P L D 2007 Karachi 485 (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this Constitutional Petition, the petitioner has assailed judgment dated 21-9-2006 passed, by V Additional District Judge, Karachi South whereby fair rent payable by the petitioner/tenant was fixed at Rs.6400 per month from the date of institution of rent application viz. 3-2-1993 and has prayed for modification in the judgment to the extent that petitioner may be permitted to pay the fair rent at Rs.6400 per month from the date of impugned judgment.

2. The relevant facts are; that the petitioner is. the tenant of respondent No.1, State Life Insurance Corporation of Pakistan, in respect of Flat No.19, ILACO House, Abdullah Haroon Road, Karachi for the last about 56 years. Previously the petitioner used to pay rent at the rate of Rs.115 per month, however with mutual consent of the parties rate of rent was enhanced to Rs.800 per month. Thereafter respondent No.1 filed Rent Case No.176/1993 for fixation of fair rent at the rate of Rs.8,000 per month. The petitioner contested the rent 'case and consequently the same was dismissed vide order dated 16-3-1998. However, on appeal the matter was remanded and ultimately the learned Rent Controller fixed the fair rent at the rate of Rs.2,500 per month. Both,' the petitioner as well as respondent No.1, challenged the said order in appeal before this Court. Subsequently, due to change in jurisdiction, both the appeals were transferred to District Court Karachi South. After conclusion of the arguments advanced by learned counsel for the parties, appeal filed by the petitioner was dismissed whereas appeal of respondent No.1 was allowed and the fair rent was increased to Rs.6,400 per month from the date of institution of rent application viz. 3-2-1993. Hence this petition.

3. Admittedly the petitioner has not challenged the quantum of fair rent fixed by the appellate Court. The only prayer made by her is to, "modify the judgment to the extent that the petitioner shall pay .fair rent fixed at the rate of Rs.6,400 per month effective from 21-9-2006". In this view of the matter, the only point to be decided is, as to from which date the enhanced rent of Rs.6,400 should be made effective.

4. According to learned counsel for the petitioner, respondent No.1 filed the rent case on 3-2-1993 and after a few months the petitioner filed her written statement, but respondent No.1 took about 13 months in filing affidavit in evidence. It is further pleaded that after completion of respondent's cross-examination on 27-11-1996, the petitioner filed her affidavit in evidence on 6-2-1997 i.e. after about two-months. According to him, although the petitioner was regularly appearing for the purpose of her cross-examination but she could not be cross-examined as none was appearing on behalf of respondent No.1 with the result that on 13-12-1997 her cross-examination was marked as 'Nil'. In this way, respondent No.1 lingered on the matter and delayed its disposal. It is further contended that again in the Appellate Court respondent No.1 adopted delaying tactics, inasmuch as written arguments on behalf of the petitioner were filed on 25-7-2002 whereas written arguments on behalf of respondent No.1 were filed on 15-3-2005 i.e. after about three years and after the written arguments of both the sides having been filed, 'Appellate Court took about one and a half year in passing the impugned judgment. He further contended that the petitioner is a widow of about 85 years of age and is dependant upon her son who works in abroad and she is not in a position to pay arrears of rent from the date of institution of rent case viz. 3-2-1993 as it comes to approximately Rs.8,00,000, thus it is pleaded that the order of fixation of fair rent amounts to ejectment of the petitioner from the flat in question.

5. Conversely, it was contended by learned counsel for respondent No.1 that no deliberate or, intentional delay was caused by respondent No.1 and that ordinarily fair rent, is to be fixed, from the date of institution of rent application. In support of his contention, he relied upon two judgments of the Honuorable Supreme Court in the cases of Volkart (Pakistan) Ltd., Karachi v. Interavia Pakistan Lim-rifted, Karachi 2001 SCMR 671 and H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115.

6. In the case of H. Cooper and others (supra) the Honourable Supreme Court observed as under:- "No date has been fixed for the payment of fair rent in section 8 of the Ordinance. In 'Punjab Rent Restriction Ordinance and N.-W.F.P. Rent Restriction Ordinance the fair rent shall be payable by the tenant from the date to be fixed by the Controller not earlier than the -date of the application. A discretion has been vested on the Controller to fix the date for payment of fair rent keeping in view the circumstances of a particular case. The fair rent is to be fixed keeping in view the factors mentioned in section 8 of the Ordinance." It was further observed:-- "We may, however, observe, that in case the appeal is filed against the order fixing the fair rent, the Appellate Court is competent to fix a date for the payment of fair rent." In the case of Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 the apex court made following observations:-- "So far as the law is concerned, section 8 does not lay down any fetters on the power of the Rent Controller or the Appellate Authority to fix the fair rent from a particular date. It would thus, follow that very wide discretion has been conferred by law on the Rent Controller to fix the fair rent from the date of application or from the date of order and in suitable cases even from a date between the two events. The discretion vested in the Rent Controller as well as the Appellate Court is, however, not arbitrary or whimsical. Discretion in fixing the fair rent as well as the period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust. No inflexible rule of law could be laid down as to date of payment of fair rent because it would depend on the fact sand circumstances of each case."

7. It is an undisputed fact that the petitioner is the tenant of respondent No.1 in the flat in question since 1950. In his cross-examination, Deputy Manager of respondent No.1 namely Muhammad Akhlaq admitted that by mutual consent rent was enhanced from Rs.115 to Rs.800 with effect from 1-7-1989 and after about 3 and a half years viz. on 3-2-1993 application for fixation of fair rent was filed praying therein for enhancing the rent from Rs.800 to Rs.8,000 which comes to Rs.1,000 per cent. The petitioner claims to be an aged lady of about 85 years which fact has not been disputed. Besides, the learned counsel for respondent No.1 has not been able to successfully controvert the allegation of delaying the disposal of rent application and that of the appeal by respondent No.1.

8. As stated above, the petitioner has not challenged the quantum of fair rent fixed by the appellate Court at the rate of Rs.6,400 and the only prayer made by her is to allow her to make payment of the said fair rent fixed from 21-9-2006 viz. the date of order passed by the Appellate Court. In view of the dictum laid down by the Honourable Supreme Court, date for payment of fair rent is to be fixed according to the facts and circumstances of each case and there is no hard and fast rule that fair rent is to be paid from the date of institution of rent application. Although the Rent Controller or for that matter the Appellate Court have been bestowed discretionary powers to fix fair rent from the date of institution of rent application or from the date of the order or even from a date in between the two events, as stated above, however such discretion is to be exercised judiciously and reasons should be assigned for fixing the fair rent from a particular date which, in the present case, are lacking. Neither the learned Rent Controller nor the Appellate Court has assigned any reason to justify the payment of fair rent from the date of institution of rent application. It is also worth-noting that the learned Rent Controller had fixed the fair rent at the rate of Rs.2,500 per month from the date of filing the rent application, however, the learned Appellate Court enhanced the fair rent from Rs.2,500 to Rs.6,400 although in the operative part of the impugned judgment Appellate Court observed that, "order of trial Court fixing fair. rent at Rs.2,500 per month is just and reasonable," Keeping in view the peculiar circumstances of the instant case, I am of the opinion that the ends of justice would meet if the petitioner is allowed to pay the fair rent at the rate of Rs.6,400 per month from the date of the order passed by the Appellate Court viz. 21-9-2006.

9. Accordingly, the petition is allowed and the impugned judgment is modified to the extent that the petitioner shall pay the fair rent at the rate of Rs.6,400 per month from 21-9-2006 viz. the date of order of the Appellate Court. M.H./M-78/K Petition allowe