2007K2510 (PLP)

MUHAMMAD SADIQ LEGHARI, J.

This Constitutional petition assails the fixation of fair rent by the Appellate Authority III-Addl. District Judge, Karachi-South at the rate of Rs.500 per square foot by judgment, dated 9-2-2005. That order was passed in the appeal filed by landlord Nazeer Ahmed against dismissal of his application for fixation of fair rent by V-Rent-Controller, Karachi-South on 30-11-2004.

2. On 26-5-2005 this Court passed order that the tenant had been paying monthly Rs.66,000 as charges for the maintenance of the furniture and Rs.88,000 as rent. By that order Commissioner was appointed for ascertaining the rent of the buildings of same type in the vicinity, for fixation of fair monthly rent by the Court.

3. After receiving the report from the Commissioner arguments of the parties counsel were heard and order reserved.

4. Although the petitioner had been pleading during the proceedings that charges of the maintenance of the furniture were neither rent nor payable as rent but at this stage their learned Advocate came out with the contention that true position is that under an arrangement between landlord and the employees of the petitioner at the time of execution of lease agreement actual rent was bifurcated into two parts. According to him charges given the name of maintenance were also the part of rent but were off the record. The learned Advocate further contended that if the rent is fixed keeping aside the maintenance charges it will be hardship upon the petitioner/the tenant. He also contended that annual property tax paid for the demised premises is legally to be considered while fixing the fair rent. According to him the property tax paid for these premises for the year 2003-2004 was Rs.61,860 only. He referred to annexure

23. He also argued that the premises used as Meezan Bank are new and modern whereas the premises with the petitioner are old structure.

5. Mr. Riaz Qadir Brohi, Advocate representing the landlord/ respondent argued that the maintenance charges were not part of the rent. He further contended that the petitioner is now stopped from claiming them to be the part of the rent as they have been, throughout denying it to be the rent or payable as the rent. He further contended that the rent for the premises being used as Meezan Bank be fixed as the rent of the premises in this matter.

6. The contention that the payment being made as charges of the maintenance were part of the rent is not to be entertained. However, it deserves to be expressed that part of the payments was mutually kept out from the rent agreement for the reasons not disclosed by the parties. It was only during the arguments when the petitioners learned Advocate gave the above-mentioned explanation. Whatever the object may be but the charges were being paid regularly on monthly basis to the landlord without bringing that fact on the record. It is also fact that it was for his benefit. It is also undeniable that the payment of these charges was brought in picture during the hearing of the case for fixation of fair rent when the fair rent does not include the charges. In view of that all the disclosure made by the petitioners counsel does not appear to be a totally made up contention.

7. In the light of the Commissioner's report and the factors being mentioned in the following paras, the rate of rent fixed by the learned appellate authority is evidently unrealistic and unfair. Parties' counsel argued that this Court can decide the question on the basis of admitted material.

8. For the fixation of fair rent the space, age and style of the construction, annual property tax and rate agreed at the initial stage are to be considered mainly. No evidence is available to prove similarity in the demised premises and Meezan Bank's premises in all respects. Therefore, the request for fixing the rent matching with the rent of Meezan Bank is not acceptable.

9. After going through the Commissioner's report and considering all the factors mentioned in the preceding para, I am of the view that Rs.1,50,000 is the reasonable monthly rent for the demised premises. The fair rent is hereby fixed at that rate i.e. Rs.1,50,000 per month. With this order the petition is disposed of with no order as to costs. H.B.T./H-20/K Order accordingly.