P L D 1959 (W (PLP)

KAIKAUS, J.‑Haji Yousuf Latif the applicant in this Civil Revision is the owner of flat No. 15 in Yousuf Mansion, A.M. 3, Karachi while the opponent S. M. Sattar is his tenant. The tenancy began in the year 1949 at a monthly rent of Rs. 24/3/0 per mensem inclusive of taxes etc. There had been no dispute between the parties as to the rate of rent. On 15th April 1953, was enacted the Karachi Rent Restriction Act which repealed the previous legislation on the subject. The Karachi Rent Restriction Act allowed an increase in rent to the details of which reference will presently be made. On the 20th of November 1954, the applicant served on the opponent a notice calling upon him to pay rent calculated by adding 25% to Rs. 24/3/0 and then adding 11% on the total. It was stated in the notice that the applicant was entitled to this increase in view of the provisions of the Karachi Rent Restriction Act. The opponent replied that the notice was based on a misconception of law. At this the applicant applied under section 27 of the Karachi Small Causes Court Act for recovery of rent through distress warrants. On objection taken by the opponent, the Chief Judge of the Karachi Small Causes Court dismissed the application in so far as it prayed for an amount in excess of Rs. 24/3/0. In this revision application the applicant challenges the order of the Chief Judge, Small Causes Court, and prays for an order that the whole of the sum claimed by him as rent be ordered to be paid. The provisions of the Karachi Rent Restriction Act which are relevant for the purposes of deciding the question before us are the following :‑. "2(2) "fair rent" means‑ (a) in relation to residential premises constructed before the 15th day of August 1947,‑ (5) the rent at which the premises were let on the first day of December 1941, or where they were not let on that date, the rent at which they were last let before that date, with the addition, in either of the foregoing cases, of the permitted increase ; or (ii) in the case of any premises let under a lease for a period of five years or upwards commencing on or before the first day of January 1937, which has expired after the first day of December 1941, the rent fixed by such lease for the period including the first day of December 1941, with the addition of the permitted increase ; or (iii) in any of the cases specified in section 12 such rent as, having regard to the provisions of this Act and the circum stances of the case, the Controller deems just ; or (iv) in any other case, such rent as may be determined by the Controller having due regard to the prevailing rates of rent for the .same or similar accommodation in similar circumstances during the twelve months prior to the first day of December 1941, and the permitted increase, and in the ,case of any premises, which have been constructed after that date, also to any general increase in the cost of sites and building con struction ; (b) in relation to premises other than residential premises constructed before the 15th day of August 1947‑ (i) the rent at which the premises were let on the first day of December 1942, or, where they were not let on that date, the rent at which they were last let before that date, with the addition, in either of the foregoing cases, of the permitted increase ; or (ii) in the case of any premises let under a lease for a period of five years or upwards commencing on or before the first day of January 1938, which has expired after the first day of December 1942, the rent fixed by such lease for the period including the first day of December 1942, with the addition of the permitted increase ; or (iii) in any other case, such rent as may be determined by the Controller having regard to the proclaiming rates of rent for the same or similar accommodation in similar circumstances during the twelve months prior to the first day of December 1942., and in the case of premises which have been constructed after that date, also to any general increase in the cost of sites and building construction ; (c) in relation to all premises, residential or otherwise, con structed after the 15th day of August 1947, such rent as shall secure to the landlord a net return of six per centum per annum on the total cost, after deducting the taxes, insurance premium for insurance against fire and earthquake but not otherwise and an amount equal to one and a half per centum per annum of the total cost by way of expenses for maintenance and repairs. The total cost shall include the value of the land and the cost of the construction of the premises

3. The Central Government may, by notification in the official Gazette, appoint for any area an officer‑ to be called a Rent Controller. The Central Government may also appoint an Additional Rent Controller for any area and the Additional Rent Controller shall exercise such powers and perform such duties assigned under this Act to a Rent Controller as the Collector may by general or special order specify.

4. The Controller‑ (a) shall, in the case of premises in respect of which an application is made by the landlord or the tenant, on such application, and (b) may in the case of any other premises, of his own motion, determine, after making such enquiry as he deems fit, the fair rent in accordance with the provisions of this Act Provided that the Rent Controller shall not‑ (a) entertain any application, or (b) take any action on his own motion, for determining the fair rent after the lapse of a period of four months next after the date on which the premises are first occupied: Provided further that the foregoing proviso shall not have effect until the expiry of a period of four months from the commencement of this Act.

7. Where the fair rent of any premises has been determined in accordance with this Act‑ (a) the landlord shall not claim and shall not be entitled to any rent in excess of the fair rent ; (b) any agreement for the payment of rent in excess of the fair rent shall be null and void in respect of such excess and shall be construed as an agreement for the payment of the fair rent ; (c) when the fair rent of any premises has been determined before the commencement of this Act, any sum in excess of the fair rent paid, before the commencement of this Act in respect of any use or occupation of the premises‑ (i) after the first day of April 1942, in the case of residential premises, or (ii) after the first day of October 1943, in the case of premises other than residential premises, shall be refunded to the person by whom it was paid, or, at the option of such person, otherwise adjusted ; (d) where the fair rent of any premises has been determined under this Act after the commencement of this Act, any sum paid in excess of the fair rent for the period commencing from the date of the application for the fixation of the fair rent shall be refunded to the person by whom it was paid or, at the option of such person, otherwise adjusted.

