1. By this common judgment I intend to decide Constitutional Petitions Bearing Nos. 152, 153, 256 and 257 of 2005.
2. The brief facts for the purposes of determining these petitions are that the petitioners in C.Ps. Nos.
3. 256 and 257 of 2005 viz. State Life Insurance Corporation of Pakistan are the landlords whereas the Petitioners in C.Ps. Bearing Nos. 152 and 153 of 2005 viz. Habib Insurance Company Limited are the tenants. The State Life Insurance Corporation of Pakistan filed two separate applications under Section 8 of the Sindh Rented Ordinance, 1979 (hereinafter referred to as 'the Ordinance') seeking fixation of fair rent against their tenants Habib Insurance Company Limited who were occupying two different tenements in different buildings adjacent to each other one being State Life Building No. 6 and other being 6-A situated at M.A. Jinnah Road Karachi. The Rent Case Bearing No. 592/92 was in respect of the premises situated on the first floor of State Life Building No. 6- A comprising of 2599 sq. ft., in possession of Habib Insurance Company Limited at a monthly rental of Rs. 1303 i.e. 0.50 paisa per sq. ft., whereas Rent Case No. 593/1992 was in respect of the premises situated on the first floor of State Life Building No. 6 comprising of 6216 sq. ft., in possession of Habib Insurance Company Limited at a monthly rental of Rs. 4140 i.e. 0.67 paisa per sq. ft.
4. The grounds for seeking fixation of fair rent being that the building wherein the demise premises is situated are located in the heart of commercial area of Karachi where most of the offices of reputed firms, companies, banks and other bodies are situated and claimed that the prevailing rent of the similar premises situated in the similar circumstances in the same and adjoining locality is Rs. 12 per Sq. ft., per month. Increase in cost of construction, repairs, maintenance charges, imposition of new taxes and increase therein was further pleaded and prayed that the fair rent of the said premises be fixed at the rate of Rs. 12 per sq. ft., per month from the date of institution of the case.
5. The Respondents/tenants filed their written-statement and pleaded that the increase sought is very exorbitant and sought the dismissal of the application on the ground that neither any maintenance has been carried out by the landlords nor there is any increase in taxes and they have already increased the rent by 50% in the year 1994 and then again by 20% in the year 1997.
6. The landlords filed their affidavit-in-evidence and produced various documents showing the increase of taxes as well as the statement of expenses reflecting increase in the repair and maintenance charges and further two leases one in respect of a premises situated in one of the buildings owned by the landlords being No. 1-C the entrance whereof is from Chundrigar Road Opposite Mohammadi House reflecting rate of rent at Rs. 16 per sq, ft, whereas the other in respect of a premises situated on the ground floor of the same building i.e. 6-A reflecting rate of rent being charged at the rate of Rs. 10 per Sq. ft. per month. The copies of the aforesaid lease deeds were produced by the witness of the petitioner alongwith his affidavit-in-evidence as ExhA/2 and Exh.A/3, respectively, whereafter the respondents/tenants filed their affidavit-in-evidence and reiterated the contents of the written statement and thereafter both the witnesses were cross- examined by the Advocates of their adversaries. The Rent Controller on the basis of the pleadings and evidence before him enhanced the rent from paisas 50 and paisas 67 per sq. ft., per month to Rs. 2 per sq. ft., per month. However, the lease deed produced by the landlords as Exh.A/2 and Exh.A/3 reflecting charging of rent at Rs. 16 per sq. ft., per month in the building situated in the adjoining locality and Rs. 10 per sq. ft, per month in the same building were not considered on the ground that the original of the said documents were not produced. This order was only challenged by the landlords by filing two separate Appeals bearing Nos. 472 and 473 of 2001 which were decided by the VII Addl. District Judge Karachi South by a common judgment dated 29-4-2004 whereby the learned VII Addl. District Judge also without taking into consideration the aforesaid two leases, produced as Exhs. A/2 & A/3 enhanced the rent from Rs. 2 to Rs. 5 per sq. ft., per month.
