1. ' KHAWAJA NAVEED AHMAD, J.---This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. ' Brief facts of the case are that the petitioner is owner/landlord of a building constructed on Plot No,126, Block-8, Aliabad, Federal B Area, Karachi known as Murad Manzil. The petitioner had given a flat situated on the second floor of the building on rent to respondent No,1 in the year, 1985 on monthly rent of Rs,500. The covered area of the flat is 1200 sq. Feet consisting of three bed rooms each with attached bath, sitting room, dining room and TV lounge. The petitioner No,1 applied to the Rent Controller under sections 8 and 9 of the SRPO, 1979 vide Rent case No,639 of 2003 and had prayed that rent may be fixed at the rate of Rs,5,000 per month as in the locality the prevailing rent for similar accommodation was Rs,5,000 per month. He has further submitted that due to inflation and rise in the cost of living and increase in the taxes the rent of Rs,500 per month was inadequate and was even less than the taxes he was paying for the property. The learned IV-Senior Civil Judge and Rent Controller, Karachi Central upon pleadings had framed following issues:--
(1) Whether the rent of the similar accommodation situated in similar locality is Rs,5,000 per month and applicant is entitled to get fair rent up to Rs,5,000 per month?
(2) What should the order be?
3. ' The petitioner in order to prove his case had examined himself in Court. The respondent in rebuttal had filed written statement to the plaint and had examined himself on oath.
4. ' From the pleadings and evidence, which had come on record the learned Rent Controller had reached on the conclusion that application, is allowed. The operative portion of the order passed by the learned Rent Controller is reproduced hereunder:-- "In the above circumstances the application under disposal is allowed. Therefore in my view the fair rent of the premises is Rs,500 and increased water conservancy and other taxes from Rs,414 to Rs,1000. The application is disposed of accordingly."
5. ' The Rent Controller had maintained the rate of rent at Rs,500 per month, but was pleased to increase the water and conservancy charges from Rs,414 to Rs,1000. It is not understandable that on one hand the learned Rent Controller has written that application under disposal is allowed and on the other hand he maintains the rate of rent at the rate of Rs,500 per month.
6. ' However, being aggrieved from this order the petitioner had filed F.R.A. No,69 of 2005, which was transferred to learned III A.D.J., Karachi Central, who after hearing the parties was pleased to observe as under:-- "In view of above discussion I am of the opinion that the appellant/landlord has failed to bring on record sufficient material to prove his case for determination of fair rent at the rate as claimed. I do not find any illegality or irregularity in the impugned order. All the legal and factual aspects have been properly evaluated by the Rent Controller. Appeal in hand is devoid of merits and stands dismissed with no order as to cost."
7. ' The learned III-A.D.J., Karachi Central in his order dated 9-9-2006 has reproduced the requirement of section 8 of SRPO, 1979, which are being reproduce hereunder:---
(1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:--
(a) the rent of similar premises situated in the similar circumstances, in the same adjoining locality.
(b) the rise in cost of construction and repair charges.
(c) the imposition of new taxes, if any, after commencement of the tenancy, and
(d) the annual value of the premises, if any, on which property tax is levied.
(2) Where an addition to or, improvement, in any premises has been made or any tax, or other public charges have been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as bills of electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 to be determined or, as the case may be, revised after taking such charges into consideration."
8. ' The learned III-ADT Karachi Central has further observed as under:-- "On bare reading of the above provision it appears that the Rent Controller while fixing the fair rent, has to take into consideration all four factors specified therein and after giving due consideration to these factors can determine the fair rent. The Rent Controller in the impugned order has observed as under:-- "From the above evidence it has come to record that no repair and white wash has been carried out. The construction is pertaining to the year 1995, hence the ground taken in the application under section 8 of SRPO, 1979 for increase of rate of construction and expenditure of construction is not attracted in this case. The applicant has failed to produce any receipt/documentary prove that the rent of similar accommodation in the locality is Rs,5,000 even the rent receipts produced by the applicant does not bear the signature of landlord/rent collector. In the said receipt the rate of rent is claimed i,e, Rs,5,000 is not mentioned. The opponent admitted that the taxes are increase during the last 2-1/2 years and keeping in view that aspect of application I am of the opinion that the applicant is entitled for increase of rent on the ground of increase of taxes only.
