1993 PLP 1338 (MLD)

3. The application was resisted by the respondent, according to whom, rent had already been increased by 15% which was far in excess of the sum permitted under the law. It was also denied that there had been any increase in the taxes or that rent in the locality was higher than the same received by the appellant,

4. Although the claim of the appellant that there had been increase in the taxes etc. could not be sustantiated before the learned Controller but the appellant placed reliance upon the rent receipts which had been produced by him as Annexures A and B with his affidavit‑in‑evidence which supported his claim that the tenants occupying Rooms Nos.4 and 6 were paying Rs.300 as rent per month for the said rooms which, according to the area in occupation of the said tenants, was calculated as Rs.1.66 per square foot. Against this evidence, the respondent produced evidence to show that the rent in the same locality ranged from 31 paisas to 60 paisas per square foot.

5. The learned Controller on the basis of the said evidence came to the conclusion that the case of the appellant for enhancement could not be established and therefore, he dismissed the application vide the impugned order, as pointed out earlier. The following are the reasons which appear to have. weighed with the learned Controller:‑‑‑ "On the above point, I have gone through the written statements, arguments filed by the parties' Advocates and the evidence on record. In my opinion while deciding the application under section 8 of Sindh Rented Premises Ordinance following factors are to be taken into consideration for determination of fair rent: (1) The rent of similar premises situated in the similar circumstances, in the same adjoining locality. The rise in cost of construction and repair charges. (3) The imposition of new taxes if any, after commencement of tenancy. (4) The annual value of the premises, if any, on which property tax is levied. So far as factor No.l is concerned, no documentary proof has been produced by the applicant in order to show that the rate of rent in the adjoining locality is more than the rate of rent which the opponent is paying. On the contrary attorney of the opponent has produced certain rent receipts according to which the rate of rent of the buildings situated in the same locality is about 14 paisas or 16 paisas sqr. feet. In my opinion bare word of the opponent on this point is not sufficient to be believed without documentary proof. So far second factor is concerned the applicant has himself admitted in the cross examination that he has not carried out the repairs of premises since he purchased the same. In his cross‑examination he has also deposed that he cannot give the detail about the payment of betterment tax and water tax of the building, he has further deposed that he cannot give the rental value of the building fixed by the Excise and Taxation Department. From the above evidence of the applicant it is clear that he himself is not sure about the imposition of betterment tax and the rental value of the building in question. Under these circumstances, it is clear that the applicant has failed to prove that Government has imposed betterment tax or increased the water charges of the suit building. Applicant has also failed to prove that the Excise Department has enhanced the rental value of the building. In view of my above discussions, I am of the opinion that the applicant has failed to prove the above 4 factors, therefore, he is not entitled for enhancement of rent as prayed by him. Point is answered accordingly." 6. 1 have had the advantage of hearing only Mr. Rehmat Ellahi, learned Counsel for the appellant as none has appeared on behalf of the respondent. However, after going through the record of the case and the order passed by the learned Controller, I am of the view that the same cannot be sustained. The appellant had produced evidence which indicated that the other tenants in the same building were paying rent to him at the rate of Rs.1.66 paisas per square foot. There was no evidence produced by the respondent in rebuttal thereof. No doubt, the respondent produced evidence to prove that rent for the Wilding in the same locality or adjoining localities ranged between 32 and 60 paisas per square foot but notwithstanding the same the learned Controller could not have overlooked the evidence produced by., the appellant which indicated the rate of rent which was being charged from some other tenants in the same building. Needless to point out that the Controller has been vested with jurisdiction to determine fair rent after taking into consideration various factors enumerated in clauses (a) to (d) in section 8 of the Sindh Rented Premises Ordinance. The learned Controller, therefore, has to take into consideration the rent which is being charged for similar premises situated in the similar circumstances in the same or adjoining locality besides the rise in cost of construction and repair charges. The imposition of new taxes and increase in the annual value of the premises is also to be taken into consideration. Although in the present case it could not be established that any new taxes had been imposed or there was any increase in the annual value of the premises but the appellant had clearly succeeded in establishing that rent in the same building which was being paid by some of the other tenants was at Rs.1.66 per square foot. The learned Controller was also required to lake into consideration the rise of cost of construction or repairs. Although it could not be established that any repairs had been carried out to the building by the appellant but nevertheless the rate at which the cost of construction is rising at present ought to have been taken into consideration by the learned Controller. Admittedly, the rent of Rs.130 per month which included Rs.10 as insurance charges had been fixed between 1965 and 1984. Thereafter the application had been filed before the learned Controller in 1987. This factor ought to have been considered by the learned Controller while determining fair rent. for the premises in question. Mr. Rahmat Ellahi has invited my attention to the case of Abdul Ghaffar v. Noor Jahan Malik 1987 CLC 2182 wherein a learned Single Judge of this Court while upholding the order passed by the Rent Controller had observed:‑‑‑ In my opinion, if any instance of similar premises situated in the same building is present, as it is available in the instant case, it is the best circumstance or factor which may be given due consideration for fixing the fair rent of the disputed premises:' Therefore, I fully agree with Mr. Rahmat Ellahi that the evidence produced by the appellant was sufficient to justify increase in the rent by the learned Controller. In the result, I accept this appeal and set aside‑the order passed by the learned Controller and fix fair rent for the premises at the same rate of Rs.1.66 per square foot which approximately comes to Rs.400 per month for the area in occupation of the respondent. This rent shall be payable to the appellant from the date when the application under section 8 of the Rented Premises Ordinance was filed by him before the learned Rent Controller. H.B.T./S‑952/K Appeal accepted.