ordinance, 1979 (SRPO) for fixation of fair rent, bearing Rent Case No.827 of 2008. The matter proceeded before the Rent Controller who, thereafter, vide his order dated 11-10-2010, enhanced the rent from Rs.600 to Rs.6000 per month from the date of the filing of the rent case. Being aggrieved with the said order an appeal thereafter was filed before the Additional District Judge, Karachi Central who also, vide her order dated 17-11-2011 passed in F.R.A. No.229 of 2010, dismissed the same. Hence the instant petition.

3. The facts narrated in the rent case are that the respondent No.1 is the owner of the Property bearing No.5-E-25, Block 5, Commercial Area, Paposhnagar, Karachi which was purchased by them through a registered sale-deed dated 25-9-1996 from one Ghulam Muhammad. At the time of purchase the petitioner was already the tenant of the said shop comprising of ground portion with one shop having two shutters at the rent of Rs.600 per month vide agreement dated 21-6-1988 executed between the petitioner and the previous owner. At the time of purchase of the said premises a litigation between the previous owner and the petitioner was pending before this Court in Constitutional Petition No.S-424 of 2008. The case for fixation of fair rent however was filed by the present respondent No.1 under section 8 of the SRPO, facts whereof have already been mentioned supra.

4. Mr. Naeem Suleman, Advocate has appeared on behalf of the petitioner and submitted that the orders passed by the two Courts below are a result of misreading and non-reading of the evidence as the two Courts below have not considered the vital aspect that cross examination of the petitioner never took place, which is a legal lapse and hence the impugned order is liable to be set aside and the matter may be remanded back to the trial Court for recording cross examination of the petitioner. While elaborating his viewpoint he submitted that the respondent No.1 has failed to prove that the parameters of section 8 of SRPO are fulfilled in the instant case. He submitted that there are four ingredients of section 8, which are to be fulfilled simultaneously but in the instant case those ingredients are lacking. He further submitted that the documents produced by the witness of the respondent No.1 are forged and this aspect has not been considered. He further stated that the petitioner is paying the rent which is prevalent in the area and hence the enhancement of rent from Rs.600 to Rs.6000 per month was neither lawful nor legally justified. He further submitted that the trial Court while examining the witness Jamil Ahmed has not considered the fact that the shop occupied by the petitioner is not comparable with the shop occupied by the said witness and hence these two shops cannot be considered to be at par with each other. He submitted that the two courts below have not considered the various judgments cited before them and have dismissed the case on mere technicalities. In support of his contentions the learned counsel has relied upon the following decisions: (1) 2003 SCMR 833, Re: (Munir Khan v. Government of Pakistan and others) (2) 1992 SCMR 2439, Re: (Haji Muhammad Khan and others v. Islamic Republic of Pakistan) (3) 1994 SCMR 2115, Re: (M. Cooper and others v. State Life Insurance Corporation)

5. Mr. Hassan Imam, learned counsel for the respondent No.1, submitted that Paposhnagar is the first recognized commercial area of Pakistan established in 1954. He submitted that the petitioner is in occupation of the shop in question having two shutters only for Rs.10 per day per shutter which, by no stretch of imagination, could be considered to be the fair rent. He submitted that an application under section l of the SRPO was filed for determination of fair rent and all the ingredients of the said section have duly been fulfilled. He submitted that the two Courts below have examined all aspects of the case and have determined the fair rent at Rs.6000 per month, which though still is on the lower side, but since no appeal against the said order of the trial Court has been filed by the respondent No.1, hence he concedes that he is confining his arguments only in support of the rent fixed by the two Courts below at Rs.6000 per month. While elaborating his view point, the learned counsel submitted that the witness produced by the respondent No.1 fully supported his view point and the fair rent fixed was in accordance with rent prevalent in the area. He further submitted that cross examination of the petitioner was duly recorded which is evident from the order passed by the learned trial Court hence at this juncture it could not be said that the petitioner was not cross examined. He states that this point was also raised before the appellate Court which too repelled the same. He submitted that since concurrent findings are in his favour, therefore, the petition being devoid of merits is liable to be dismissed. In support of his above contentions the learned counsel relied upon the following decisions: (1) 1999 CLC 205 (sic) (2) PLD 1993 Karachi 9, Re [Eastern Automobiles Ltd. v. Pakistan Natural Shipping Corporation] (3) PLD 2008 Kar. 100, Re: [Mohammad Afaq v. State Life Insurance Corporation and 2 others]

6. I have heard both the learned counsel at considerable length and have perused the record, the law and the decisions relied upon by the learned counsel for the parties.

