2010 PLP 485 (CLC)

SHAHID ANWAR BAJWA, J.

Present petitioner filed application under section 8 of the Sindh Rented Premises Ordinance, 1979. Present petitioner is tenant. It was pleaded in the application that opponent was landlord of Plot No.LR No.5/27/5 tenement No.12-B situated at Lawrence Quarters, Karachi. It was let out by the opponent to mother of the applicant in 1988 or thereabout at an agreed rate of rent of Rs.300 per month. It is further pleaded that at inception of tenancy opponent recovered Rs.500,000 as Pugri and that rent was enhanced from time to time and at the time of death of mother of the applicant rent was Rs.1168 per month. It was further pleaded in the application that in August, 2005 opponent compelled tenant to enhance the rent to Rs.1402 per month and it was paid at this rate till December, 2001 and the further compelled the tenant to pay rent at the enhanced rate of Rs.7076 per month. Consequently, an application for determination of fair rent at Rs.1402 per month was filed. Written statement was filed by the opponent. It was pleaded in the written statement that all increases in the rent were by consent of the parties and there was no element of compulsion. It was further pleaded that tenant had agreed to pay rent at the rate Rs.2 per sq.ft. for 3538 sq.ft. Evidence was led by both the sides. Rent Controller vide order dated 31-1-2003 fixed fair rent at the rate of Rs.1800 per month. Landlord filed appeal' and appellate Court vide its order dated 4-9-2006 fixed rent at Rs'.5 per sq.ft. per month. Being aggrieved by the order of appellate Court this constitution petition was filed.

2. With assistance of the learned counsel I have gone through the record. In his evidence present petitioner averred what he had stated in application under section 8 of the Sindh Rented Premises Ordinance, 1979. During his cross-examination he denied that people of locality were paying Rs.5 to Rs.10 per sq.ft. per month. He stated that he did not know as to what is rate of rent in the locality. He admitted that he knew Mohammad Hanif, who was tenant in the adjacent plot. However he denied that Mohammad Akram is tenant in the adjacent plot. He admitted that landlord was receiving rent at the rate of Rs.2 per sq.ft. per month. He denied as incorrect to say that rate of rent was Rs.5 per sq.ft. per month. When landlord appeared as witness he firstly produced two agreements stated to be signed by Mohammad Hanif. In cross-examination it was specifically suggested that two tenancy agreements with said Mohammad Hanif were fictitious documents. Other rent receipts were produced in respect of various shops in that area.

3. Learned counsel for the petitioner emphasized on legal notice sent by counsel for petitioner and according to him this legal notice was received and was not replied. Contention of learned counsel for respondent was that legal notice was never received.

4. I have considered submissions made by the learned counsel and have also gone through the record.

5. First of all legal notice. It was contended by the petitioner that legal notice was sent through registered post, copy of postal receipt is available on record. It was denied by respondent that legal notice was received by him because acknowledgement receipt was signed by one Rizwan Ahmed. In presence of postal receipt presumption under section 27 of the General Clauses Act arises in favour of sender, of the document. No doubt it is a rebuttal presumption. However, in present case respondent did not produce any evidence either postman or said Rizwan Ahmed. Therefore, it is held that legal notice was received by the respondent. However, receipt of legal notice does not mean that in the absence of reply to legal notice whatever is stated in the legal notice stands proved. It is and remains a mere contention, nothing mere.

6. Two tenancy agreements were produced by the landlord to prove that he had given premises to Mohammad Hanif on rent at the rate of Rs.5 per sq.ft. per month. In cross-examination specific suggestion was put that agreements were fictitious documents. Mohammad Hanif was not produced in evidence. Learned counsel for respondent relied upon Mukhtar-ul-Omar v. State Life Insurance and others 2009 YLR 204 in support of his contention that it was not necessary to produce the second tenant. I have gone through this judgment. District Judge in that case had held that since landlord had produced rent agreements non-production of tenant would not be material. However, reported case is silent as to whether any suggestion was made in cross-examination in respect of such agreement as has been made in the present case. Therefore, since suggestion was made in cross-examination it was essential for the s landlord to prove execution of such agreements by producing his second tenant or marginal witness. It was contended by the tenant that he was compelled to enhance rent from Rs.1168 to Rs.1402 in August, 2000 and he continued to pay at enhanced rent till September, 2001 and thereafter it was contended that when he went to pay rent landlord had a pre-prepared rent receipt of rent Rs.7076 and landlord compelled him to pay the same at that rate. Of course landlord denied this proposition. In his support the tenant did not produce any witness or in respect of pre-preparation of receipt in respect of his having been compelled to pay rent at the rate of Rs.7076. If landlord was not prepared to accept rent at the agreed rate of Rs.1402 there was nothing to restrain the tenant from sending it through money order and if such money order was refused, it could have been paid by filing MRC for depositing rent in Court. Moreover, no evidence of having been compelled has been produced by tenant beyond his fair statement. Therefore the petitioner failed to prove this aspect of his case.

7. In this case it was tenant who went to Court stating that fair rent be fixed at Rs.1402 per month and it was the tenant who stated in his application that he had been paying rent at Rs.7076 per month (albeit having been compelled). In cross-examination tenant admitted that area in his occupation is 3538 sq. ft. He also admitted that he was paying rent at the rate of Rs.2 per sq. ft. per month. Therefore, findings by the Rent Controller that fair rent is Rs.1800 per sq.ft. per month was not based on any evidence.

8. When the matter went in appeal the appellate Court failed to notice that tenant had admitted that he was paying rent at the rate of Rs.7076 per month and merely relying upon agreements with Mohammad Hanif which agreements were not proved and question alleged then to be fictitious documents was not even referred in the order of appellate Court determining fair rent of Rs.5 per sq.ft. per month. It was tenant who stated that he has been paying Rs.7076 and tenant had gone to the Court for reduction of that rent. Landlord had not filed any suit for determination of fair rent. What maximum Court should have done was to order that tenant should continue to pay rent at the rate which is admitted by the tenant in his evidence, leaving landlord at liberty to file an application for determination of fair rent, if he felt it necessary.

9. Therefore, this writ petition is accepted, orders passed by both the Courts below are set aside and application filed by the tenant before the Rent Controller is dismissed. Tenant shall continue to pay rent at the rate of Rs.7076 per month. However, landlord shall be at liberty to file application for determination of fair rent.

10. Constitution Petition No. S-543 of 2006 is allowed in the above terms. S.A.K./M-2/K Petition accepted.