1982 PLP 1584 (CLC)

This is a second appeal against the orders dated 23rd August, 1976 and 21st October, 1975 passed by the learned and Rent Controller at Karachi and the learned IlIrd Additional District Judge at Karachi respectively in Rent Case No. 368/71 and Rent Appeal No. 397/76, respectively. The brief facts leading to the filing of the above appeal are that the Respondents filed above Rent Case No. 368/71 for reconstruction of the building under section 13 (3) of the late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). The above application was compromised. It was agreed by the Respon dents to give an area of 240 Sq. ft. in the proposed new building on the ground floor to the appellants. It seems that after the reconstruction of the building, the appellants were put into possession according to the finding of the learned Rent Controller two shops, measuring 240 sq. ft. whereas according to the appellants the area in their possession is less than 240 sq. ft. Be that as it may, since there is a concurrent finding of the two Courts on the question of the area the above controversy has no significance for the purpose of this appeal. It further seems that after the appellants were put into possession they filed a Miscellaneous Application under section 13 (5‑B) of the Ordinance in the aforesaid rent case for determination of rent under the above provision. In the above application, the respondents/applicants had examined Hatim Bhoy Exh. P/l, Muqeem Khan Exh. P/4 and Saleem Exh. P/6, whereas the appellants/opponents examined Muhammad Kamil Exh. O/1, Tahir Mahmood Exh. O/3 and Muhammad Younus Exh. O/5. It may be observed that the Respondents demanded the rent for the above new tenement at the rate of Rs. 180 per month, whereas the appellants contended that the rent should be old rent, namely, Rs. 55.81 p.m. On the basis' of the above evidence, the learned Rent Controller concluded that reasonable rent would be at the rate of 65 paisa per sq. ft. He accordingly fixed Rs. 156 p.m. as rent on the above basis. The appellants being aggrieved by the above order bad filed the aforesaid Rent Appeal No. 397/76, which was dismissed by the learned District Judge through his aforesaid order dated 21st October, 1976. The appellants being aggrieved by the above two orders have filed the present Appeal. 2. (a) In support of the above appeal it has been urged by Mr. Qutubuddin, learned counsel for the appellants that the learned Rent Controller erred in fixing the rent on the basis of the formulae provided under section 4 of the Ordinance instead of fixing the rent on the basis of the rent prevalent in the locality for the same accommodation. On the other hand, it has been urged by the learned counsel for the respondents Mr. Fazal Bhoy that the appeal is incompetence as no appeal was competent against an order passed by the Rent Controller under section 13 (5‑B) of the Ordinance. His second submission was that even otherwise on merits no interference is called for with the concurrent finding of fact by the two Courts below which is based on the evidence on record, (b) Reverting to the above contention of Mr. Qutubuddin learned counsel for the appellants, that the learned Rent Controller has determined the rent on the basis of formulae provided for in section 4 and not in terms of section 13 (5‑B) of the Ordinance, it may be pertinent to observe that section 4 (2) provides the factors, which area to be taken into consideration while determining fair rent in terms of the above section. Clause (c) to subsection (2) of section 4 provides rental value of the building or rented land if entered in the property tax assessment register of a municipal corporation, municipality, municipal Committee, a town committee, or a notified area committee as the case may, a factor to be taken into con sideration, whereas section 13 (5‑B) provides that the Rent Controller will determine the rent on the basis of rent of similar accommodations in ‑the locality. In my view the learned Rent Controller has not committed any error in taking into consideration the assessment of annual rental made by Excise and Taxation Department under the Immovable Property Tax Act, while determining rent under section 13 (5‑B). Since the finding of the two courts on the question of rate is in accord with the evidence on record, it cannot be said to be perverse, I am not inclined to interfere with the above finding. (c) Reverting to the contention of Mr. Fazal Bhoy that the first appeal as well as the second appeal were not competent as the order of the learned Rent Controller was passed under section 13 (5‑B) of the Ordi nance in a miscellaneous application in a matter, which had already been disposed of. I am unable to subscribe to the above contention as I am C inclined to hold that an order passed by the Rent Controller under section 13 (5‑B) is a final order for the purpose determining the liability of the tenant to pay rent in respect of re‑constructed tenement, and, therefore, is appealable order. If I were to accept the above contention of the learned counsel for the respondents, it would result into miscarriage of justice instead of fostering justice in as much as a tenant will have no remedy against the fixation of arbitrary/exorbitant rent by the Rent Controller as a suit will also not be competent.

3. Since I am maintaining the concurrent finding of fact on merits, the above appeal does not merit and, therefore, it is dismissed with no order as to costs. K.M.A. Appeal dismissed.