1. By this common order I intend to dispose Constitutional Petitions Nos. S-326 and S-327 of 2004 through which the petitioner has invoked Constitutional jurisdiction of this Court, challenging the legality and propriety of the judgment dated 8-4-2004 passed by respondent No,2 . The brief facts leading to the filing of the present Constitutional Petitions are that Mst. Ismat Faiz Khan (landlady) filed an application before the learned IInd Rent Controller Karachi East praying for determination of fair rent in respect of the tenement bearing Flat No,5, 2nd Floor, situated in the Building on Plot No,23/16, Block-3, Bahadur Yar Jang, Cooperative Housing Society, Karachi (hereinafter referred to as the 'the said flat') contending that therein that the said flat was rented out to Mushtaq Ahmed (Petitioner herein) at the rate of Rs,650 per month which had not been increased since inception of the tenancy although the rent of the similar flat in the locality is more than Rs,15,000 per month. Further more, maintenance charges had been remarkably increased from that period apart from taxes, as such she was entitled for fixation of fair rent at the rate of Rs,10,000 per month. The petitioner filed his written statement and while denying the above claim contended that the said flat was obtained on `Pugree' therefore the rate of rent was fixed at the low side as per established and the landlady (Respondent herein) had never maintained the same in spite of repeated requests. It was further averred that even the rate of rent of the flats on the ground floor of the same building was Rs,520 and 550 per month, respectively. In view of the above pleadings, learned Rent Controller settled the following points for determination:
(1) Whether the present rate of rent is not just and fair? If so, what should be fair rent?
(2) What should the order be? The Attorney of respondent filed his affidavit-in-evidence and produced number of the documents in support of his contention regarding enhancement of the price of the construction material and the taxes whereas the petitioner filed his affidavit-in-evidence and produced documents with regard to the rate of rent in respect of the other flats and also examined one Shaikh Jamil (tenant of Flat No,3 on the same Floor) through whom he had paid the `Pugree' to the previous landlady.
2. The learned Rent Controller, after going through the evidence, allowed the application and fixed rent at the rate of Rs,2,500 per month.
3. Respondent No,1 (the landlady) filed an Appeal bearing No,149 of 2003 before the learned District Judge Karachi East impugning the order of the Rent Controller on the ground that the fair rent had not been fixed keeping in view the criteria laid down in section 8 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance') and prayed that the rate of rent be fixed at Rs,10,000 per month. The petitioner also filed Appeal bearing No,157 of 2003, challenging the enhancement of rent from Rs,650 to 2,500 having been exorbitant.
4. The learned Appellate Court, though held that the landlady (respondent No,1 herein) could not bring tangible evidence with regard to the rent of the similar premises in the adjoining locality being Rs,10,000 or more and furthermore that in the same building admittedly the rate of rent of similar flat on the ground floor is Rs,550 per month, but keeping in view the continuous rise in the cost of construction (which, too, was held to be not proved by the landlady) and imposition of new taxes allowed the Appeal, bearing No,149/2003, of respondent No,1, on the ground that fixation of rent at rate of Rs,2,500 per month by learned Rent Controller taking judicial notice of the rise in construction material and taxes is proper keeping in view the criterion provided under section 8 of the Ordinance. However, he dismissed Appeal bearing No,157 of 2003, filed by the petitioner challenging the increase of rent. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondent No,