8. Where the landlord pays any municipal rates, cesses or taxes in respect of any premises, an increase of the rent thereof shall not be deemed to be an increase for the purposes of this Act and the landlord shall be entitled to the amount thereof in addition to the fair rent if such amount does not exceed any increase in the amount for the time being payable by the landlord in respect of such rates, cesses or taxes over the amount paid, in respect of residential premises in the period of assessment which included the first day of December 1941, and in the case of the premises other than residential premises, in the period of assessment which included the first day of December 1942 Provided that no such sum in excess of the fair rent shah be payable until the expiry of four clear weeks after the landlord has served on the tenant a notice in writing of his intention to increase the rent, accompanied by a statement showing particulars of the increased amount charged in respect of such rates, cesses or taxes." It will be observed that fair rent is in some cases a matter of calculation after discovering the rent payable at a particular date while in other cases it has to be assessed by the Rent Controller according to the circumstances of a particular case. We have omitted to reproduce the definition of `permitted increase'. It is sufficient to mention that 'permitted increase' is an amount determined either with reference to the rent which was payable on a particular date or with reference to the expense involved in any addition made to the building. The contention of learned counsel for the applicant is, that in cases where fair rent is a matter of calculation after discovering the rent payable on the 1st day, of December 1941, or the 1st day of December 1942, there is no need for the landlord to approach the Rent Controller for determination of fair rent and he can charge a higher rent calculated in accordance with section 2 (2) by. a simple notice. This contention is without force. Section 2(2) provides only the definition and does not say that the tenant is to pay the rent as provided in the section. The various provisions of the Rent Restriction Act run counter to the contention of learned counsel for the applicant particularly section 7 under which the tenant becomes entitled to a refund or to the payment of a sum less than the rent agreed upon only after the rent has been determined in accordance with the Act. Learned counsel for the applicant argued that the word used in section 7 is `determined' whereas the word used in section 12 with reference to the Rent Controller is `fixed' and that the word `determined' does not necessarily refer to a decision by the Rent Controller. But the word used in section 4 is "determine" and in any case it should be quite obvious that a mere notice sent by the landlord cannot be said to be a determination of the question of the amount of rent. If all that has happened is that the landlord has sent a notice to the tenant claiming a higher rent the situation can be hardly described by the words "where the fair rent of any premises had been determined in accordance with this Act". Clause (d) of section 7 even uses the words `determined under this Act' and it is not a possible argument that these words implied only a notice of fair rent given by the landlord. If the Rent Restriction Act which was intended to afford relief to the tenants does trot come to their aid till the fair rent has been fixed by the Rent Controller, it cannot reasonably be argued that so far as increase in rent is concerned it can take place without the determination by the Rent Controller. Clause (d) of section 7 provides that in a case where fair rent is determined under the provisions of the Karachi Rent Restriction Act the refund of excess rent shall be claimable by the tenant only with reference to the date on which the application was filed. It .is clear there fore that the intention was to give effect 3o the decrease in rent only from the date when the Rent Controller is approached. In section 4 there is a limitation of 4 months provided for approaching the Rent Controller. This limitation would be meaningless if there was no need to approach the Rent Controller at all. The argument of learned counsel for the applicant assumes that in cases falling, under clauses (a) (i) (ii) and (b) (i) (ii) of section 2 (2) there is no need of any determination. This assump tion is unjustified. It is the Rent Controller who will have to determine the question whether the building existed on the 15th day of August 1,947, the amount of rent payable on the 1st day of December 1941, or on the 1st day of December 1942, the existence of any lease for a period of five years commencing on or before the 1st day of January 1937, and the amount of the permitted increase. The permitted increase again has to be calculated not only on the basis of rent payable but even on the amount of the cost of any improvement, alteration etc., and these are not matters on which there can be no dispute between the parties. The scheme of the Act obviously is that the fair rent of the premises should be determined by the Rent Controller. So far as decrease in rent is concerned we asked learned counsel for the applicant as to whether the tenant would also be entitled to claim reduction in rent without approaching the Rent Controller. Learned counsel, was unable to give an answer to this question in the affirmative. The landlord would, if he answers this question in the affirmative, loss the great advantage which he had managed to secure for himself by getting a period of four months limitation provided‑in section

4. It may be observed that the landlord could even wholly escape a determination by the Rent Controller by getting the lease ante‑dated by a period of more than four months. It may be difficult in such a case for the lessee to prove that the lease was in fact ante‑dated. The application of the landlord should, therefore, fail with respect to the rent claimed on the ground that there can be no such claim without the determination of a fair rent by the Rent Controller. But the applicant had at the same time claimed in the notice which he sent and in the application which he submitted to the Karachi Small Causes Court a sum on account of increase in taxes. The increase in taxes is governed by section 8 of the Rent Restriction Act. According to that ‑section the landlord is entitled to the amount which he has to pay in excess of the taxes which were to be paid on the 1st day of December 1941, or 1st day of December 1942, (according as the building is residential or non‑residential). This section does not require an assessment of the extra amount paid as taxes by the Rent Controller. The,, words used in this section are that the landlord has a right to such v additional taxes as are paid by him. We would, therefore, be inclined to allow the sum which was being claimed on account of the payment of the additional taxes calculated in accordance with section

8. There is, however, a difficulty in the way of the applicant. According to section 8 there must be a notice by the landlord to the tenant giving particulars of the increased amount. It is admitted that there were no such particulars in the notice given. The notice was, therefore, invalid and according to section 8 the landlord is not without such notice entitled to the taxes. This revision petition is dismissed with Costs. A. H. Petition dismissed.