7. This common judgment of the learned VII Addl. District Judge was challenged by the landlords by filing Constitutional Petitions bearing Nos. 501 and 502 of 2004 and by the tenants/respondents by filing Constitutional Petitions bearing Nos. 509 and 510 of 2004. The said petitions were decided by this Court by a common order dated 24-11-2004, relevant portion whereof being very material for deciding the controversy involved in these petitions as such is reproduced below: "..... the Lease Deed Exh.A/3, which was produced in the evidence, has not been considered at all by the learned Additional District Judge and consequently the impugned order suffers from non reading of evidence.
8. Mr. Mazhar Imtiaz Lari, learned counsel for the respondent is not able to rebut the contention.
9. Since the material evidence has not been considered at all by the learned Additional District Judge while disposing of the Appeal, therefore, the impugned order is not sustainable. With the consent of both the learned Advocates, the impugned order passed by the learned Additional District Judge is hereby set aside and the case is remanded to the learned VII Additional District Judge (South)
10. Karachi, with direction to re-hear the parties and decide the appeals afresh after considering the entire evidence available on record and pass a speaking order."
11. Consequently, the order was set aside and the case was remanded back to the VII Addl. District Judge Karachi to decide the matter afresh after hearing the parties and considering the entire evidence available on record by passing the speaking order. The VII Addl. District Judge, thereafter, decided the said appeal afresh vide his judgment dated 17-1-2005 which has been impugned by the landlords by filing Constitutional Petitions bearing Nos. 256 and 257 of 2005 and by the tenants by filing Constitutional Petitions bearing Nos. 152 and 153 of 2005.
12. Learned counsel for the Petitioners/landlords has urged that despite directions of this Court as contained in its order dated 24-11-2004 whereby the case was remanded-to the VII Addl. District Judge Karachi South to re-hear the parties and decide the appeals afresh after considering the entire evidence available on record, the Appellate Court has failed to take into consideration Exhs.A/2 and A/3 on the ground that the same being photocopies and despite opportunity provided to the landlords they have failed to produce the original of the said exhibits. The learned counsel has pleaded that the said documents were - exhibited as Exhs. A/2 and A/3 in the evidence without any objection as to the validity or genuineness of the said documents. He has further invited my attention to the following portion of cross-examination of the witness of landlords: ; '
13. ".....It is correct to suggest that Exh.A/3 is executed with Gul Ahmed. It is incorrect to suggest that one Khalid son of said Gul Ahmed is working as a Typist in company of applicant. I do not know Khalid son of Gul Ahmed. It is correct to suggest that premises given to Gul Ahmed for purpose of restaurant. It is correct to suggest that some portions of Exh. A/3 are blank. It is incorrect to suggest that there is no kitchen in the cases premises."
14. It has been urged that no where during the cross-examination the veracity of Exh.A/3 was challenged nor the original was demanded. Consequently, it was pleaded that if the photostat copy of a document is exhibited without objection from the other side then the veracity of such document cannot be challenged at the appellate stage. In support of his contention, the learned counsel has relied upon the following observations of the Hon'ble Supreme Court in the case of Habib Bank Ltd. v. Anis Ahmad and others (1996 SCM R 1329): "It seems to be an admitted position that the above Photostat copies of the documents were exhibited by the learned Rent Controller without any objection from the side of the respondents, in this view of the matter, the ratio decidendi of the judgment of this Court in the case of Ghulam Muhammad v. United States Agency for International Development (USAID), Islamabad (1986 SCMR 903) was applicable. If an objection to formal proof of a document is not raised at the earliest point of time, no such objection can be allowed to be raised at the appellate stage. Reliance was placed in the above judgment on an earlier judgment of this Court rendered in the case of Malik Din and others v. Muhammad Aslam (PLD 1969 SC 136).