1. It has been contended by the learned counsel for the petitioner that the impugned judgments are not sustainable, null and void, ultra vires, against principles of natural justice and reason recorded by learned respondents Nos.2 and 3 was contrary to applicable laws for enhancement of rent under section 8 of the Ordinance. It has, also, been contended by the learned counsel that on one hand respondent No,2 in his judgment admitted the fact that respondent No,1 failed to bring concrete evidence in respect of actual rise of rent whereas on the other hand upheld his findings without assigning any reason in his judgment. It has, further, been contended by the learned counsel that learned Rent Controller has, without applying her mind or appreciating that the petitioner produced the rent receipts of the same building of the premises of first floor showing the rate of rent as Rs,550 and 620 per month, although having not been cross-examined on behalf of respondent No,1, based her reasoning for the enhancement of rent on the basis of the higher rate of rent of similar premises in the same locality. It has, also, been contended by the learned counsel that the learned Rent Controller failed to appreciate that documents produced by respondent No,1 in order to establish ingredients of section 8 of the Ordinance were fabricated and were never proved by corroborative evidence as per relevant provisions of Qanun-e-Shandat. It has, also, been contended by the learned counsel that there is misappropriation of evidence on the part of the learned Rent Controller to the effect that the premises comprises only one room and such fact was not denied by respondent No,1 since neither any question was asked from the side of respondent No,1 nor she ever produced any proof of three rooms. It has, further, been contended by the learned counsel that though admittedly not only the flat was not maintained by the landlady but said flat being an old structure, having wall cracks, unplastered roof, dangerous electric wires, leakage of sui gas lines and seepage of water lines, is in dangerous condition, even then the learned Rent Controller enhanced the rent of the premises failing to appreciate above-stated condition. Lastly, it is argued that this is a case of misreading and non-reading of evidence as reasoning of impugned judgments is misinterpretation of law. He has relied upon the cases of Haji Mohibullah & Co., and others v. Khawaja Bahauddin (1990 SCM R 1070) and M/s. Olympia Shipping and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan (2001 SCM R 1103) in support of his contentions. On the other hand, learned counsel for respondent No,1 has contended that the concurrent findings of the two Courts below would not be open to interference by the High Court in Constitutional Petition since it does not sit as Court of Appeal and cannot decide whether evidence was sufficient for conclusion arrived at by the two Courts below and is not, at all, obliged to go into the merits of the case de novo and would not undertake to reappraise and assess evidence merely because that after fresh appraisal of evidence the High Court can reach a different conclusion. It has, further, been contended by the learned counsel that enhancement of rent under section 8 of the Ordinance by the learned Rent Controller and maintained by the Appellate Court was well within their powers conferred by the legislation and in this respect the petitioner was given full opportunity of hearing and there is nothing on the record to suggest that the two Courts below had breached the principle of natural justice or any other law. It has, also, been contended that respondent No,1 fully discharged the required standard of burden of proof in civil cases therefore the contention of the learned counsel for the petitioner does not weigh to the extent that respondent No,1 failed to bring concrete evidence in respect of actual rise of rent. It has, also, been contended by the learned counsel that the learned Rent Controller enhanced the rent on the basis of the higher rate of rent of similar premises in the same locality which fact was admitted by the witness of the petitioner in his cross-examination to the extent of Rs,6,000 to Rs,8,000. However, even the rent was enhanced only up to Rs,25,00 which was much lower than respondent No,1 was unable to establish in evidence. It has, also, been contended by the learned counsel that there is no restriction of law on increase of rent of a rented premises up to 400% or more and the criteria laid down for increase of rent by the Ordinance is not in terms of percentage in relation to previous rent but there are four factors for determination for fair rent i,e, (a) the rent of similar premises; (b) the rise in cost of construction; (c) the imposition of new taxes; and (d) the annual value of the premises. I have considered the arguments of both the learned counsel appearing for the respective parties and have also gone through the record, placed before me, as well as case-law, cited at the bar.
