P L D 2025 Sindh 323 (PLP)

SHAMSUDDIN ABBASI, J.

The captioned constitutional petitions filed under Article 199 of the Constitution of Islamic of Pakistan, 1973, challenging the concurrent findings of the two Courts below, whereby both the Courts have increased the fair of the rented shops from Rs.500/- to Rs.25,000/- per month from the date of filing of rent application under Section 8 of the Sindh Rented Premises Ordinance, 1979 (the "Ordinance").

2. In all seven applications under Section 8 of the Sindh Rented Premises Ordinance, 1979, vide Rent Case No.402, Rent Case No.403, Rent Case No.404, Rent Case No.405, Rent Case No.406 and Rent Case No.407 of 2019 were filed by respondent (applicant) against respective tenants (petitioners) praying to fix the fair rent @ Rs.30,000/- per month each claiming the prevailing in the market. The petitioners (tenants) appeared and filed their respective written statements denying the relationship of landlord and tenant between the parties and submitted that they have acquired the shops/premises on payment of goodwill ("Pagree") long before and regularly depositing rent in MRCs on refusal to receive by the respondent (landlord). The parties adduced evidence in support of their pleadings. The learned Rent Controller-IX. Karachi (Central), after recording the evidence and hearing the parties' respective counsel allowed rent applications vide separate orders dated 20.04.2022 and fixed the fair rent @ Rs.25,000 per month instead of Rs.30,000/- per month. Against the said orders of the learned Rent Controller, the petitioners (tenants) preferred their respective appeals, which were dismissed vide separate judgments dated 08.09.2022 by the learned Additional District Judge-IV (MCAC), Karachi (Central). Being aggrieved by the orders/judgments of the learned two Courts below, the petitioners have filed present petitions.

3. Since the issue involved in all the petitions is common pertaining to enhancement of the fair rent of shops situated in the same building (plot), therefore, it will be appropriate to take up and decide all the petitions together by this common judgment.

4. It is contended on behalf of the petitioners that rent applications were not filed by an authorized person. who too has failed to prove the relationship of landlord and tenant between the parties as such the applications for fixation of fair rent were not maintainable and ought to have been dismissed. It is next submitted that the petitioners have acquired the rented premises after payment of goodwill ("Pagree") and they are continuously depositing the rent in MRCs after the same was refused by the landlord, but both the learned Courts below have failed to consider this aspect of the matter and arrived at a wrong conclusion while allowing the applications under Section 8 of the Ordinance. It is also submitted that the learned Rent Controller while fixing the fair rent has failed to appreciate that respondent (landlord) has neither examined tenants nor any of the attesting witness of rent agreements, exhibited in evidence, which is a clear violation of Articles 75 and 76 of the Qanun-e-Shahadat Order, 1984. Per learned counsel, both the learned Courts below while passing the impugned orders/judgments have extended undue favour to the respondent without applying judicial mind and based their findings on misreading and non-reading of evidence and arrived at a wrong conclusion in fixing the fair rent @ Rs.25,000/- each, hence the same are not sustainable in the eyes of law and liable to be set-aside. The learned counsel for the petitioners has placed reliance on the cases of Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 Supreme Court 604), Mohiuddin Ansari v. Muhammad Arif Siddiqui (1991 CLC 72), Hyderabad Development Authority v. Abdul Majeed and others (PLD 2022 Supreme Court 84), Messrs Abdul Majeed Chawla & Sons v. Anwar Yahya (1990 MLD 1711), Abdul Rehman and another v. Zia ul Haque Makhdoom and others (2012 SCMR 954) and Messrs Olympa Shipping and Weaving Mills Ltd and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103).

5. On the other hand, the learned counsel for the respondent (landlord) while controverting the submissions of learned counsel for the petitioners has submitted that the petitioners agitated the ground of relationship of landlord and tenant just to save themselves from payment of rent at the enhanced rate prevailing in the market, otherwise they have failed to place on record any valid and tangible evidence in support of their plea. It is next submitted that impugned orders/judgment are based on fair evaluation of evidence and documents brought on record. Per learned counsel, both the learned Courts below have acted in accordance with law and passed the impugned orders/judgments keeping in view the facts and circumstances of the case, the prevailing rent in the vicinity as well as applicable law, hence calls for no interference and the petitions merit dismissal.

