1. ' ARSHAD NOOR KHAN, J.--- By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan,1973, the petitioner has challenged the legality and validity of the order passed by the learned VII-Additional District Judge, Karachi-South dated 17-9-2004 passed in F.R.A.
2. No,464 of 2001 State Life Insurance Corporation of Pakistan v. Messrs Habib Safe Deposit Vault (Pvt.)
3. Ltd. Whereby the appeal was dismissed against the order, dated 13-5-2000 passed by the learned VII-Rent Controller, Karachi-South in R.C. No,23 of 1992 whereby the fair rent of the rented premises was fixed to the extent of Rs,5 per square feet per month.
4. ' The facts, as stated in the petition, in brief are that the petitioner is a body corporate established under Article 11 of the Life Insurance (Nationalisation) Order No,X of 1972 and by virtue of Article 15 thereof, is the owner and landlord of the building constructed on Plot bearing survey No,SR-2 (New No,1/1-D/E), Serai Quarters, known as State Life Building No,6, M.A. Jinnah Road, Karachi. In the year 1986 the premises of office admeasuring 184 sq.Ft. Was rented out to the respondent No,1 in the year 1968 at the rent of Rs,92 per month, excluding electricity charges separately payable by the tenant. On 1-11-1972 the petitioner became the owner and the landlord of the said premises by operation of law. The rent of the premises was Rs,166 per month which comes to Re.0.90 per sq. Ft.
5. Per month. It is further stated in the rent application that the rent prevailing in the market similar to the rented premises is ranging in between Rs,10 to Rs,14 per sq. Ft. Per month excluding electricity charges and there is likelihood that the said premises in possession of the respondent may easily fetch Rs,12 per sq. Ft. Per month. It is further stated in the rent application that cost of construction, repair, maintenance has been increased and the Government has also imposed increased taxes and that the Government has fixed annual rental value of the building at Rs,4,29,890 upon which the property tax is being recovered, as such the petitioners filed application under section 8 of the Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred to as the "Ordinance, 1979", for fixation of the fair rent @ Rs,10 per sq. Ft. Per month from the date of filing of the rent application.
6. Respondent No,1 was served with the notice of the rent application, who categorically denied the claim of the petitioner and stated that after inducting him as tenant, the petitioner did not carry out any repair work, white-wash etc. Nor the building was constructed by the petitioners so as to say that the cost of construction was increased by that time. It is further stated by him, in written statement that the petitioners have increased the rent so many times and the property in his possession cannot fetch such exorbitant rate of rent as Rs,10 per sq. Ft. Per month.
7. ' After pleading of the parties, the parties led their evidence in pro and contra to their respective claims and the petitioners produced certain lease deeds executed in between them and other tenants. The Rent Controller after appraisal of the whole evidence brought on record, accepted the claim of the petitioners and fixed the rent of the premises in possession of respondent No,1 at the rate of Rs,5 per sq. Ft. Per month vide order, dated 13-5-2000. The petitioners being highly aggrieved and dissatisfied with the said fixation of fair rent, preferred first appeal before the learned lower Court, who after examination of whole evidence available on record, dismissed it, hence, the present appeal.
8. ' I have heard Mr. Mian Mushtaq Ahmed, Advocate for the petitioners and Mr. Muhammad Hamid Hussain, Advocate for respondent No, 1.
9. ' Learned counsel for the petitioner has vehemently contended that both the learned lower Courts did not consider the lease deeds, Annexures "P-12" and "P-14" to the present petition, which were executed by the petitioner with other tenants of the same building at the rate around of Rs,16 per sq. Ft. Per month, as such the evidence available on record has not been considered properly by both the learned Courts. According to him the cost of the construction has been increased and the Government has increased taxes and has fixed the tax of the building to the tune of Rs,4,29,890 as such the evidence available on record has not beep considered in its true perspective by the learned lower Courts. In support of his contention, he has relied upon the case of Messrs Olympia Shipping and Weaving Mills Ltd. v. State Life Insurance Co. Of Pakistan reported in 2001 SCM R 1103 and the case of Abdul Ghaffar v. Noor Jehan Malik reported in 1987 CLC 2182.
10. ' Mr. Muhammad Hamid Hussain, Advocate for respondent No,1 has contended that the possession of the demised premises has been handed over to the petitioners by respondent No,1 on 31-3-2006 as such the present petition has become infructuous. He further contended that the learned lower Courts after considering the whole aspect of the case, passed the order impugned herein and no illegality and irregularity is apparent on the face of the record so as to interfere in the findings recorded by the learned lower Courts.
