1997 PLP 205 (CLC)

(d) the annual value, of the premises, if any on which property tax is levied."

4. The respondent filed his affidavit‑in‑evidence, while Haroon Naviwala an Assistant Manager filed his affidavit‑in‑evidence on behalf of the appellants. Both were cross‑examined.

5. The respondent in his affidavit stated that he and his partner had purchased said premises in the name of Sindh Construction Co. He mentioned that in December, 1974, he and his partner agreed to sell said property to one Abdul Qadir and had asked the appellants to pay rent to him (Abdul Qadir). The sale, however, was not finalised and said premises continued to be the property of respondent and his partner. It is alleged that later on his partner surrendered all his rights in said property to the respondent, as such, the latter became its sole and absolute owner. The respondent has maintained that initially the property being evacuee its rent at Rs.200 p.m. was fixed nearly two decades ago. It is said that the demised premises is within the heart of Karachi Commercial area, and the branches of National Bank of Pakistan. Muslim Commercial Bank, Habib Bank Limited, UBL, are near the premises and less than a mile away from it are the premises of all the new established banks, cotton exchange, grain exchange, stock exchange, city railway station head offices of all nationalised banks, State Bank of Pakistan, and other commercial institutions. The respondent has claimed that according to the notification issued by the Sindh Government under section 27‑A of the Stamp Act the premises falls within "first category, " and the minimum value per sq. yard for stamp duty is Rs.3,402, and if its value is calculated at above rate its minimum value would come to Rs.14,89,225.50 although its market value is over Rs.50.00,

000. It is alleged that cost of construction and repair charges have increased more than ten times during the last two decades, and the price of cement bag in the year 1973 was Rs.9 while, now, it is Rs.110. The iron/steel was Rs.2,000 per ton., while now it is Rs..12,000 per ton. Likewise, Bajri truck was of Rs.200 and now it is Rs.1,

000. The respondent has stated that since 1973 the Government has imposed new taxes, increased the rate of existing taxes, the property tax has been doubled, and has also imposed betterment, water, and sewerage taxes. The respondent has claimed the present rent of the premises shall be at least Rs.10,4.66.25 p.m.

6. The appellant's witness Haroon Naviwala in his affidavit has mostly reiterated the pleas raised in the written reply and laid stress on the point that the respondent has taken only one ground in the application as such, the evidence led on other grounds could not be taken into consideration.

7. From the pleadings of the parties, learned Rent Controller had settled the following issues: (1) Whether the applicant is owner of property in question? (2) Whether the present rate of rent is not fair and just? If so, what should be fair rent? (3) What should the order be?

8. On assessment of evidence brought on record, learned Rent Controller decided these issues in favour of the respondent and fixed fair rent at Rs.4,000 p.m. by the order, which has been impugned in this appeal.

9. It is contended on behalf of the appellants that the respondent had pleaded only one ground in the application, which was about the prevailing rates of rent in the adjoining areas, as such, no other ground could be considered by learned Rent Controller, while fixing the fair rent of the premises. In support of this contention Mr. Suleman Kassim learned counsel for the appellants cited (1) Darul Uloom Naimia Trust v. Munir Ahmad 1984 CLC 3483, (2) Hakim Ali v. Muhammad Saleem and another 1992 SCMR 46, (3) Muhammad Riaz v. Mst. Sakina and another PLD 1993 Lah. 60.

10. In the case of Darul Uloom Naimia Trust eviction of the respondent was sought on the ground that Trust intended to run a Madrassa in the premises to impart religious education to the children of the area. The application of the Trust was dismissed by the learned Rent Controller and in appeal learned Single Judge of this Court observed that the tenant had not taken the plea in written reply, which, in fact, was advanced at the later stage. Under the circumstances, it was concluded that no amount of evidence could be looked into in respect of such plea. It will be noted that completely a new ground was agitated and it being so such evidence was not taken into consideration.

11. Dictum laid down in Hakim Ali's case has heavily been relied upon by learned counsel for the appellants. In this case, the only averment made with regard to the terms and conditions of tenancy in the eviction application was that the tenants at the time of their induction as such had paid in advance the rent of the premises and the landlord issued rent receipt for it. On the strength of the above facts, it was pleaded on behalf of the landlord that the tenants were bound to pay rent before the 5th of every month. The tenant denied to have entered into agreement with the landlord to pay rent before the 5th of every month. Under these circumstances, the question before the Court was that whether terms printed on the back of rent receipt constituted the terms of the tenancy. Having taken into consideration the circumstances of the case, it was observed by the Hon'ble Supreme Court that "indeed the appellant became wiser when he filed affidavit in which he stated that the respondents were inducted as tenant in terms of conditions printed on the back of rent receipt but this evidence in absence of pleading to that effect cannot be looked into". Under the above circumstances, the plea not taken in the application was not considered.