15. Learned counsel has further argued that since this Court in earlier round of litigation while deciding Constitutional Petitions bearing Nos. 501, 502, 509 and 510 of 2004 had specifically directed the Appellate Court to decide the appeals afresh after considering the entire evidence on record which included Exhs, A/2 and A/3, despite, the Appellate Court for extraneous reasons did not consider the said documents in clear violation of said direction.
16. It is further contended that the Petitioners/landlords had filed another case seeking fixation of fair rent against their other tenant viz. Messrs Olympia Spinning and Weaving Mills Limited who are tenant of the same building i.e. State Life Building No. 6 in respect of premises situated at 2nd and 3rd floors and were also paying rent @ paisas 50 per sq.ft., the petitioner/landlord sought increase at the rate of Rs. 10 per sq.ft., the Rent Controller fixed the fair rent at the rate of Rs. 7 per sq.ft., on appeal this Court after appreciating the evidence produced increased the rent to the extent of Rs.
17. 8.67 per sq.ft. The tenant filed an appeal before the Hon'ble Supreme Court which was dismissed.
18. The learned counsel has contended that the judgment of the Hon'ble Supreme c Court is binding on this Court as such the fair rent should be at least Rs. 8.67 per Sq.ft.
19. The learned counsel further contended that the petitioners/ landlords have produced statements reflecting significant raise in the betterment tax, water charges, taxes of KMC/KWSB as such the order of the Rent Controller as well as of Appellate Court is based on misreading and non-reading of the material produced before them. In the end, the learned counsel prayed that instead of remanding the case and prolonging the agony of the landlord, the rate of rent fixed by this Court at Rs. 8.67 per sq, ft., per month in respect of other premises of the landlord in the same building and upheld by the Hon'ble Supreme Court may be fixed as fair rent. On the other hand, learned counsel for the Respondents-tenants has contended that the petitioners have miserably failed to prove all four factors as envisaged under Section 8 of the Ordinance being prerequisite of such increase. It was further contended that the increase in the taxes is insignificant and not proportionate to the increase as demanded by the landlord. The learned counsel further contended that despite opportunity, the landlords were not able to produce the original of Ex.A/3 therefore the Appellate Court has rightly refused to consider the said exhibit. In rebuttal, learned counsel for the Petitioner/landlord has produced the original of Exh.A/3 before this Court which after inspection was returned. The learned counsel for the Petitioner/landlord in response to the contention of the learned counsel for the Respondents/tenants that the landlord has failed to prove all four factors as required under Section 8 of the Ordinance has relied on the case of Messrs Olympia Spinning and Weaving Mills Limited v. State Life Insurance Corporation of Pakistan Limited (2001 SCM R 1103) and invited my attention to the following observations: "16. Viewed in the light of the language employed by the Legislature and the earlier precedents it may be observed that four factors incorporated in law are in the nature of guiding principles for the Rent Controller for determination of fair rent. The cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight. Nevertheless, common ground available in most of cases would be the prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality. It may, thus, be made clear that existence of all the four conditions is not the invariable rule of law and presence of all factors in a case might lead to appreciation in determining rate of rent for the purpose of fair rent.
20. Absence of any of the factors would not, in any case, prejudice the case of the applicant before the Rent Controller."
21. I have given due consideration to the arguments advanced at the bar and perused the record and case law produced before me.
