2000 PLP 1306 (CLC)

(2) Whether the petitioner has no cause of action to file this petition, in view of the terms and conditions of rent/lease deed executed among the parties? OPR (3) Relief. The learned Rent Controller accepted .the application vide order, dated 1.1‑3‑1999; hence the present writ petition.

2. The petitioner's counsel submits that‑respondents application is liable to be dismissed as the respondents have not filed application under section 5‑A of the Rent Restriction Ordinance as is evident from the heading of application. The learned Rent Controller has erred in. law to convert the application filed by respondents under sections 4 and 5 into under . section 5‑A without filing any application by respondents. He, further submits that respondents are not entitled to enhance rent as respondents have received advance amounting to Rs.1,44,000; that there is no provisions mentioned in the Rent deed; that the respondents are entitled to enhance rent till the completion of six years; he further submits that respondents claimed enhancement ~of rent in prospect from the date of filing of application on 19‑3‑1997 as is evident from prayer: clause of application filed by respondents Nos. l to 3; that impugned order is passed by the Rent Controller without applying independent mind. The petitioner's counsel finally summed up his arguments that respondents No. l to 3 received Rs.1,44,000 advance and in case the aforesaid amount is deposited in the bank then the respondents got more benefit as the enhancement of rent claimed by respondents Nos. l to 3.

3. Learned counsel for. respondents Nos. l to 3 raised preliminary objection that writ petition is not maintainable as the petitioner has alternate remedy to file appeal before the learned District Judge, under section 15 of the Rent Restriction Ordinance; that petitioner filed application under sections 4 and 5 of Urhan Rent Restriction Ordinance and the learned Rent Controller was justified to convert the same under section 5‑A of the Rent Restriction Ordinance as the contents of application clearly reveal that ;a respondents have filed application under section 5‑A: it was merely typographical mistake or is mis-description of provision of law that respondents Nos.l to 3 mentioned sections. 4 and 5 in the titled of application. He relied upon Mst. Safia Bibi's case 1982 SCMR

494. He further submits that respondents are entitled to get enhanced rent from the petitioner by virtue of provisions of Urban Rent . Restriction Ordinance, 1979; that respondents submitted application before the petitioner after completion of three years but petitioner refused to accept the request of respondents and the respondents were constrained by the circumstances to file application before Rent Controller for enhancement of rent; that learned Rent Controller has given findings of fact against the petitioner after proper appreciation of evidence and this Court has no jurisdiction to substitute its own decision in place of the decision of Tribunal ‑below. In rebuttal the petitioner's counsel submits that impugned order is the result of misreading and non‑reading of record as is evident from prayer clause of application filed by respondents Nos. l to 3 under sections 4 and 5; that the learned Rent Controller granted the relief beyond the relief claimed by respondents Nos. l to 3, therefore, impugned order is not sustainable in the eyes of law and is liable to be dismissed.

