2011 SCMR 554 (PLP)

KHILJI ARIF HUSSAIN, J.

This appeal with leave of the court is directed against order dated 25-8-2009, passed in C.P. No. S-331 of 2008, by a learned Single Judge in Chambers of High Court of Sindh at Karachi. whereby the judgments and orders passed the learned Rent Controller and the appellate Court were set aside.

2. Brief facts necessary to decide the present appeal are that the appellant filed an application under section 8 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance') with the prayer to fix the fair rent of the premises at the rate of Rs.9,000 per month, excluding electricity and other charges, with effect from the date of filing of the application viz. 11-8-2003. After recording .the evidence, the learned Rent Controller, vide his order dated 28-4-2005 fixed the fair rent @ 10% increase in the existing rent from the date of filing the rent application. Both the landlord and the tenant filed separate appeals challenging the said order, which were dismissed by the learned VTH Additional District Judge, Karachi Central vide order dated 15-4-2008, while maintaining the order of the learned Rent Controller for enhancement of rent @ 10% increase in the existing rent, being just and proper. The respondent No.1, being aggrieved, challenged the said order before High Court of Sindh, Karachi, by filing Constitution Petition No. S-331 of 2008. The learned Single Judge in Chambers of the High Court of Sindh at Karachi accepted the petition and set aside the orders passed by the learned Rent Controller and the appellate Court. Hence, this appeal.

3. Mr. Iftikhar Javed Qazi, learned Advocate Supreme Court, representing the appellant has argued that even if there was any agreement between the landlord and the tenant not to increase the rent, the said agreement is in conflict with section 8 of the Ordinance and the High Court committed an error of law in non-suiting the appellant on this ground. He has further argued that the property in question was let out to the respondent No.1 some time in the year 1991 at the monthly rent of Rs.3,350, whereas the appellant filed the application under section 8 of the Ordinance for fixation of fair rent in the year 2003 i.e. after about 12 years of letting out the property and the learned Rent Controller after taking into consideration the evidence and the material available on record rightly fixed the fair rent at the rate of 10% increase in the existing rent. On the other hand, respondent No.1, appearing in person, has submitted that he paid a sum of Rs.400,000 as deposit to the appellant in the year 1991 at the time of execution of the tenancy agreement with the specific understanding that the rent will not be increased in future and the amount of Rs.400,000 will be returned to him according to the market rate with profit at the time of vacating the premises. He has further submitted that the rate of rent of other premises in the same building is less than the rent being paid by him to the appellant.

4. We have considered the submissions made and minutely scanned the record of the case. From the cross-examination of the landlord/appellant, it appears that the respondent/tenant has not suggested that he cannot increase the rent for the reason that a sum of Rs.400,000 has been paid to him as deposit by the tenant. It also appears from the rent agreement that the deposit of Rs.400,000 was to be returned to the tenant/respondent by the landlord/appellant with 'park up/interest at the market rate at the time of vacating the premises and therefore, such deposit cannot put any restriction on the rights of the landlord to seek fixation of fair rent.

5. To determine the fair' rent, on an application filed by the landlord or tenant, is the exclusive jurisdiction of the Rent Controller and any agreement between the parties not to seek determination of fair rent cannot bar the jurisdiction of the Rent Controller, if that has not been already done. The Court would not permit one of the contracting parties to take advantage of an unusual or' onerously terms consideration, as it would deprive the other party from his legitimate rights. This Court in the case of Muhammad Yousuf v. Abdullah (PLD 1980 Supreme Court 298), while dealing with to some extent an identical clause not to seek fixation of fair rent held that said clause being illegal because it is contrary to the provisions of the Ordinance. In the case of Atta Muhammad v. Muhammad Abdullah (PLD 1971 Lahore 210), after relying upon the case of E.A. Evans v. Muhammad Ashraf (PLD 1964 Supreme Court 536) it was held that the Controller has power to determine fair rent under Section 4 of West Pakistan Rent Restriction Ordinance, 1959 despite existence of agreement stipulating amount of rent payable.

6. The discretion exercised by the learned Rent Controller and the appellate authority while increasing 10% rent after about 12 years cannot be said to be unjust to call for interference in exercise of writ jurisdiction. The High Court without giving any cogent reasons set aside the orders passed by the learned Rent Controller and affirmed by the appellate Court in exercise of writ jurisdiction by holding that the appellant has surrendered his right of fixation of fair rent against the consideration.

7. For the foregoing reasons, the instant appeal is allowed, the impugned judgment is set aside and the orders passed by the learned Rent Controller and confirmed by the appellate Court are upheld. M.H./T-2/SC Appeal allowed.