11. ' I have considered the arguments advanced by the learned counsel for the parties and have gone through the entire material available before me.
12. ' Admittedly both the learned lower Courts have fixed the fair rent of the property in possession of respondent No,1 to the tune of Rs,5 per sq. Ft. Per month after taking into consideration the whole evidence available on record. Both the learned Courts below heavily relied upon the admission of the witness of the petitioners namely: Peer Khan Sajid son of late Bahar Khan, who in his cross- examination has admitted that the lease deeds, Annexures "P-12" and "P-14" do not relate to the building in which the premises in possession of respondent No,1 is situated. He also admitted that the buildings mentioned in Annexures "P-12" and "P-14" are situated at Abdullah Haroon Road, whereas the premises in possession of respondent No,1 is situated at M.A. Jinnah Road. The said admission of the witness of the petitioners shows that the agreements relied upon by the petitioners do not relate to the buildings situated in the surroundings of the building in possession of respondent No,1 as such the learned lower Courts rightly excluded the said evidence from the consideration while fixing the fair rent of Rs,5 per sq. Ft. Per month. The petitioners have not produced any independent witness of the locality where the premises in dispute is situated in support of their version, so as to fix the fair rent according to their own choice or to say that the order passed by both the lower Courts are the result of misreading and non-reading of evidence.
13. The petitioners have also not examined any witness from the 'Excise and Taxation Department, in support of their contention regarding market value of the premises for fixation of annual rental value of the property. The petitioners heavily relied upon the rent agreements executed in between them and other tenants, which in fact do not relate to the building in question, even the rent exorbitantly agreed by the parties with their mutual consent at their own whim and wish does not mean that the said exorbitant rent is the market value of the property for the purpose of fixation of fair rent, for the said purpose the best criteria to fix the market value of the property could be to lead evidence from the Excise and Taxation Department, who is the concerned authority to fix the value of the premises 'according to the market value. In the present case all the agreements, relied upon by the petitioners, are the agreements executed by them with other tenants, out of their own free will and choice which, in my humble opinion, could not be treated as market value of the property where the property in possession of respondent No,1 is situated. Admittedly in the building where respondent No,1 is running his business, so many other tenements are situated and the fixation of the annual rent by the Government does not mean that said annual rent was fixed by the Government for the property in possession of respondent No,1 exclusively. Both the learned lower Courts have, therefore, rightly considered the evidence available on record. The concurrent findings of both the learned lower Courts could not be disturbed in constitutional jurisdiction of this Court. In case, if any authority is needed, reference may be had to the case of Muhammad Sharif v.
14. Muhammad Afzal Sohail reported in PLD 1981 SC 246, wherein the Honourable Supreme Court was pleased to observe that the Tribunal constituted under the statute has power to decide' the matter rightly or wrongly and mere fact that on reappraisal of the evidence by. The High Court some other view is possible, is not sufficient ground to interfere in the findings of the said Tribunal and the High Court cannot interfere in the findings under the constitutional jurisdiction. The said observation of the Honourable Supreme court is fully attracted to the circumstances of the present case. The learned counsel for the petitioners has relied upon the case Messrs Olympia Shipping and Weaving Mills Ltd. (supra) in support of his contention that the learned Rent Controller can fix the fair rent after considering the whole evidence available on record. The said case of Messrs Olympia Shipping and .Weaving Mills Ltd. Has been decided by the Honourable Supreme Court after consideration of four conditions mentioned in section 8 of the Ordinance, 1979 and was pleased to observe that it is not obligatory that all the four conditions of section 8 (ibid), would co-exist while fixing the fair rent of the demised premises. Both the learned lower courts seems to have applied the mind in the light of the observation made by the Honourable apex Court in the case of Messrs Olympia Shipping and Weaving Mills Ltd. (supra). In the case of Abdul Ghaffar (supra), it was observed, that any instance of similar premises situated in the same building was the best circumstance or factor to be given due consideration for fixing fair rent of premises in dispute, which, in my humble opinion, is distinguishable to the circumstances of the present case, as the evidence which has been led by the petitioner relates to some other buildings, situated in different areas, as such the case of Abdul Ghaffar (supra), is of no avail to the petitioners.
15. ' For the foregoing reasons, I am of the opinion that the orders passed by the learned lower Courts do not suffer from any illegality, so as to declare them illegal, inoperative or ultra vires to the Constitution. The petition has, therefore, no merit and the same is hereby dismissed, with no order as to costs.