9. ' In the above circumstances the application under disposal is allowed. Therefore, in my view the fair rent of the premises is Rs,500 and increased water conservancy and other taxes from Rs,414 to Rs,1000. The application is disposed of accordingly."
10. I have perused the pleadings as well as orders passed by the courts below and have heard Mr. Zafar Hadi Shah, Advocate. There are concurrent findings of both the courts below. It is settled law that the High Court in constitutional jurisdiction can reverse the concurrent findings of the courts below if the same are based on misreading or non-reading of evidence or the same are fanciful and are against the law laid down by the Superior Courts. Mr. Zafar Hadi Shah, Advocate has placed before me a case law reported in 1997 CLC 205, M/s. Noori Trading Corporation v. Abdul Ghafoor, where it has been held by the learned single Judge of this Court Mr. Justice Nazim Hussin Siddiqui (as he then was) as under:-- "A perusal of section 8 of the Ordinance reveals that in case of fixation of fair rent the four factors mentioned in the section are to be taken into consideration. It is, however, not necessary that all the four factors would be available in each and every case. For example, if fair rent is claimed on the basis of rise in cost of construction and repair charges this plea would not be available in the case where repairs were not carried out. Likewise a ground of imposition of tax after commencement of the tenancy would only be available after the new taxes were imposed. It is possible that all the four factors in a particular case may be available, but so could not be in all cases. It is pertinent to point out that in Civil Appeal No,818-D referred to above, the observations of Saleem Akhtar, J were considered and approved, wherein it was laid down that failure of the landlord to bring on record material evidence in respect of any of the four elements to show increase would not necessarily lead to the rejection of the application, but it may effect the quantum of fair rent. Thus, it is evident from above observation that application on any of the ground could be considered, though in such case the quantum of fair rent may be affected."
11. ' Mr. Zafar Nadi Shah has further relied upon 1993 CLC 1726 State Life Insurance Corporation v.
12. Pakistan National Shipping Corporation, wherein the learned Single Judge of this Court Mr. Justice Mukhtar Ahmed Junejo (as he then was) has observed as under:-- "A Rent Controller while determining fair rent has to take into consideration the rate of rent in the adjoining rented premises if such rate is equitable and just. The occupants of the premises in Muhammedi House, except those who have entered into fresh agreements of lease with the respondent, appear to be oblivious of the inflation since the precedings decade. Rates at which they paid rent ten years ago, cannot be guideline for the Rent Controller charged with fixing fair rent of the premises in litigation."
13. ' Learned counsel for the petitioner further relied upon judgment report in PLD 1987 Kar. 541 Mst.
14. Aqila Khatoon v. Abu Bakar Khan wherein the learned Single Judge of this Court Mr. Justice Muhammad Mazhar Ali (as he then was) has observed as under:-- "Mr. Rehan ul Hassan Farooqui learned counsel for the respondent submitted that section 8 is quite independent of section 9 and two cannot be read together for the purposes of determining of fair rent. In support of his contention learned counsel for the respondent placed reliance on the following cases of this Court: ' Muhammad Jameel v. Muhammad Raheem reported in 1987 CLC 176.
15. ' In this case Saeed-uz-Zaman Sddiiqui, J. Held: ' It is quite clear from the language of section 8(2) of the Ordinance, section 9 of the Ordinance that the determination of fair rent in the circumstances mentioned in this subsection is uncontrolled by the provision of section 9 of the Ordinance. Section 9 of the Ordinance which comes after section 8 of the Ordinance begins as follows:-- `Where the fair rent of any premises has been fixed...........
16. ' It is therefore, quite clear that section 9 is applicable only where fair rent of any premises has already been fixed by the Controller. It is also clear that fair rent when once fixed cannot be further increased except as provided in section.