6. The learned AAG has supported the impugned orders/judgments of the learned two Courts below being based on sound reasoning in line with peculiar facts and circumstances of the case and relevant law, and according to him no illegality or material irregularity has been pointed out to have a different view, hence no case for interference was made out. In support of his submissions, he has placed reliance on the cases of Messrs Noori Trading Corporation (Put) Ltd v. Abdul Ghafoor (1997 CLC 205), Muhammad Anwar v. Mir Rafique Ahmed Talpur and 2 others (2014 MLD 23), Lt. Col. (R) Muhammad Zubair v. Mst. Sughran Begum and another (2023 CLC 1411), Syed Tazeeb and others v. Bashir Ahmed (2024 YLR 926) and an unreported judgment passed by this Court in Const. Petition No.S-251 of 2009 (Mst. Amina Bai and others v. Mirza Subhan Baig and others).

7. I have examined the record with the assistance of the counsel for the respective parties.

8. The relationship of landlord and tenant between the parties has been denied. The petitioners have claimed that rent applications filed by Anjuman Jama Masjid (registered) through its General Secretary without filing Memorandum of Article of Trust or Association were not maintainable and ought to have been dismissed. As to the contention that General Secretary, Jama Masjid was not an authorized person to file rent applications, suffice to observe that respondent has produced in evidence a resolution passed in the meeting of General Body authorizing Mukhtar Ahmed son of Khan Malik to sue any legal or administrative proceedings before a Court of law or Administrative/Authority. The record is also suggestive of the fact that the parties entered into a tenancy agreement. which was signed by General Secretary of Jama Masjid, hence the contention that rent applications were filed by an unauthorized person is irrelevant and unsafe to rely upon. As to the relationship of landlord and tenant between the parties is concerned, it is noteworthy that the petitioners during trial neither disclosed the name of the person (landlord) who let out the rented premises to them nor produced any evidence or material to rebut the claim of respondent as to landlord of the rented shops. On the contrary, they have admitted in cross-examination that they are depositing rent in MRC in the name of General Secretary Jama Masjid. In such a backdrop and clear admission on the part of petitioners, it stands proved that there exist relationship of landlord between the parties. Moreover, it is a well settled that ownership ma not always be a determining factor to establish the relationship of landlord and tenant between the parties and in normal circumstances, in the absence of any evidence to the contrary, the owner of the property by virtue of his/ her title is presumed to be the landlord and the person in possession of the premises is considered as a tenant Article 115 of the Qanun-e-Shahadat Order lays down that when there is continuance of tenancy, the tenant cannot deny the title of landlord in respect of an immovable property which the landlord had at the beginning of tenancy. It is also a well settled that when a person inducted in the premises as tenant, he has no locus standi to challenge tenancy merely on the ground that the person who inducted him as tenant is not the actual owner. I am, thus, of the view that rent applications were filed by a competent person and the contention that the same were not maintainable is not legally correct. The learned Rent Controller has rightly discarded the pleas of the petitioners challenging the maintainability of rent applications by an unauthorized person as well as relationship of landlord and tenant between the parties. The findings given by the learned Rent Controller has been affirmed by the learned Appellate Court observing as under:- "I have considered the submissions of learned counsel for the respective parties, perused the impugned order and R & Ps shows that as "The learned counsel for the applicant pointed out that though the opponent had denied the applicant's status as landlord of the rented premises and denied the relationship of landlord and tenant but the opponent in his written statement and affidavit-in-evidence did not disclose as to who is his landlord is there is admission on the part of opponent as to the status of the applicant The appellant/respondent has produced rent agreement during his evidence. Perusal of contents of rent agreement shows that tenancy agreement was executed between Master Iqbal (tenant) and Jama Masjid (opponent/ appellant.

