2001 PLP 671 (SCMR)

MIAN MUHAMMAD AJMAL, J.

This appeal, by leave of the Court, is directed against the judgment of the High Court of Sindh, Karachi dated 4-5-1.995 whereby R.F.A. No.491 of 1991 of the appellant has been dismissed.

2. Brief facts of the case are that the appellant filed an application under section 8 of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be called the Ordinance) before 'the Rent Controller/Senior Civil Judge, Karachi (South) for determination of fair rent of the rented premises stating therein that the respondent was its tenant at monthly rent of Rs.2,

200. He prayed for increase of rent by at least 200% on the ground that the rent of similar premises in the same building and in vicinity has increased by 300% and 800 % . Due to the rise of the cost of construction and repairs by 300 % the rental value has also increased by about 452 % . The respondent in its written statement stated that originally the rent of the premises was Rs.1,500 per month, which was increased to Rs.2,200 with effect from September, 1975. It denied the contents of the other paragraphs of the application. The Rent Controller, after recording evidence of the parties and hearing their learned counsel dismissed the application vide its order dated 3-11-1986. Feeling aggrieved, the appellant filed R.F.A. No.75 of 1986 before the High Court of Sindh, Karachi which was accepted vide judgment dated 11-3-1990, the order of the Rent Controller was set aside and the case was remanded to the Rent Controller for fresh adjudication after providing the parties fair and reasonable opportunity of hearing and also producing additional evidence. After remand the Rent Controller vide its order dated 23-5-1991 fixed the rent of the premises at the rate of Rs.2.00 per square feet from June, 1991. Feeling aggrieved, the-appellant filed R.F.A. No.491 of 1991 before the High Court, which has been dismissed vide judgment impugned in the petition for special leave to appeal, wherein leave was granted on 8-1-1997 to consider the following legal contentions:-- "(1) Whether the Courts below were justified in fixing the fair rent of the premises effective from 1-6-1991 while the petitioners had filed application for fixation of fair rent on 17-3-1981? (2) Whether the Courts below while fixing the fair rent under section 8 of the Sindh Rented Premises Ordinance, 1979 were bound to take into consideration the rent of similar premises situated in the same or adjoining locality or the fair rent could be fixed only after taking A into consideration the rent of other premises in the same building? (3) Whether subsection (2) of section 9 of Sindh Rented Premises Ordinance, 1979 is, to be read as an independent provision not controlled by section 8 and section 9(1) of the said Ordinance? and (4) Whether the fair rent of the premises has been fixed by the Courts below taking into consideration the factors mentioned in clauses (a) to (d) of subsection (1) of section 8 of the Ordinance?." We have heard the learned counsel for the parties quite at length and gone, through the record of the case. It would be appropriate to reproduce section 8 of the Ordinance which provides the factors for determination of fair rent: "