4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. The contention of petitioner's counsel that respondents have filed application under sections 4 and 5 of the Urban Rent Restriction Ordinance, 1979, the learned Rent Controller has no authority to convert the same and grant the relief to respondents under section 5‑A of the aforesaid Ordinance, has no force as it is merely a misdescription or mentioning of wrong provisions of law as per principle laid down by the Honourable Supreme Court in Mst. Safia Begum's 1982 C SCMR 494 and relevant observation is as follows‑ "Mention of wrong provision of law in application would not deprive the Court of power and jurisdiction otherwise available under law." Similar second contention of petitioner's counsel has also no force as rent deed was executed between the petitioner and respondents Nos. l to 3 for six years; respondents have received advance rent Rs.1,44,000, therefore, respondents have no right to claim enhancement of rent after three years by virtue of section 5‑A of the aforesaid Ordinance. It is pertinent to mention here that rent deed does not contain any provisions to debar the respondents to ,claim enhanced rent from the t petitioner till the expiry of terms of six years originally agreed between the parties. The rent deed was executed between the parties on 3‑6‑1991, Section 5‑A was added by Act No.3. of 1991 w.e.:. 6‑3‑1991. It is better and appropriate to reproduce section 5‑A of the aforesaid Ordinance to resolve the controversy between the parties:‑ "5‑A Increase of rent of non‑residential buildings.‑‑ (1) The rent of a non‑residential building shall stand automatically increased at the end of every three years of its tenancy by twenty five per cent of the rent already being paid by the tenant. (2) The first increase under subsection (1) shall accrue (i) on the first day of July, 1989 in the case of tenancy existing for three years or more preceding that date; and . (ii) on the completion of three years of tenancy, in the case of tenancy which has not been existing for three years on the first day of July, 1989. (3) Where during the period of three years, in case mentioned in subsection (2): .. (i) ‑ the rent has already been increased by an amount less than twenty five per cent of the total rent, the amount of such increase shall be deducted from the increase under subsection (1); and (ii) if the rent has already been increased by an amount equal to or more than twenty five per cent of the total rent, no increase under subsection (i) shall accrue until the expiry of three yeas from the date of such increase. (4) The arrears becoming due as a result of the increase of rent under this section shall, unless paid earlier be deemed to be rent due under clause (i) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restrictions (Amendment) Ordinance, 1990 (XII of 1990) (5) All proceedings arising from the provisions of sections 4 and 5, in respect of a non‑residential a building and pending before the "Controller or the Appellate Authority or any Court shall abate. (6) The provisions of subsections (1) to (5) shall not apply if a landlord and a tenant agree to increase the rent by an agreement in writing executed before the Controller." Mere reading of the aforesaid provisions of law clearly reveals that Legislature has provided that enhancement is automatic. Even otherwise the rate of enhancement, the dates from which it is due as well as by which it is payable have since been made part of the statute and nothing is left to be done by the parties, therefore, the increase in the rent would come effective automatically and the tenant is under obligation to pay the rent at the revised E rate and the landlord is under obligation to accept the same. It is also true that both the parties may agree to another rate but in that case it is condition precedent that the Agreement should be executed before the Rent Controller and for that purpose' no notice was required. The object was to exclude the possibility of false plea of Agreement at a rate less than 25 % . Arriving to this conclusion I am fortified by Haji Muhammad Ibrahim's case PLD 1996 Lah.

308. The rent deed was executed as mentioned. above between the parties for six years on 3‑6‑1991 and section 5‑A (supra) was added w.e.f. 16‑3‑1991, therefore, any terms of rent deed in violation of aforesaid provisions of law is void. It is pertinent to mention here that there is no provision in the rent deed to debar the respondents to invoke the statutory provision to increase the rent. The learned Rent Controller after proper appreciation of evidence has given finding of fact in the following terms:‑‑ "In view of above discussion, the respondents are directed to tender/pay rent‑at the rate of Rs.7,500 p.m. including 25% increase of rent under section 5‑A, P.U.R.R.O. since the month of June 19.94 to May, 1997 and Rs.9,300 p.m. w.e.f. June, 1997 to February, 1999. Since the petitioner has not claimed any arrears of rent, at the basic rate of rent, therefore, the respondent is directed to tender rent Rs.1,500 p.m. w:e.f. June, 1994 to May, 1997 and Rs.3,000 p.m. w.e.f. June, 1997 to February, 1999 total being Rs.14,000, being less amount tendered/paid by the respondent. The respondent is also directed to keep on depositing future rent at the F rate of Rs.9,300 p.m. w.e.f. March, 1999 and onward till future increase falls due, respective date i.e. on completion of period of three years." This Court has no jurisdiction to substitute its own decision in place of the decision of finding of the Tribunal below in Constitutional jurisdiction as per Rule laid down by the Division Bench of this Court in Mussadaq's case PLD 1973 SC

600. In view of what has been discussed above, there is no merits in this petition and the same is dismissed with no order as to costs. H.B.T./U‑2/L Petition dismissed.