12. In Muhammad Riaz's case plea of adverse possession was not taken in the pleadings and in this connection it was observed that there could be no doubt that a question of fact which was not pleaded could become capable of being proved through evidence.

13. The facts of the above three reported cases are distinguishable and the principles laid down therein are not attracted to the circumstances of this case. As will be shown later on, the respondent though in the application only stated about the factor that the rent of similar premises was much higher, but in his affidavit‑in‑evidence he stated about the other factors also. These proceedings being quasi‑judicial in nature all the principles of C.P.C. and Evidence Act can not be invoked, though general principles may be applied. In the case of Abdul Majeed v. Syed Zahir Ali Shah and others PLD 1985 SC 191 it has been observed by the Hon'ble Supreme Court that proceedings before Controller are not to be frustrated by mere formalism because in deciding such cases only requirement for Rent Controller is to ensure that no party is prejudiced by procedure adopted by the Controller and each party is afforded a fair opportunity to present his point of view.

14. The case of the respondent was clearly known to the appellants. It was only for fixation of fair rent and all the grounds in support thereof were given in the application and the affidavit. The appellants had filed their affidavit after going through the affidavit of the respondent. In fact, the appellants had cross‑examined the respondent on all tire facts mentioned in his affidavit. Neither the appellants were taken by surprise nor any prejudice was caused to them.

15. Learned counsel for the appellants next argued that for fixing fair rent it was necessary that all the four grounds/factors of section 8 of the Ordinance were to be considered simultaneously, but in this case the application was filed only on ground (a) and in the absence of grounds (b), (c) and (d) learned Controller was not competent to fix the fair rent. In support of this contention, he relied upon (1) Banarsi Silk Cloth Museum v. Mst. Amna Bai 1986 CLC 1570, (2) Abdul Ghafoor and another v. Mst. Noor Jehan Malik 1988 SCMR 1410 and (3) Abdul Hameed v. Abdul Ghani 1992 MLD 1588.

16. In the Banarsi Silk Cloth Museum's case it was observed by Saleem Akhtar, J. (now a Judge of the Hon'ble Supreme Court) that it was incumbent on Rent Controller to take into consideration all four factors specified in section 8 of the Ordinance. Further, it was observed that landlord should produce evidence to bring his case within four corners of this provision, but it does not mean that if landlord fails to brine evidence regarding any one of the requirement of section 8 the application could be rejected. In case of Abdul Ghafoor Leave to Appeal was granted with an observation that in the impugned judgment clauses (a), (b) were not ignored, but clauses (c) and (d) were not given due attention.

17. In case of Abdul Hameed the view taken was that for fixing fair rent of premises all four grounds/factors should be considered. It is pertinent to point out that in this case reliance was placed on a decision of the Supreme Court dated 6‑6‑1991 in C.A. No. 818‑K of 1990 (Mst. Munira Kalimuddin and others v. Muhammad Mahboob Alam and another). Para. 6 of the Supreme Court quoted in this matter is as follows: "In the present case, we have noticed that the learned Rent Controller solely determined the question of fair rent on the basis of the alleged prevalent rent, which was not warranted by law. In this regard -reference may be made to the case of Banarsi Silk Cloth v. Mst. Amna Bai 1986 CLC 1570, wherein one of us." (Saleem Akhtar, J.‑‑), has held that it is incumbent on the Rent Controller to take into consideration all the four factors specified in section 8 of the Ordinance. However, we may observe that the failure of the landlord to bring on record material in respect of any of the above four elements to show increase, would not necessarily lead to the rejection of an application, but it may affect the quantum of fair rent.

18. As against above the respondent cited (1) Mst. Aqila Khatoon v. Abu Bakar Khan PLD 1987 Kar. 541, (2) M/s. Abdul Majeed Chawala and Sons v. Anwar Yahya 1990 MLD 1711, (3) Amanullah Khan v Mehar Elahi and 14 others 1992 CLC 739, (4) Mian S.M. Yousuf Baghpatee v. Fatima Bai 1993 MLD 1338, (5) State Life Insurance Corporation of Pakistan v. Pakistan National Shipping Corporation 1993 CLC 1726 and (6) Shakil Adil Zada v. S.M. Raft 1995 MLD 181 to contend that ‑all four grounds/factors were disjunctive of each other and that it was not at all necessary that all the four grounds must co‑exist in each and every case for fixation of fair rent.