7. It is an admitted position that the shop in question was given on rent to the petitioner at the rate of Rs.600 per month in the year 1988 by the then landlord and since then the rent has not been increased by the petitioner till date. It is also an admitted position that the prices of the items as well as taxes levied by the government have increased many a fold. It is also an admitted position that rent of any premises is to be fixed looking to the rent prevalent in the area and other factors. The trial Court, while hearing the matter, in order to do substantial justice examined witness Jamil Ahmed, who is a tenant in a nearby shop and the owner of that shop also is the respondent No.1. The said Jamil Ahmed in his deposition has stated that he is paying rent of his shop at the rate of Rs.6000 per month. He has also stated that the shops are situated in front of each other and are separated by a street only. The learned trial Court has examined other witnesses also who have confirmed that the petitioner is the tenant of the said shop. The trial Court after considering the fact that since the shop of Jamil Ahmed is situated in front of the shop in dispute, fixed the same rent as paid by Jamil Ahmed i.e. Rs.6000 per month. The appellate Court has also observed that the area occupied by the petitioner is much bigger than the area of shop occupied by Jamil Ahmed and the rent at Rs.10 per shutter per day is too low, keeping in view the prevalent rent paid by the tenants in the adjoining shops.

8. So far as the issue raised by the counsel for the petitioner that the petitioner was never cross examined by the trial Court is concerned, this is a finding of fact which could not be determined in a Constitutional Petition since the trial Court has categorically observed that the petitioner has filed his affidavit in evidence and he was cross examined by the counsel for the petitioner. Hence, so far as this contention is concerned that the petitioner was not cross examined, is found to be contrary to the record and hence the same is hereby rejected.

9. If section 8 of the SRPO is examined it would reveal that the landlord or the tenant, as the case may be, can file an application for determination of fair rent and the Rent Controller, after taking into consideration a number of factors would determine the fair rent of such premises. The Controller is under legal obligation to take into consideration necessary factors and after determination of these factors to determine the fair rent. Premises having similar area, situated in the similar premises are considered to be the best guidelines for fixing the fair rent of the premises in dispute. In case of dispute though four factors mentioned in section 8 of the SRPO are to be taken into consideration but fixation of fair rent could be considered on any of the four grounds as held in the cases of Easter Automobiles (Pvt.) Limited and Mahammad Afaq, mentioned supra.

10. If the facts of the present case are considered in juxtaposition it would be seen that the shop occupied by witness Jamil Ahmed could be considered to be at par with the premises occupied by the petitioner. It is an undeniable fact that the said Jamil Ahmed is paying rent at the rate of Rs.6000 per month. The main object of section 8 is to give fair chance to the landlord and the tenant to pay and to receive fair rent of a premises so that no one should be prejudiced. It was held in the case reported as Mst. Sadia Mateen v. Jamiyat Punjabi Saudagaran-e-Dehli 84 others (2008 CLC 1081) that "where the order passed by the two Courts below fixing fair rent were not found to be perverse, arbitrary, based on misreading or non-reading of evidence and resulting into miscarriage of justice, the High Court declined to interfere with the same in exercise of its Constitutional jurisdiction under Article 199 of the Constitution".

11. In view of what has been discussed above, I have come to the conclusion that the trial Court as well as the appellate Court have fixed the rent at Rs.6000 per month which is fair keeping in view the prevalent circumstances, the rent paid by the tenants in the vicinity and not a single evidence has been produced by the counsel for the petitioner that the rent paid by the petitioner is more than the rent of the shops situated in the adjoining area, which is similar to the shop occupied by the petitioner. The decisions relied upon by the learned counsel have been examined and are found to be distinguishable on the basis of the facts of the present petition. This Constitutional Petition is, therefore, found to be devoid of any merit and the same is hereby dismissed along with the pending application. AG/M-94/K Petition dismissed.