1995 PLP 181 (MLD)

In May, 1984 respondent called upon the appellant to increase the rent by way of notice to which the latter replied that the increase in rent was under consideration. The appellant as well as other tenants called a joint meeting but the increase in the rate of rent could not be decided. They suggested fixation of fair rent by the Rent Controller. Respondent thereupon filed Rent Case No.2644 of 1984 for fixation of fair rent against six tenants in which the rent was fixed by the Controller at the rate of Rs.400 per room. This order was impugned in F:R.A. No. 275 of 1986 which was dismissed on 20‑1‑1988. From the judgment in the above R.F.A. Civil Petition for Leave to Appeal No. 180‑K of 1988 was preferred in which Leave to Appeal was refused vide order dated 8‑2‑1.989. Respondent pleaded that rent of similar accommodation in the same building was Rs.500 per room per month. According to him as many as 17 tenants out of 20 tenants were paying him the rents at the rate of Rs.400 per room per month. Besides he urged that the cost of construction as well as the repairs of maintenance charges had increased manifold. In his written statement, appellant contested the prayer by stating that he was not party to F.RA No. 275 of 1986, therefore he was not bound by the judgment passed in the said appeal. He denied all other allegations including the fact that rent of similar accommodation in the similar area was Rs.5010 per month per room. In support of his case, respondent appeared as his witness while the appellant examined himself on oath. Upon consideration‑ of the evidence on record and taking into consideration, the judgment passed in F.RA No. 275 of 1986 the learned Controller fixed fair rent at the rate of Rs.400 per room per month vide order impugned in this appeal. Learned counsel for the appellant has seriously contended that the learned Controller was influenced by the judgment passed in F.R.A. referred to above to which his client was not a party. Be that as it may, the Controller has also taken into consideration the accommodation in possession of the appellant and all other attending circumstances warranting the increase and fixation of fair rent in, the circumstances of the case. He has evaluated the evidence thoroughly and arrived at a just and fair conclusion. There appears to be no reason to upset the finding recorded by the learned Controller which is supported by evidence on record and the case‑law on the subject. Learned counsel then vehemently urged that the Controller had failed to take into consideration all the four factors mentioned in section 8 of the Ordinance which serve as guideline for the purpose of fixation of fair rent of rented premsies. For the sake of advantage and convenience, section 8 of the Ordinance may be reproduced which reads as under: ‑‑ "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 circumstance in the same or adjoining locality; (b) the rise in cost of construction and repair charges; (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 fixture 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:" Learned counsel then relied upon the judgments in the case of Haroon Akhtar and 5 others v. Mst. Khatoon Hadi (Head Note‑A), reportec in 1981 CLC 1104, in the case of Banarsi Silk Cloth Museum v. Mst. Amna Bai reported in 1986 CLC 1570, in the case of Ghulam Sarwar v. Allah Ditta and others reported in 1990 MLD 1901 and in the case of Muhammad Jamil v Muhammad Rahim (1987 CLC 176). In the, first case a learned Single Judge of this Court ruled that the determination of fair rent of premises in the same building is not binding on the tenants of similar tenement in the same building who were not party to the proceedings. There can be no cavil with this proposition of law and in fat Controller has not in the impugned judgment bound the appellant with the decision given in F.R.A. No. 275 of 1986. The second and fourth case lays down that for determination of fair rent under section s of the Ordinance Controller is bound to consider all the four factors mentioned in this section. Judgment in the case of Ghulain Sarwar v. Allah Ditta and 3 others deals with the review an order and lays down that new construction of law by superior judiciary including the Privy Council or the new exposition of law by the superior judiciary is not a sufficient cause for condoning the delay in review application filed after the prescribed period of 90 days. I am unable to see as to how this judgment is attracted in the circumstances of the present appeal. He also referred to an unreported judgment by a Single Bench of this Court in F.R.A. No. 813‑89 delivered by my learned brother Syed Abdur. Rehman, J. (as he then was) in support of his contention that while fixing fair rent of the premises all the four grounds mentioned in section 8 of the Ordinance must co‑exist and that the Controller is bound to consider all factors before fixation of the fair rent. On the other hand, learned counsel for respondent has relied upon unreported judgment in F.RA. No. 275 of 1986 delivered by my learned brother Dr. Tanzilur Rehman, J. (as he then was) in which it was laid down that it is not at all necessary that all the four grounds mentioned in section 8 should be present in each and every case invariably. This ‑view was also taken in the case of Messrs Eastern Automobiles (Pvt.) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi, reported in PLD 1993 Karachi 9 and in the case of Mst. Aqila Khatoon v. Abu Bakar Khan, reported in PLD 1987 Karachi

541. A reference may also be made to the order in Civil Petition for Leave to Appeal No. 180‑K of 1988 passed by the Supreme Court of Pakistan in which the learned Controller had taken into consideration first two factors while fixing the fair rent of the premises. While dealing with the grievance raised by learned counsel for the appellant to the effect that remaining two grounds had not been taken into consideration the Supreme Court held that in case these elements also existed in this case it would have meant a further examination of the new taxes (if any) and/or the appreciation of the annual value of the property (if any) and if that would have been so, the rent might have been further increased. Confronted with this legal proposition, learned counsel for the appellant then referred me to the judgment in the case of Abdul Hamid y. Abdul Ghani, reported in 1992 MLD 1588 which was again a judgment by a Single Judge of this Court who came to the conclusion that the order of Controller was not warranted by law as all four grounds or factors mentioned in section 8 of the Ordinance were not taken into consideration. I have gone through this judgment as well which refers to a decision of the Supreme Court of Pakistan in Civil Appeal No. 818‑K and others of 1990 in the case of Mst. Munerra Kaleemuddin and others v. Muhammad Mahboob Alam and another. After a close examination of this judgment as well as the extract from the Supreme Court Judgment referred to above cited by the appellant's counsel, and the judgments referred in earlier paragraphs I am clear in my mind in holding that under the law it is not at all necessary that all the four grounds must co‑exist in each and every case for fixation of fair rent. There may be cases in which there is no enhancement in the fixation of annual rental value by the Excise and Taxation Department or increase in taxes by a local body which would not be a ground for not fixing fair rent of the premises at the instance of one of the parties. The ratio of the decision of the Supreme Court lends support to this view which is even otherwise binding on this Court. In the present case learned Controller having taken into consideration the rent of similar rooms in the same building has arrived at a just and fair conclusion which cannot be interfered with in the exercise of appellate jurisdiction. Appeal is accordingly dismissed. H.B.T./S‑1093/K???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.