P L D 1996 Karachi 494 (PLP)

This is an appeal against the Order of IIIrd Senior Civil Judge and Rent Controller (Central), Karachi, dated 16th January, 1995, fixing fair rent of the premises 0 Rs.9,000 per month with effect from 1‑1‑1990. Appellants are the tenants of the respondent in a building on Plot No.WSA‑11, Block 3, Scheme No. 16, F.B. Area, Karachi, since 1973. The rent was increased to Rs.1,800 per month vide agreement dated 1‑1‑1980 between the predecessors of appellants and the respondents. Area of the plot is 500 sq. yards of which 3150 sq. ft. is constructed area while the remaining is open area. On 22‑12‑1992 the respondents filed an application under section 8 of the Sindh Rented Premises Ordinance for fixation of fair rent @ Rs. 10,000 per month. Before this the respondents through their Advocate gave legal notice, dated 2‑11‑1992 for enhancement of rent. Appellants in their written statement resisted the fixation of fair rent @ Rs. 10,000 Aich according to them was unreasonable. Respondents examined Abdul Malik, their attorney who claimed that the fair rent be fixed @ Rs. 10,000 per month looking to the enhanced cost of construction and also the rents prevailing in the same locality of similar premises. He produced lease agreement executed between Haji Abdul Karim predecessor of the respondents and Mukhtar Ahmed, predecessor of the appellants dated 1‑1‑1980 and also lease agreement between one Muhammad Hanif Gondal and Syed Iftikhar Hussain Jaferi in respect of the similar premises. Affidavit in evidence of one Syed Mukhtar Hussain Jaferi was also filed to prove the lease agreement produced by the respondents' attorney in respect of the similar premises but the said witness did not appear for cross‑examination. From the side of the appellants Shahid Mukhtar was examined who deposed that rent of similar premises in the area is Rs. 1. 50 per sq. ft. One Shahid Arfin owner of a building in adjacent locality, was also examined by the opponent. He deposed that rent of similar premises as that of one in litigation is between Re. I to Rs. 1. 50 per sq. ft. whereas the rent for better construction is Rs.2.50 to Rs.3.00 per sq. ft. Affidavit in evidence of one Syed Abdul Aziz was also filed by the appellants but he did not appear for his cross‑examination. The learned Rent Controller set the following Mints for determination‑ (1)?? Whether the applicant is entitled for the fixation of monthly rent? If yes, to what extent? (2)?? What should the Order be? Finding of the Rent Controller on point No. I is in affirmative and he fixed the fair rent @ Rs.9,000 per month with effect from 1‑1‑1990. The crucial point in this appeal is whether rent fixed by mutual agreement between the parties can be revised. Relevant provisions of sections 7, 8 and 9 of the Sindh Rented Premises Ordinance are reproduced as under:‑‑‑ ?

7. Higher rent not chargeable.‑‑No landlord shall charge or receive rent in respect of any premises, at the rate higher than that mutually agreed upon by the parties, and, if the fair rent has been fixed by the Controller in respect of such premises, at the rate higher than the fair rent. 8????? Fair rent.‑‑‑ (1) 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 (d)?? the annual value of the premises, if any, on which property tax is levied. (2)??? Where any addition to or improvement in, any premises has been made or any tax or other public charge has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixture such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration. 9????? Limit of fair rent.‑‑‑ (1) Where the fair rent of any premises has been fixed, no further increase thereof shall be effected unless a period of three years has elapsed from the date of such fixation of commencement of this Ordinance whichever is later. (2)??????? The increase in rent shall not, in any case, exceed ten per cent per annum on the existing rent." By plain reading of the above-quoted sections would reveal that the parties are free to approach the Rent Controller for fixation of fair rent at any stage if that has not been already done and any previous mutual agreement will be no bar for fixation of fair rent under the provisions of section 8 of the Sindh Rented Premises Ordinance. A reference in this regard can be made to the case of Sultan Ali v. Mst. Khadija Bai 1995 CLC 1441 and H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115. Sections 7, 8 and 9 of the Sindh Rented Premises Ordinance are enacted to safeguard the interest of landlord and tenant and on the principle that nobody should be compelled to charge rent in excess of rent prevailing in the locality and also the landlord be compensated for increase in cost of construction and taxes etc. The discretion of the Court in fixing the fair rent is limited under the provisions of section 8 of the Sindh Rented Premises Ordinance. The Court cannot fix the rent arbitrarily and without considering the provisions of section 8 the rent prevailing in the locality of the similar premises, rise of cost of construction, increase in the taxes etc. In the instant case though the rent agreement in respect of an adjacent premises in the same locality was filed and so also affidavit‑in‑evidence of neighbourer Syed Mukhtar Hussain Jaferi but neither the rent agreement was proved in the Court by examining the executants of the same nor the said Mukhtar Hussain Jaferi has turned up for his cross‑examination, therefore, the same cannot be considered. As such, we are now left with the evidence of the respondents' attorney and admissions made by the appellant Abdul Malik attorney of respondent has deposed that rent of similar premises in the locality is not less than Rs.5 per sq. ft., but appellant Shahid Mukhtar in his cross?-examination has admitted the rent to be Rs. 1. 50 per sq. ft. In cross‑examination he has deposed "it is incorrect to suggest that in the said area the commercial premises fetch rent Rs.5 per sq. ft., for covered and uncovered area. Vol. says "there is a rate about Rs.1.50 per sq. ft.." In his affidavit‑in‑evidence he has so stated that "rate of rent of premises law to the opponents is between Re.1 to Rs. 1.50 per sq. ft." Shahid Arfin witness examined by the appellant also stated ‑that prevailing rent of Katcha construction in the area is between Re. I to Rs. 1‑50 per sq. ft. and for Pucka construction is Rs.2‑50 to Rs.3‑00 per sq. ft. Considering the admissions made by the appellant and his witness regarding the rent of the similar premises of the locality, I am of the view that the fair rent should be Rs. 1.50 per sq. ft. which is just and proper. This rent cannot be termed excessive because it based on admissions of appellant and his witness which is binding on them. Learned counsel for the respondents also concedes that Rs. 1.50 per sq. ft is fair and proper. This fair rent will be in accordance with the provisions of subsection (1)(a) of section 8 of the Sindh Rented Premises Ordinance. So far other circumstances of rise in cost of construction, enhanced taxes etc.., are concerned the rent being charged @ Rs. 1.50 in the locality will be in consideration of all these factors. As the total area of the plot is 4500 sq. ft, therefore, the fair rent is Rs.6,750 per month. The Sindh Rented Premises Ordinance does not provide the date from which the fair rent would be fixed but it is left to the discretion of the Rent? Controller/Court keeping in view the circumstances of each case. In the instant case application for enhancement of the rent was filed on 22‑12‑1992 but the learned Rent Controller had fixed the fair rent from 1‑1‑1990. It is well‑established principle that where the statute does not provide the date, the same can be fixed either from the date of filing of application or from the date of the order or even from the date in between the two dates D cooking to the peculiar circumstances of the case. In my view the date fixed by the Rent Controller for payment of fair rent is not proper and the proper date would be the date on which the landlord, agitates his right of payment of fair rent i.e. 22‑2‑1992. In view of my above discussion I dismiss the appeal with slight modification in the impugned order that the fair rent of Rs.6,750 per month will be collected from 22‑2‑1992. N.H.Q./S.36/K????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.