P L D 1993 Karachi 9 (PLP)

This appeal has been filed challenging the orders passed by the IIIrd Senior Civil Judge/Rent Controller, Karachi (South) in Rent Case No.149 of 1986. Briefly the facts are that the present respondent had filed the application under section 8 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) for fixation of fair rent of the godown premises situate in Old Rally Building Talpur Road, Karachi ad -measuring 21,000 square feet, which is in occupation of the present appellant. It is contended that the appellant was paying a monthly Tent of Rs.300 for the said godown to the present respondent, the owners of the same, whereas the other tenants in the said building were paying the rent at the rate of Rs.2 to Rs.3 per square feet. The present appellants contested the application and filed their written statement wherein it was contended that before nationalization the said building was owned by Trans-Oceanic Shipping Company of which the present opponent Hormaz P.Dalal was one of the Directors; and that the said godown was let out to him at the monthly rent of Rs.300 and this being a settled contractual rent, no question of increase in the rent would arise. He also contended that the other premises occupied by the other tenants in the same building pertain to the newly-constructed building having latest and better facilities. On these pleadings of the parties, the learned Rent Controller settled the following issues: (i) Whether Rs.300 per month of the godown in question is a fair rent? If not, what should the fair rent be? (ii) What should the order be? The respondents filed affidavit-in-evidence of one Manzoor Ali Samitio, who produced documents Eylis. A to J while Hormas P. Dalat filed his affidavit-in-evidence on behalf of the present appellant and produced the documents Exhs. 0/3 and 0/2. The learned Rent Controller after hearing the learned counsel for the parties, fixed the fair rent at Rs.1.50 per square foot for the area of 21,000 square feet. Being aggrieved, the present appellants have preferred this appeal. I have heard the learned counsel for the parties. Mr. Ahsan Zaheer Rizvi, the learned counsel for the appellant has submitted that the fixation of fair rent by the Rent Controller is not in accordance with the provisions of section 8 of the Ordinance as no evidence pertaining to similar premises in the area has been brought on record. He has further submitted that all the evidence which the Rent Controller has discussed and for which the evidence was brought on record pertains to the office premises newly constructed having all the latest amenities and facilities. He has further submitted that only two similar premises of the area which have been considered by the Rent Controller pertained to the godowns occupied by Yousuf, J. Haider and Messrs Berger Paint. He has submitted that no agreement of tenancy pertaining to Yousuf, J. Haider has been produced nor he has been examined as witness. As regards Messrs Berger Paints, the learned counsel has submitted that at the time of announcement of judgment, the present respondents produced a compromise deed and order of the Court passed in a case filed by the 'present respondents under section 8 of the Ordinance against Messrs Berger Paints. According to the learned counsel he has not been given notice of this document and, therefore, could not make his submissions on the same, Moreover, this was an increase in rent by consent and not fixation of fair rent by the Rent Controller. He has further submitted that section 8 of the Ordinance requires consideration of four factors as mentioned in. clauses (a) to (d) thereof; and that all these factors are to be taken into consideration together. He has placed reliance on the following cases:-- (i) Muhammad Shafi'Khan v. Meher Sultan 1991 CLC 351. (ii) Muhammad Jamil v, Muhammad Rahim 1987 CLC 176. (iii) Banarasi Silk Cloth Museum v. Mst. Amna Bai 1986 CLC, 1570. Mr. Rehmat Elahi, the learned counsel for the respondent repelling the above contentions of the learned counsel for the appellant has submitted that it is not necessary that all the four factors mentioned in section 8 of the Ordinance should co-exist out the fair rent can be fixed, if any of the said factors exists and requires fixation of fair rent. He has placed reliance on the following cases:-- (i) , Amanullah Khan v. Meher Elahi 1992 CLC 739. (i) Messrs Coffee Club and others v.' Pakistan National Shipping Corporation, Karachi 1991 MLD 644. (iii) Abdul Ghaffar v. Noor Jehan Malik 1987 CLC 2182. I have perused the above-cited judgments referred to by the learned counsel for the parties. In all the above cases, the principle that has been laid down is that the Rent Controller while fixing fair rent has to consider the four ingredients, mentioned in section 8 of the Ordinance. In none of the above cited cases has it been held that all the four ingredients should co-exist. A Existence of any one of the ingredients may be sufficient for fixation of fair rent if the circumstances of a particular case require the same. In the light of above principles, now I proceed to deal with the merits of the present case. In order to consider the same, it would be more appropriate to reproduce the provisions of section 8 of the Ordinance, which read as under: "

8. Fair rent.-41) 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 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 A, (d) the annual value of the premises, if any, on which property tax is relied." Mr. Rehmat Elahi, the learned counsel for the respondent has candidly conceded that no evidence has been brought on record in order to prove any rise as mentioned under clause (b) and (d) of the above-said section 8 of the Ordinance. As regards clause (c) the learned counsel for the respondent has submitted that admittedly betterment tax at the rate of 5% of the, rent has been levied which in the present circumstances would mean an increase of only Rs.15 on the prevalent rent of Rs.300. However, it is clause (a) which is the material clause in the present 'case. Now, it was incumbent on the present respondent to show as to. what was the rent of similar premises situated in similar circumstances in same or adjoining locality. From this it is pertinent that the evidence which is being brought on record pertains to "similar premises" and "similar circumstances'. The evidence that has been brought on record pertains only to office premises which cannot be said to be similar premises as that one which is occupied' by the present appellant. It is not shown if this godown also had the same amenities and facilities which the office premises, newly constructed, had., There are only two instances pertaining to godowns, in same building which have been mentioned in evidence. One of them pertains to godown occupied by Yousuf J. Haider. It is said that he is paying the rent of this godown at the rate of Rs.2 per square foot. However, neither any agreement of tenancy has been produced nor any receipt of rent has been produced to substantiate the above contention. Even this tenant has not been examined as a witness. Mere oral word of the respondents' witness would not be sufficient to support this contention. The other evidence is that of godown occupied by Messrs Berger Paints. The evidence was not brought on record earlier but at the time the matter was fixed for announcement of judgment, the respondent produced two documents and order of Rent Controller and a compromise statement between Messrs Berger Paints and the present respondents. These documents show that by a compromise the rent of the godown in occupation of Messrs Berger Paints was increased to Rs.2 per square foot per month. Mr. Ahsan Zaheer Rizvi, the learned counsel for the appellant has submitted that he had no notice of this document and could not make his submissions as regards these documents before the Rent Controller. Mr. Rehmat Elahi, the learned counsel for the respondents stated, that he is not aware if a copy of these documents was given to the other side. In these circumstances, the Rent Controller, who was to place reliance on these documents ought to have given a notice of these documents to the present appellant. In the circumstances, it would be more appropriate to remand the present case to the Rent Controller with direction to allow an opportunity to the Advocate for the present appellant to make his submissions on these documents and the legal effect of the same. Accordingly, this appeal is accepted, the order of the Rent Controller is set a . side and the case is remanded to the Rent Controller with the direction to dispose of the same within two months from the date of this order. Above are the reasons for the short order announced in Court on 24th Appeal August 1992 H.B.T.'/E-60/K accepted/Case remanded