22. It was not controverted that the main cause of grievance of the landlord in the earlier round of litigation was non-consideration of Exh.A/3 by the Rent Controller as well as by Appellate Court while fixing fair rent despite the fact that the respondent/tenant has not challenged the validity or genuineness of the said document. It is also not disputed that in the earlier round of litigation the case was remanded by this Court to the Appellate Court with the directions to pass an appropriate order after considering entire evidence produced before the Rent Controller. A perusal of order passed by this Court in the earlier round of litigation, as above, reflects that even before this Court no challenge was thrown as to the production or genuineness or validity of the said exhibits. In cases where the evidence is led by filing affidavit-in-evidence, the documents filed alongwith such affidavits are always exhibited in the affidavit by the person filing such affidavit-in-evidence, however, primarily it is for the Court to examine the witness producing 'such documents and to exhibit the documents so produced and or to refuse the production of those documents which otherwise cannot be produced in accordance with the law. However, if such an exercise is not carried out by the Court then it is for the adversary to challenge the veracity of any document during the cross-examination or ask for the production of its original and if no such objection is raised then it leads to the conclusion that the production and or genuineness of the documents or its contents are not disputed. In the circumstances, it was out of place for the appellate Court to ask for the production of original of Exh.A/3. The Appellate Court, as such, has erred in law in not considering Exh.A/3 which leads to the conclusion that the landlord has proved that the rate of rent charge in the same building for a premises situated on the ground floor is at Rs. 10 per sq. ft , per month. The next submission of the learned counsel for the Respondent/tenant that the petitioner/landlord has failed to prove all the four factors as reflected in Section 8 of the Ordinance are without any substance as by now it is well-settled law that absence of any of the factors would not, in any case, prejudice the case of the landlord seeking fixation of fair rent as held by the Hon'ble Supreme Court in the case of Messrs Olympia Spinning and Weaving Mills Limited (supra).
23. A perusal of record further reflects that the landlord has specifically asserted in the affidavit-in- evidence filed on its behalf that the prevailing rent of the similar premises situated in the similar circumstances in the same and the adjourning locality is at Rs. 12 per sq. ft. per month. However, the said assertions are gone unrebutted in the cross-examination. On the other hand, in the affidavit-in-evidence filed on behalf of the Respondent-tenant by its authorized representative there is no denial of the petitioners/landlords' assertions that the prevalent rent in the locality is not as claimed by the petitioners/landlords nor any documentary evidence was produced to the contrary, in fact, the said representative of the Respondent-tenant during his cross-examination has shown ignorance regarding rate of rent being charged in the said area, in the circumstances such ignorance amounts to an admission. The petitioners/landlords have placed on record sufficient evidence to establish that the rent in the same building is being charged at the rate of Rs.
24. 10 per sq. ft. per month whereas the rent of a premises situated on the third floor of the same Building is being charged at the rate of. Rs. 8.57 per sq. ft. per month as fixed by this Court and upheld by the Hon'ble Supreme Court. However, the Appellate Court for the reasons best known to it has failed to consider the evidence despite specific directions from this Court and thereby failed to exercise jurisdiction vested in it in accordance with law. The findings of facts normally are not to be interfered in exercise of constitutional jurisdiction unless it is shown that the findings are recorded by mis-appreciation of evidence and against the well-settled principles for appraisal of evidence. In my view the case of the petitioners/landlords falls within such exception as the Appellate Court has totally failed to appreciate the evidence on record due to misconception of law. It would, therefore, be very harsh and unjust to remand the case to the Appellate Court for fixing the fair rent upon appreciation of evidence available on record specially when the learned counsel for the petitioners/landlords has shown his willingness to accept the same amount of rent as was fixed by this Court in respect of another premises of the petitioners/landlords situated on the third floor of the same building and such fair rent was maintained by the Hon'ble Supreme Court. In the circumstances, there is no question of fact which requires determination from this Court, as the petitioners/landlords cannot be allowed to suffer again and again due to an illegality committed by the Rent Controller or the Appellate Court, consequently, the amount of fair rent fixed by the Appellate Court at Rs. 5 per sq. ft. per month is modified by enhancing the same to the extent of Rs. 8.57 per sq. fit., per month payable by the respondent-tenant to the landlords from the date as fixed by the Rent Controller in its order.
25. As a result. Constitutional petitions Bearing Nos. 256 and 257 of 2005 are allowed and Constitutional petitions Bearing Nos. 152 and 153 of 2005 are dismissed.