1. MRS. QAISER IQBAL, J. ---This constitutional petition has arisen from the impugned judgment whereby the petitioner seeking fixation of fair rent was fixed at Rs,750 per month.
2. Before the controller the application was resisted by the respondent, fair rent was fixed at Rs,3000 per month from Rs,350, on appeal preferred by the respondent rent was reduced as stated above.
3. At the hearing the landlady has filed her affidavit in evidence stated that the rate of the similar premises in the same locality has increased to Rs,4500 on account of cost of construction, labour charges repair charges as well as taxation of the Government and similarly Government Department had increased on monthly basis, the rent of the tenement in the vicinity had increased more than 3000%. In the cross examination it is admitted that, there was 18 shops in the building, the site office, undivided property whereas all the shops/offices have been vacated except shops involved in controversy as well as another- shop. She has also admitted to have paid 100% enhanced taxation including water and conservancy charges. With 136% enhancement in the last three years.
4. Mr. Nasir Ahmed attorney of the tenant whose affidavit in evidence was produced had admitted that rent of the premises was Rs,399 per month, at the time of inception of tenancy a sum of Rs,3,25,000 was paid as goodwill. Its value has increased with the passage of time. It is also specified that the rent of the surrounding shops is between Rs,500 to Rs,550 per month. His testimony is supported by respondent witness Noor Ahmed who has admitted in the cross examination that during past years cost of construction has increased. Tenants witness Farooq Lakhani has narrated the same facts in the cross examination, he has admitted that rate of rent of shop of offices has increased with the passage of time however he had denied the suggestion that the fair rent of disputed shop was not less than Rs,4500. Learned rent, controller allowed the application and fixed fair rent Rs,3000 which was reversed by the first appellate Court to Rs,750 per month.
5. Mr. Ali Mumtaz Shaikh learned counsel for applicant has contended that the application for fixation of fair rent can be granted on any ground, rise in cost of construction and repair charges and enhancement in the taxes. There is no distinction to the effect whether cost of construction was actually incurred or repairs were actually carried out, only factor would be rise in such cost. In this context reliance is placed on the case of Messrs Abdul Majeed Chawla and Sons v. Anwar Yahya (1990 M LD 1711), wherein it is observed that the various grounds contemplated in section 8(1) of Sindh Rented Premises Qrdinance 1979 may, cumulatively be considered for fixation of fair rent or, if it be just or proper, any of these grounds, to such extent as be relevant by itself may be found sufficient for fixation of fair rent. In the latter situation, however, if any other ground contemplated in section 8(1) Abid reacts aversely to a claim of fixation of fair rent such is not be ignored and has to be given due effect to, Similar view was expressed in the case of State Life Insurance Corporation of Pakistan v. Pakistan National Shipping Corporation (1993 CLC 1726) which was confirmed by apex Court reported in 2001 SCM R 1103, wherein it is observed 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. Discretion vested in the rent controller as well as appellate Court is, however, not arbitrary or whimsical such discretion 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 as the same depends on the facts and circumstances of each case.
6. Mr. Jamil Ahmed learned counsel for respondent has contended that no case for fair fixation of rent is made out by the petitioner as the documentary evidence available on the record suggests that the rate of rent at the time of the initiation of the proceedings under section 8 of the Ordinance was Rs,500 per month in the adjoining vicinity. It is next urged that the demand of excise and taxation department by virtue of the notices reflects that demised slops situated at MR-146/1 shows that entire demand of the Excise Departments of Rs,25662 of the entire building in the year 1977-78 therefore impugned judgment does not suffer from any illegality. All the four ingredients postulated in section 8 of the Ordinance have to be cumulatively taken into consideration for determination of fair rent for exercising judicious discretion cannot be applied mechanically. In the case of Noor Trade Corporation (Pvt.) Limited v. Abdul Ghafoor (1997 CLC 205), it has observed that section 8 of the ordinance provides that in case of fair fixation of rent to be taken into consideration but it is not necessary that all the four factors would be available in each and every case. On cumulative assessment undoubtedly the rate of rent of demised property situated at M.A. Jinnah Road, had priority so also there has been increase in the cost of construction, maintenance and repairs as well as increase in legal taxes or property taxes. Even'if the rent fixed by the First Appellate Court is taken into consideration it does not meet the demand of taxes or property tax, the landlady would have to pay. the taxes out of her own pocket which could never be the spirit of law. It is settled principle of law that this Court will not interfere with a finding g of facts unless recorded on mis appreciation of evidence. In any view of the matter, even if all conditions under section 8 are not available, it is borne out from the statement of the witnesses that the value of the property in such locality as well as taxes and maintenance charges have increased which accumulatively suggest that the appellant is entitled to the fair fixation of the demised shop. Adverting to the point raised by the learned counsel for appellant that from which-date the tenant would be liable to pay the fair rent the application for fair rent remained pending for more than 9 years, subsequent event are required to be taken into consideration in order to avoid multiplicity of litigation and for doing complete justice to the parties as laid down in the case of Wali Muhammad v. Interavia Pakistan Limited (2001 SCM R 671) landlord seems to have been satisfied with a fair rent fixed by the learned rent controller as observed above that the fair rent shall be operative from July 1998. In order to bring the rent of the premises at par to the prevailing rental value, in the locality as well as inflation condition in the country regards to section 9 of the ordinance has to be made whereby increase in rent can be made after a period of three years from the fixation of fair rent and such increase cannot be more than 10% per annum of the existing rent. The fair rent of the premises would at Rs,3000 and would remain operative for three years from July 1998 and shall be enhanced as contemplated under the law. In view of the above discussion the appeal is accordingly allowed. The order of the appellate Court and that of rent controller are modified to the above extent with no orders as to cost.