' MUHAMMAD SADIQ LEGHARI, J.--- The facts relevant to this order are that appellant Kazi Abdul Rasheed the predecessor-ininterest of the appellant was tenant of respondent Fazal Ellahi in respect of Shops Nos.56 and 57, First Floor of Building known as Pakistan Handicraft Chambers, 251- R.A, Lines, Abdullah Haroon Road, Karachi (hereinafter referred to as "the premises" or "the demised premises"). The rent mutually agreed for the premises was Rs,372 per month i,e, Rs,2.32 per sq. Foot.
2. In August, 2000 landlord Fazal Ellahi filed an application under section 7 of the Cantonments Rent Restriction Act, 1963 (Rent Case No,58 of 2000) before the Controller of Rents Cantonment, Karachi for fixation of fair rent. After issuing notices through ordinary modes and publication in newspapers Kazi Abdur Rasheed was declared ex parte vide order dated 11-6-2002. By the same order Additional Controller of Rents appointed Commissioner for ascertaining the fair rent of the premises. The Commissioner submitted his report, on 18-3-2003. After considering that report and the evidence produced by the landlord, the learned Additional Controller of Rents passed final order on 13-4-2004 whereby he fixed fair rent at the rate of Rs,1,200 per month.
3. About six months after that order the landlord filed an application for eviction of the tenant (R.C.
No,11 of 2004) on the ground of default in payment of rent. Thereafter the tenant put appearance in that case and also filed application for setting aside the fair rent order passed ex parte on 13-4- 2004. The learned Additional Controller of Rents dismissed that application on 6-9-2005 by very short order, which is reproduced below:- 'Parties counsel present. Arguments of the counsel heard. Application dismissed. File be consigned to record."
4. After that present appeal has been filed for setting aside the order passed on 6-9-2005 upon the application and for setting aside ex parte order fixing fair rent on 13-4-2004. After notice the respondents arguments have been heard for deciding the appeal of Katcha Peshi stage.
5. Mr. Raja Muhammad Basharat, Advocate appearing for the appellant has contended that although there is no specific provision for filing application to get the ex parte order set aside, yet the making of such application is not barred only for the reason that appeal is provided under section 24 of the Cantonments Rent Restriction Act, 1963. He further argued that when final order in Rent Case was passed ex parte and an application for setting aside that order was dismissed the time for filing appeal against the final order will start from the day of dismissal of that application.
In support of his contention he referred to the case of Muhammad Siddiq reported in 1984 CLC 2236. '
6. The respondent/landlord's learned counsel raised preliminary objection of limitation arguing that the thirty days period fixed for filing appeal under section 17 of Cantonments Rent Restriction Act, 1963 started from 13-4-2004 the date of final order passed by the Additional Controller of Rents Cantonment in Rent Case No,58 of 2000 and not from the date of dismissal of an application for setting aside that order. Continuing with his arguments he contended that the order fixing the fair rent in the rent case was passed on 13-4-2004 and present appeal was filed on 15-10-2005, therefore, it is much beyond the limitation fixed by section 17 of the Act.
7. The contention of Mr. Raja Basharat has substance in it. Undisputedly, the final order in Rent Case No,58 of 2000 was passed exparte. The tenant/appellant filed an application for setting aside that order on the ground that he was not served with a notice of rent case. Learned Controller of Rent dismissed that application without considering the plea of "no service of the notice". He should have considered the plea while deciding that application. Thus, the order passed by the Additional Controller of Rent on the application for setting aside ex parte decision is not legal.
8. In the circumstances, the appeal against the order fixing fair rent could be filed within thirty days from the dismissal of the application for setting aside the ex parte decision. That order was passed on 6-9-2005 and present appeal was filed on 15-10-2005. The endorsement on the true copy shows that application for supply. Of true copies was made on the very day i,e, 6-9-2005 and copy prepared on 7-10-2005. If the time taken for preparation of the copies is excluded the appeal is within period of thirty days.
9. Now, I proceed to examine the order whereby the fair rent was fixed. By that order monthly rent was enhanced from Rs,372 to Rs,1,200 per month which on the face of it is in violation of subsection
(4) of section 7, Cantonments Rent Restriction Act. The said provision imposes restriction from increase of rent more than 25 per cent of the rent already being paid, while fixing the fair rent.
Obviously, the order fixing the fair rent is in violation of the law and cannot be sustained.
10. Mr. Muhammad Afzal, Advocate appearing for the respondent/ landlord had no arguments against the law point that while fixing fair rent the increase was not to go beyond 25 per cent of the rent already being paid by the tenant.
11. In the light of the above conclusions the order fixing the fair rent is hereby modified and the fair rent is fixed at the rate of Rs,465 per month from the date of filing of rent case No,58/2000. The arrears be deposited within one month. If not deposited already in case the arrears have been deposited and the current rent is also being deposited at rate of Rs,1,200 per month the difference amount shall be refunded to the tenant. With this order the appeal is accepted at Katcha Peshi stage.