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 be determined or, as the case may be, revised after taking such changes into consideration. " It is manifest that under subsection (1) of the above section, the Rent Controller in determining the fair rent for the first time has to take into consideration the factors given above whereas under subsection (2) of the said section the fair rent already fixed can be revised taking into consideration the addition/improvement in the premises or additional fixtures and fittings, imposition, enhancement, reduction or withdrawal of tax or other public charges notwithstanding the provisions of section 9 of the Ordinance. The Rent Controller on acceptance of the application of the appellant fixed the rent of the premises @ Rs.2.00 per square feet from June, 1991 under clauses (a) and (c) of section 8(1) on the grounds that rents of the similar premises in the same building and in the adjoining locality were higher and that the new taxes have been imposed. During the pendency of the main application, an application under Order VI Rule 17 read with section 151, C.P.C. was filed in 1990 praying that the prayer of the main application be amended as follows: "It is, therefore, prayed that this Hon'ble Court will be pleased to determine the fair rent of the said premises by increasing the same at least by 900 % . " However, the said application was dismissed by the Controller on 17-2-1991. On appeal before the High Court by the appellant against the fixation of Rs.2.00 per square feet as fair rent, the learned Judge in Chambers concurred with the Controller by upholding his order. The evidence on the record shows that the rents of Messrs Dubai Bank and Messrs International Finance Investment Corporation Ltd., on which reliance was placed by the appellant, pertained to latter years to 1981 when the application for fair rent was filed. However, keeping in view the rent of Messrs Brook Bond Ltd., for the relevant period, the rent was fixed @ Rs.2.00 per square foot from June, 1991. Section 8 of the Ordinance has not provided the date as to when the fair rent fixed would become payable, whereas similar provision of the corresponding law prevalent in the other Provinces contained in subsection (3) of section 4 of the West Pakistan Urban Rent Restriction Ordinance, 1959 as amended, provides that the fair rent fixed under this section would be payable by the tenant from a date to be fixed by the. Controller not earlier than the date of filing of the application. Though the Rent Controller under the law has the power 3o fix any date for payment of fair rent keeping in view the circumstances of each case yet ordinarily it is payable from the date of application. Neither the Rent Controller nor the learned Appellate Authority have given any reason for fixing the date of June, 1991 for payment of the determined fair rent to the appellant whereas the application for determination of fair rent was filed- in March, 1981. The Rent Controller while determining the fair rent in 1991 excluded the documentary evidence produced by the appellant which pertained to the years beyond 1981 but the fair rent was made payable from June, 1991 which appears to be improper. In 1991 the documents relating to 1981 to 1991 could be taken into consideration and in this regard application under Order VI, Rule 17 read with section 151, C.P.C. needed favourable consideration as circumstances had changed by then and prevailing circumstances in-the locality could be taken into account or effectiveness to the fair rent should have been given from the date of application. We, therefore, modify the order of the Rent Controller and make the same effective with effect from April, 1981. The application for fair rent remained pending before the Rent Controller for more than ten years and before the High Court for about four years. In appeal, the High Court should have taken into consideration subsequent events and prevailing circumstances for fixation of fair rent to avoid multiplicity of litigation and for doing complete justice to the parties. In case of Haji Ibrahim v. S. Rehmatullah (1985 SCMR 241), it was observed that the general law is that the disputes are decided by reference to the date of the suit and the rights of the parties as then. This general rule was approved in Amina Begum v. Ghulam Dastgir (PLD 1978 .SC 220), with the exception that every Court has an inherent power to adopt methods, with a view to avoid multiplicity of proceedings, to shorten litigation to do complete justice between the parties and would grant relief according to altered circumstances in the larger interest of justice. In addition, these are the cases of the compulsive effect of a change in law affecting either the jurisdiction of the Court or the relief to be granted to the parties. It was held in the said case as follows:-- (i) ..................................................... (ii) ..................................................... (iii) The ordinary powers of a Court of appeal are to scrutinize the judgment or order under appeal by reference to facts, circumstances and record as before the Authority or Court passing the impugned order, supplemented by such further inquiry as may have been undertaken under section 15(6) of the West Pakistan Urban Rent Restriction Ordinance or under section 21(3) of the Sindh Rented Premises Ordinance, 1979 and administer the lave of the land at the date when the Appellate Court is' administering it. (iv) Exceptionally, in its discretion, the Appellate Court, may take note of and give effect to admitted or proved subsequent events in order to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according to the altered circumstances in- the larger interest of justice." As observed above the fair rent shall be operative from April, 1981, the subsequent events and circumstances in the locality, after the fixation of fair rent from the said date can be taken into consideration under section 9 of the Ordinance. Under its subsection (1) where fair rent of the premises has been fixed, no further increase thereof would be made unless three years have elapsed from the date of such fixation and under its subsection (2) the increase should not exceed 10% per annum of the existing rent. The factors on the basis, of which fair rent is fixed are not applicable for further increase in rent, under section 9 of the Ordinance, but for such increase inflation and other economic conditions can be taken into account. In order to bring the rent of the premises at .par to the prevailing rental value of the premises in the locality and keeping in view inflationary condition in the country, recourse to section 9 of the Ordinance has to be made whereby increase in rent can be made after a period of three years from the fixation of fair rent and such increase cannot be more than 10% per annum of the existing rent. The fair rent of Rs.2.00 per square foot would remain operative for three years from April, 1981 and keeping in view the changed circumstances, after three years it shall be increased by 25% and after, every three years up to April 1999 existing rent shall be increased by 25 % . This appeal is accordingly allowed in the above terms and the impugned orders of the High Court and that of the Rent Controller are modified to the extent given above. No order as to costs. Q.M.H./M.A,K./A-2/S Appeal allowed.