17. ' It is settled rule of interpretation that ordinarily the proviso or subsection should be governed by the operative portion of the section. A subsection will, therefore, ordinarily embraces the field which is covered by the main provision. There is nothing in the language of subsection (2) of section 9 of the Ordinance, to suggest that it was intended to deal with the subject-matter outside the scope of main enacting part. There is equally no indication in the language of this subsection to justify the inference that although it is enacted as a subsection of section 9, but it should read as an independent provision applicable to rest of the Ordinance. The expression "in any case" in section 9(2) in my humble opinion is not apply to fair rent under section 8 of the Ordinance. The increase in rent referred to in subsection (2) of section 9 has reference only to cases where fair rent has already been fixed by the Rent Controller and the landlord again applied for increase of such fair rent. It cannot be overlooked that the rental values of many premises let out some fifteen to twenty years ago have become highly disproportionate to the existing rental value of these premises. The legislature was aware of the situation while enacting Ordinance XVII of 1979. It is, therefore, quite clear that in order to give relief against such disparities in the rental values of premises the Rent Controller were authorized to fix fair rent of premises in accordance with the existing rent of the premises situated in similar circumstances in the same or adjoining localities. The rise in the cost of construction, imposition of new taxes and annual values of the premises assessed by the property tax. If the argument of the learned counsel for the respondent is accepted then in spite of the fact that on consideration of the circumstances mentioned in sub-clauses (a) to (d) of subsection (1) of section 8 of the Ordinance, the Rent Controller may reach the conclusion in a given case that the "fair rent" should be fixed three or four times of the existing rent, but he will not be able to do so. This clearly could not be the object of the legislature, I, therefore, find no substance in the submission of the learned counsel of the appellant that the fair rent to be fixed by the Rent Controller under section 8 could not in any case exceed 10% of the existing rent.".
18. ' In another case i,e, 1995 M LD 181, (Karachi) Shakeel. Adilzada v. S.M. Rafi the learned single Judge of this Court Mr. Justice Rana Bhagwandas (as he then was) observed as under:-- "I am clear in my mind in holding that under the law it is not at all necessary that all the four grounds must co-exist in each and every case for fixation of fair rent. There may be cases in which there is no enhancement in the fixation of annual rental value by the Excise and Taxation Department or increase in taxes by a local body which would not be a ground for not fixing fair rent of the premises at the instance of one of the parties. The ratio of the decision of the Supreme Court lends support to this view which is even otherwise binding on this Court. In the present case learned Controller having taken into consideration the rent of similar rooms, in the same building has arrived at a just and fair conclusion which cannot be interfered with in the exercise of appellate jurisdiction. Appeal is accordingly dismissed."
19. ' Similarly in another case law 1987 CLC 2182, Abdul Ghaffar v. Noor Jahan Malik the learned single Judge of this Court Mr. Justice Muhammad Mazhar Ali (as he then was) observed as under:-- "The submission of the learned counsel to the effect that clause (a) of subsection (1) of section 8 lays down that the Rent Controller can take into consideration only the rent of similar premises situated in similar circumstances, in the same area or adjoining locality exclude the premises situated in the same building in which the premises in question is situated, has no merits."
20. Learned State Counsel has no objection for enhancement or fixation of fair rent.
21. ' From the foregoing it is clear that both the Courts below have misread the evidence or have not properly appreciated the same. It is even in common knowledge that the rate of rent in Karachi has increased during last 20 years and presently a two rooms flat in a posh locality is available on the monthly rent of Rs,10,000 to Rs,15000, while similar accommodation in Federal B, Area and Nazimabad is available at the rate of Rs,5000 to Rs,7000 per month. However, keeping in view the old tenement and condition of the building in question I enhance the monthly rent from Rs,500 to Rs,2500 per month and taxes and conservancy at the rate of Rs,1000 per month. The tenant has to pay Rs,3500 per month. Keeping in view the financial condition of the litigant I will not order enhancement from the date of filing of the application because that period comes to near four years and it will be difficult for a lower middle class family to pay the arrears on enhanced rate. The enhancement is allowed from the month of March, 2008. The tenant is required to pay monthly rent at the rate of Rs,2500 and water and conservancy charges at the rate of Rs,1000 per month from 1- 3-2008 till he continues to remain tenant under the law.
22. ' Petition No,S-504 of 2006 stands disposed of.