9. Insofar as the fixation of fair rent is concerned, the learned counsel for the petitioners has contended that the learned Rent Controller as well as Appellate Court were not justified in fixing the fair rent @ Rs.25,000/- per month, based on the rent agreements produced in evidence, despite of the fact that neither tenants of the said agreements were examined nor any of its attesting witness was produced in evidence, hence the same could not be made basis for fixation of fair rent in the cases of present petitioners. Before proceeding any further, it would be advantageous to reproduce Section 8 of the Ordinance, which reads as under:--

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 adjoining locality; (b) the rise in cost of construction and repair charge; (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.

10. A bare perusal of the above Section reveals that the Rent Controller has the authority under the law to fix the fair rent keeping into consideration the conditions as enshrined therein. The burden in like cases is always on the landlord to bring his case within four conditions and in case the landlord proves his case with regard to the fixation of fair rent then it is the responsibility of the Rent Controller to fix the fair rent keeping in view the aforesaid conditions mentioned in Section (supra). However, it is by now a well settled that it is not necessary for the landlord to satisfy or fulfill all four conditions while making an order under Section 8 of the Ordinance for fixation of fair rent. It has been held that upon fulfillment of even one of the aforesaid conditions the Rent Controller is competent to fix the fair rent of a premises since cumulative effect of all four conditions mentioned in the above Section, is to be kept in mind while fixing the fair rent. Reliance in this behalf may well be made to the case of Alay Javed Zaidi v. Habibullah and others (2024 SCMR 781)

11. Record demonstrates that rented shops belong to Jama Masjid and the petitioners are enjoying tenancy rights for the last more than 40 to 50 years. Undoubtedly, the premises are located in the commercial hub of Nazimabad No.4, surrounded by shops of various items, and the rent that is being paid @ Rs.250/- to Rs.500/- since 1985 through MRC No.3083 of 1985 is too meager, which has not be denied or rebutted by the petitioners before the learned Rent Controller either in their pleadings or in evidence. On the contrary, they admitted that subject tenements are in their commercial use. There is also no denial of fact that the price of the construction has increased considerably, which would infer the petitioners that the rent being paid by them could not be considered at the present time to be a fair rent. Now a question would arise that what would be the fair rent in the present case. The answer to this question is available in the four conditions given in Section 8 of the Ordinance. It is a settled principle of law that it is the exclusive domain of the Rent Controller to fix the fair rent keeping in view the above conditions which would include rent paid in similar situation in respect of the properties located in adjoining area apart from rise in cost of construction, repair charges, imposition of new taxes etc. and if the landlord is able to bring home his case with regard to the fixation of fair rent being paid by other tenants in respect of similarly placed properties, the rent paid by those tenants in the adjoining locality would be considered to be the fair rent, which in my view is the essence of Section 8 of the Ordinance. In the case in hand, the respondent (landlord) has produced two rent agreements in respect of similar shops, located on the same plot, let out to one Muhammad Imran at a monthly rent of Rs.30,000/- each, hence the contention of the learned counsel for the petitioner with regard to the increase in rent @ Rs.25,000/- per month would be of little significance when it is proved beyond any iota of doubt by the landlord by producing two rent agreements in evidence that what is the rent being paid by the other tenants in the same market in respect of similar shops. The rent agreements produced in evidence depict agreed rate of rent as Rs.30,000/-, hence in such a situation the fair rent fixed by the learned Rent Controller @ Rs.25,000/- per month and affirmed by the learned Appellate Court cannot be said to be harsh or inappropriate in view of the peculiar facts and circumstances of the case. This Court cannot ignore the fact that the petitioners are enjoying shops in commercial area since 1970 and they were depositing rent in MRC No.3083 of 1985 @ Rs.250/- to Rs.500/- per month, which is unjustified and against the prevailing conditions of rising costs of constructions, repair charges, imposition of new taxes and other factors as well. A Rent Controller while entertaining an application for fair rent keeping in view the facts and circumstances of the case can enhance rent. The Hon'ble Supreme Court in the case of Ittehad Chemicals Limited v. VIIth Additional District Judge, Karachi (South) and 2 others (2010 SCMR 1582) has maintained the orders of Courts below wherein the fair rent was fixed at Rs.80,000/- per month from Rs.8,178/- per month. In another case of Akhtar Kamran (deceased) through legal heirs v. Parvez Ahmed and others (2023 SCMR 1147) the rent was increased from Rs.11,401/- (rupees eleven thousand four hundred only) per month to Rs.97,974.47 (rupees ninety seven thousand nine hundred seventy four and forty seven paisa only) per month and while maintaining the orders of the Courts below the Hon'ble Supreme Court has observed that rise in cost of construction, repair charges, labour, taxes, etc. are the factors need not to be proved through documentary evidence and the same also cannot be ignored while determining the fair rent. The Hon'ble Supreme Court in the case of Alay Javed Zaidi v. Habibullah and others (2024 SCMR 781) has taken pain of a meager rent in respect of a commercial premises and concluded as under:-- "