19. A perusal' of section 8 of the Ordinance reveals that in case of fixation of fair rent the four factors mentioned in the section are to be taken into consideration. It is, however, not necessary that all the four factors would be available in each and every case. For example, if fair rent is claimed on the basis of rise in cost of construction and repair charges this plea would not be available in a case where repairs were not carried out. Likewise, a ground of imposition of tax after commencement of the tenancy would only be available after the new taxes were imposed. It is possible that all the four factors in a particular case may be available, but so could not be in all cases. It is pertinent to point out that in Civil Appeal No. 818‑K referred to above, the observations of Saleem Akhtar, J.‑‑‑were considered and approved, wherein it was laid down that failure of the landlord to bring on record material evidence in respect of any of the four elements to show increase would not necessarily lead to the rejection of the application, but it may effect the quantum of fair rent. Thus, it is evident from above observation that application on any of the ground could be considered, though in such case the quantum of fair rent may be affected.

20. Accordingly, I hold that the application of the respondent could not be thrown away simply for the reason that only one factor was pleaded in it.

21. Learned counsel for the appellants next argued that the respondent himself had written a letter to the appellant that he had sold the premises to one Abdul Qadir and had directed them to pay rent to him, as such, it is doubtful if he is still the owner thereof. He submitted that the respondent first should get his title cleared by the concerned Civil Court. Above contention is also without any force. The appellants' witness has admitted that property is owned by Sindh Construction Company. It is established from record that the respondent is owner/proprietor of said Company. It is also an admitted position that said Abdul Qadir had refused to accept rent from the very beginning from the appellants. Nobody has disputed the title of the respondent nor approached the appellants for paying rent to him. It being so, the question of filing suit for getting the title cleared does not arise. The tenant has no locus standi to challenge the title of the landlord particularly when it is disputed by anybody.

22. Learned counsel for the appellants also contended that the premises being the property of Sindh Construction, as such only said Company could approach the Rent Controller and not the respondent. Sindh Construction Company is a trade name and its owner is the respondent. A person carrying business in a name or style other than his own name may be sued in such name, but he himself cannot sue as such and he has to sue in his personal name. Therefore, this contention is also without any force.

23. In the last, learned counsel for the appellants submitted that in any case the amount of rent could not be enhanced from Rs.200 to Rs.4,000 p.m. It is noted that the respondent in the application clearly mentioned that the area of the premises is 3939.75 sq. yds. In his affidavit‑in‑evidence he has given details of this area, which consists of entrance and four halls. The appellants though denied the area as such, but they themselves have not said anything about its area. It cannot be conceived that though they are in possession of the premises for over 25 years, yet, they do not .know its exact area. In fact, they have deliberately remained evasive on this point.

24. The respondent on oath stated that the rent of similar premises in the similar/adjoining locality is about Rs.5 per sq. ft. and in any case it is not less than Rs.3 per sq. ft‑ to cross‑examination, this assertion of the respondent was not seriously challenged. Though the appellants have denied that the rent in vicinity is between Rs.3 to Rs.5 per sq. fts., but they themselves have not mentioned any rate of rent prevailing in the same or adjoining locality. Specific question in cross‑examination was put to the appellants' witness on this point, and he simply stated that he did not know as to what was the exact rate of rent per sq. ft. in the area. The appellants' witness stated that during the last 25 years cost of construction has not increased. It is' unbelievable. It is a matter of common knowledge that cost of construction, and repair charges have increased at least ten times since 1974 The respondent submitted that subsection (3‑Al was inserted in the Urban Immovable Property Act, 1958. imposing betterment tax at Rs.0.10 per sq. ft. Annual letting value as per Sindh Finance Act. 1975 is now 5 %, 3 % surcharge was added on taxes in the year 1973. Learned counsel for the appellants was not in a position to dispute the above assertions. The respondent submitted that the property in question may be of more than fifty lacs, but even if its value is calculated on the basis of the notification issued under section 27‑A of the Stamp Act, it comes to Rs.14,89,225.50 and for this property the appellants are paying .only Rs.200 p.m. as 'rent. Under the circumstances, the rent fixed by learned Rent Controller at Rs.4,000 p.m. is reasonable and just.

25. In consequence, I do not find any merit in this appeal, and the same is dismissed with cost. M.B.A./N.23/K Appeal dismissed.