5. Perusal of the impugned judgment dated 8-4-2004 passed by the learned' Appellate Court i,e, District Judge Karachi East indicates that neither at the trial nor at the Appellate stage evidence produced by the petitioner was considered and furthermore though respondent No,1 failed to bring tangible evidence with regard to the rent of the similar premises in the adjoining locality. On one hand learned District Judge Karachi East (Respondent No,2) in his judgment admitted the fact that respondent No,1 failed to bring concrete evidence in respect of actual rise of rent whereas on the other hand upheld his findings without assigning any reason in his judgment. The relevant portion of the said judgment is reproduced hereunder: the landlady could not bring tangible evidence with regard to the rent of the similar premises in the adjoining locality is Rs,10,000 or more, whereas in the same building admittedly the rate of rent of similar flat on the ground floor is Rs,550 per month. Although it cannot be denied that there is continuous rise in the cost of construction and new taxes have been imposed but the landlady was required to bring concrete evidence in respect of the actual rise which she has failed and therefore the learned Rent Controller taking judicial notice of the rise in construction material and taxes has fixed at the rate of Rs,25,00 per month which is apparently not low because this increase is also 400% which is proper keeping in view the criterion provided under section 8 of the Ordinance." Furthermore, perusal of the judgment dated 30-10-2003 passed by the learned Rent Controller Karachi East, reveals that she had, without applying her mind or appreciating that the petitioner produced the rent receipts of the same building of the premises of first floor showing the rate of rent as Rs,550 and 620 per month, although having not been cross-examined on behalf of respondent No,1, based her reasoning for the enhancement of rent on the basis of the higher rate of rent of similar premises in the same locality. There seems to be misappropriation of evidence on the part of the learned Rent Controller to the effect that the premises comprises only one room and such fact was not denied by respondent No,1 since neither any question was asked from the side of respondent No,1 nor she ever produced any proof of three rooms. Admittedly, the said flat was not maintained by the landlady possession of which was taken over by the petitioner after payment of `Pagree' worth Rs,1,15,000 to the previous owner and this fact was corroborated by the evidence of previous tenant of the said flat. It is not the practice of the landlords to give any receipt about the payment of `Pagree' judicial notice of which fact could be taken by the learned Rent Controller instead of taking judicial notice about the enhancement of taxes imposed by the Government in the prevailing circumstance which fact has also not been proved by respondent No,1 through any sort of evidence. Perusal of impugned judgment further goes to indicate that landlady (Respondent No,1) failed to establish her case within none of the ingredients of section 8 of the Ordinance. The issue about the enhancement of rent in view of section 8 of the Ordinance purely comes within the legal proposition and this Court can validly, entertain the above question and adjudicate the same in accordance with law irrespective of the fact concurrence exists between both the judgments passed by the two Courts below. Reliance in this behalf is placed on the judgment in the case of Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others (1986 CLC 1680):-- "To these, acts of misreading/non-reading of evidence, failure to notice and an act in accordance with the binding precedents of superior Courts, as also misapplication of statute law may also be added as instances where interference in Constitutional jurisdiction can be made available. It may be noticed that the Courts invested with powers to administer. Justice, indisputably a sacred trust, are obliged by compulsion of law both divine and statute to carefully examine, analyze the evidence present before them, before they arrive at decisions. Every bit that has been placed before them has to be taken note of and given due weight. Absence of right of second appeal to this Court in rent matters has added further responsibility in this behalf." Reliance can also be placed on the case Haji Mohibullah & Co., and others v. Khawaja Bahauddin (1990 SCM R 1070):-- "In writ jurisdiction the High Court ordinarily does not interfere with concurrent findings of fact recorded by the Courts below. However, where there is misreading of the evidence, or omission to take into consideration material evidence, or where any statute law or rule of law laid down by a superior Court has not been applied by the Courts below, the High Court can interfere. The main question, therefore, that calls for determination is whether there has been misreading of the evidence or failure to apply correct principles of law on the part of the Rent Controller or the learned Additional District Judge in the instant case."
6. Consequently, it is a fit case for exercise of Constitutional jurisdiction and the judgments passed by the learned Rent District Judge, (Respondent No,2) and learned Rent Controller are not to be sustained being opposed to law and settled principles for administration of justice. Accordingly, both these Constitutional petitions are allowed and judgments dated 4-4-2004 and 30-10-2003 passed by the learned District Judge (Respondent No,1) in F.R.A. No,149 of 2003 and learned Rent Controller in Rent Case No,203 of 2001 are quashed.