19. Furthermore, since the date of commencement of tenancy (in 1974) for about last 50 years till date there has been a manifold enhancement in the cost of construction, property taxes, municipal charges and government taxes. It was the case of Respondent No.1 before the learned Rent Controller that during entire tenure of tenancy, since 1974 to 2017 (forty three years), the prices of the properties and rate of rent of commercial properties in that area have been increased exorbitantly in as much as the cost of construction, maintenance, and repairs has increased by 8000%, the taxes by 6000%, the labour charges by 1000% and the cost of land by 8000%, however, the monthly rent was no enhanced since 1974. Moreover, it has come on record that the exchange rate of US $ was equivalent to Rs. 9.9 in the year 1974, thereafter, it increased from time to time and in the year 2017, it was Rs. 105 per US $ whereas the rate of 10 gram of gold in the year 2017 was Rs.50,950/ -. Hence, the rent of Rs.3700/ - per month is very meager of the commercial property as compared to the other commercial premises in the same vicinity".

12. Insofar as the contention that relying on the two rent areements, produced in evidence by the landlord, without examining a single attesting witness, is clear violation of Article 79 of Qanun-e-Shahadat Order, 1984. This contention, on the face of it, has no force as the requirement of Article 79 of Order of 1984 comes into play and such condition is attached only with a registered document and not to a document or instrument of understanding or acknowledgement. Pertinent to note that the learned Rent Controller has fixed the fair rent keeping in view the fact that the petitioners are old tenancy and they are paying rent @ Rs.250/- to Rs.500/- only through MRC No.3083 of 1985 since 1985 in respect of shops situated in Nazimabad, which is center of Karachi located in commercial and thickly populated area as well as rent prevailing in the market in respect of other shop similar in nature with the rented shops situated in the same vicinity. This Court is cognizant of the fact that the learned Rent Controller while fixing the fair rent has taken into consideration all the instances and the rent agreements furnished by the landlord in respect of the similar premises being let out in the vicinity. Worth to mention here that proceedings before Rent Controller with regard to fixation of fair rent of premises, being quasi judicial in nature, all principles of Civil Procedure Code, 1908 and Evidence Act (Qanun-e-Shahadat) could not be invoked because Rent Controller and Appellate Authority would have powers of a Civil Court under Civil Procedure Code in respect of matters relating to Sections 19, 20 and 21 of Sindh Rented Premises Ordinance, 1979 and said Ordinance had also not placed any bar on application of Qanun-e-Shahadat, 1984 in appreciating evidence adduced by parties in rent matters. A Rent Controller though is not a Court and limited provisions of Civil Procedure Code had been made applicable in the proceedings, but there was nothing in Sindh Rented Premises Ordinance, 1979 whereby application of provisions of Qanun-e-Shahadat could be restricted or limited as the Rent Controller was not a Court. Reliance in this behalf may well be made to the case of Fateh Ali v. Trustees of Haji Sir Abdullah Haroon Wakf No.2, Karachi PLD 1996 Karachi 225, wherein it has been held as under:- "It is correct that the Rent Controller is not a Court and limited provisions of C.P.C. have been made applicable in the rent proceedings but there is nothing in the Rent Ordinance whereby the application of the provisions of Qanun-e-Shahadat could be restricted or limited as the Rent Controller is not Court. The application of Evidence Act has been held to be not applicable. Learned Judge in Chamber in Muhammad Yousaf Muhammad Hassan and 7 others 1981 CLC 1181 held: "I would, therefore, with respect relying on the opinion delivered in the case of Javaid Iqbal (1976 SCMR 229) hold that the Rent Controller was not obliged to strictly comply with the require-ments receiving copy of the sale-deed in dispute in evidence. Reference is also made to Muhammad Rasheed v. Haji Abdul Rahim and 2 others 1992 CLC 568 wherein at page 570 it was held: "Be that as it may, there cannot be any doubt that a Rent Controller is not a Court and the provisions of the Evidence Act are not applicable to the proceedings before him. Indeed, as held by Supreme Court in Khadim Mohyuddin and another v. Rehmat AU Nagra etc. PLD 1965 SC 459, the proceedings before the Rent Controller are such as are conducted before an executive officer. In Javaid lqbal v. Rana Muzaffar Khan 1976 SCMR 229 the Supreme Court ruled that Evidence Act was not applicable in terms to rent proceedings. A similar question arose before this Court in Muhammad lqbal v. Haji Taj Din 1979 CLC 554 wherein it was held that the provisions of section 145 of the Evidence Act could not be made the basis for excluding the evidence recorded in rent proceedings".

