' ALI SAIN DINO METLO, J.--- On the application of the respondent, bearing Rent Case No,1106 of 2002 re: Messrs Pakistan National Shipping Corporation v.. Messrs Eastern Automobiles (Pvt.) Ltd., learned Senior Civil Judge-I, Karachi South, performing functions of Controller under the Sindh Rented Premises Ordinance, 1979 (Mrs. Moeen Bano Sodher) by her order dated 16-11-2006, directed the petitioner to handover possession of the rented godown, measuring 21000 sq.Ft., situated on the ground floor of Old Rally Building, Talpur Road, Off I.I. Chundrigar Road, Karachi, to the respondent within 90 days thereof, on the ground that it had not increased the rate of rent by 10% per annum from 1-1-1993. The learned Additional District Judge-VIII, Karachi (Mrs. Munawar Sultana) by her order dated 28-2-2007, passed in petitioner's F.R.A. No,377 of 2006, re: Messrs Eastern Automobiles (Pvt.) Ltd. v. Messrs. Pakistan National Shipping Corporation, upheld the order of the Controller for same reasons. The petitioner has challenged both the orders in the present constitutional petition.
2. Briefly, the facts are that the petitioner, who was occupying the godown as tenant of its sister company Messrs Trans-Oceanic Steamship Limited, continued to remain as tenant even after latter's nationalization and paid rent at the then existing rate of Rs,300 per month to the successor corporation i,e, the respondent No,l. In the year 1986, the respondent filed case, bearing Rent Case No,149 of 1987, re Messrs. Pakistan National Shipping Corporation v. Messrs. Eastern Automobiles (Pvt.) Ltd., for the fixation of fair rent and the learned Controller, by order dated 27-2-1989, fixed the fair rent at Rs,31,500 at the rate of Rs,1.50 per sq.Ft. And directed the petitioner to pay it with effect from the filing of the application on 2-2-1986.
3. On petitioner's appeal, bearing F.R.A. No,229 of 1993, re:Messrs. Eastern Automobiles (Pvt.) Ltd. v.
Messrs. Pakistan National Shipping Corporation, this Court, by its order dated 3-4-1997, disposed of the appeal in the following terms:---
(i) "The appellants shall pay rent at Rs,1.50 per sq.Ft per month from 1st January, 1990 for the godown premises in occupation of the appellants in old Rally Building;
(ii) the appellants shall pay rent from February, 1986 to 31st December, 1989 at the rate of Rs,1,000 per month for the premises in their occupation;
(iii) parties will be entitled to enhancement of rent hereinafter with mutual consent or in the alternative in terms of section 9 of Rented Premises Ordinance; and
(iv) the appellants will clear the entire 'arrears of rent within six months period and future rent will be paid regularly in terms of the agreement between the parties and in absence of the same, in terms of the Rented Premises Ordinance."
4. The petitioner cleared the arrears at the rate of Rs,1000 per month from February, 1986 to 31-12- 1989 and at the rate of Rs,31,500 from 1-1-1990 in terms of paragraph (i) and (ii) of the order within the prescribed period of six months.
5. After some time, the respondent asked the petitioner again to increase rent at the rate of 10% per annum from 1-1-1993 to which the petitioner did not agree and, therefore, the respondent filed the above mentioned rent Case, bearing No,1106 of 2002, for the ejectment of the petitioner on the ground that it had failed to increase the rent at the rate of 10% per annum from 1-1-1993. The Controller as well as the Appellate Authority directed the petitioner to handover possession of the godown to the respondent by holding that the petitioner by refusing to increase the rent at the rate of 10% per annum from 1-1-1993 had committed wilful default in the payment of rent.
6. The view taken by the two forums is manifestly wrong. Neither this Court directed the petitioner to increase the rent at the rate of 10 % per annum from 1-1-1993 nor the law required him to do so.
7. According to section 7 of the Sindh Rented Premises Ordinance, 1979, 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. By order dated 3-4-1997, this Court directed the petitioner to pay rent at Rs,1.50 per sq.Ft. Per month from 1-1-1990 further adding that hereinafter i,e, in future the parties will be entitled to enhancement of rent with mutual consent or in the alternative in terms of section 9 (ibid) and that the arrears shall be cleared within six months and that the future rent shall be paid regularly in terms of the agreement between the parties and in absence of the same in terms of the Sindh Rented Premises Ordinance, 1979.
9. According to the respondent, paragraph (iii) of the order required the petitioner to pay rent with effect from 1-1-1993 at the rate of 10 % over and above the fair rent fixed by it on 3-4-1997 and that the petitioner's failure to make such payment amounted to default in the payment of rent entailing ejectment. There is nothing like that in the order. The respondent has misunderstood it. So also the two forums below.
10. Rent can be fixed either by agreement between the parties i,e, the landlord and the tenant or by the Controller. A party, whether landlord or tenant, cannot unilaterally increase or decrease it.
However, any party can approach the Controller at any time for the determination of fair rent and the Controller, after taking into consideration the factors mentioned in section 8 (ibid), shall be free to fix the rent which may be equal to or more or even less than the existing rate. Nevertheless, under section 9 (ibid), once he has determined the fair rent, he cannot increase it before expiry of three years where after also he can increase it upto 10% per annum. There is no restriction on his power to decrease the rent which he can do at any time to any extent, taking into consideration the relevant factors.
11. The restrictions provided under section 9 ibid, regarding increase of rent after fixation of fair rent, do not mean that after expiry of three years there shall be automatic 10 % per annum increase in the rate of rent. The Controller may or may not increase the rent. He may increase it by less than 10% or may even decrease it.
12. The order passed by this Court on 3-4-1997 in petitioner's F.R.A. No,229 of 1993 does not say that the rent shall be increased by 10% per annum from January, 1993. The fair rent was determined on 3-4-1997 for two periods i,e,Rs,1,000 per month from February, 1986 to 31st December, 1989 and Rs,31,500 per month from 1st January, 1990 up to the passing of order on 3-4-1997.
13. Regarding future enhancement in rent the order says: "(iii) Parties will be entitled to enhancement of rent hereinafter with mutual consent or in the alternative in terms of section 9 of Rented Premises Ordinance."
14. It simply narrates the legal position for the guidance of the parties for enhancement of rent in future i,e, after the passing of the order on 3-4-1997. The use of words 'enhancement of rent hereinafter' clearly speaks of enhLcement after the passing of the order and leaves no scope for any argument about enhancement of rent again for any period before the passing of the order.
15. As neither the order passed by this Court on 3-4-1997 directed the petitioner again to increase the rent with effect from 1-1-1993 by 10% per annum nor the law required it to do so, the two forums below have wrongly ordered its ejectment. Their orders, therefore, cannot be sustained. It was for these reasons that, by a short order passed on 13-3-2008, the petition was allowed and the orders of ejectment passed by the Controller as well as the Appellate Authority were set aside.