13. Even otherwise, the petitioners cannot object the two rent agreements which were produced by the 'landlord' in evidence and were exhibited by the Rent Controller without any objection from the petitioners at the time of their production in evidence. It is a settled principle of law that if a document has been produced and exhibited before a Court without any objection, the party cannot object to its proof required under the Qanun-e-Shahadat at appellate or revisional stage. The Rent Controller as well as the learned Appellate Court in the orders/judgments impugned herein, have discussed in detail the escalation in price of construction which has not been denied by the petitioners (tenants). The petitioners (tenants), on the other hand, have not furnished a single piece of evidence in their defence with regard to fair rent prevailing in the vicinity, hence in absence of any material from the petitioners' side, the rate of rent fixed by the learned Rent Controller, relying on the evidence and material produced by the respondent (landlord), and affirmed by the learned Appellate Court is within the parameters laid down in Section 8 of the Ordinance.

14. The petitioners have claimed that rented shops were obtained on the basis of goodwill ("Pagri") alleged to be paid at the time of tenancy, The term 'goodwill' is not recognized by Sindh Rented Premises Ordinance, 1979, however, the superior Courts have equalized it with term "Pagri". The plea of tenant that they had paid goodwill for premises, in no manner could succeed as a ground of defence and if for the sake of arguments, it is presumed that goodwill (Pagri) amount was paid by the petitioners even then it would not debar the respondent from seeking fixation of fair rent in respect of premises which is on meager rent other than a similar premises located in the same vicinity on higher rent. The case laws cited by the learned counsel for the petitioners, in support of their submissions, in my humble view, the facts and circumstances of the said cases are distinct and different from the present case, therefore, none of the precedents cited by the learned counsel are helpful to the petitioners.

15. Finding of facts given by the learned Rent Controller on the point of fixation of fair rent are concurred by the learned Appellate Court, therefore, in exercise of the Constitutional Jurisdiction this Court would not reappraise the evidence unless the same are proved to be perverse, based on misreading or non-reading of evidence as held in the case of Alay Javed Zaidi v. Habibullah and others (2024 SCMR 781). Even otherwise, the powers in rent matters under Constitutional Jurisdiction of this Court are limited and confined only to ascertain whether the learned Courts below have flouted the statute or failed to follow the law relating- thereto. In the case in hand, neither there is any jurisdictional error nor any perversity, illegality or infirmity in the impugned orders passed by the two Courts below. Besides, I do not see misreading or non-reading of evidence which could warrant interference of this Court. The Constitutional Petitions S-860, 861, 862, 863, 864, 865 and 866 of 2022 are, therefore, bereft of merit stand dismissed along with all pending application(s) with no order as to costs. SA/I-5/Sindh Petitions dismissed.