1. ' ARSHAD NOOR KHAN, J.--- This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner, thereby challenging the legality and validity of the judgment, dated 24-9-2007 passed by the learned III-Additional Distridt Judge, Karachi-South in F.R.A. No,564 of 2001 (old F.R.A. No,87 of 2000) whereby the appeal filed by the petitioner was allowed and rent of the premises in possession of respondent No,1 was fixed at the rate of Rs,10 per sq. Ft. Per month thereby setting aside the order, dated 30-9-1999 passed by the learned VII-Rent Controller, Karachi-South in Rent Case No,1456 of 1991 State Life Insurance Corporation v. Messrs Ahmed and Brothers thereby the fair rent was fixed by enhancement of 100% of rent of the demised premises.
2. ' The facts, as stated in the petition, in brief are that the petitioner is a body corporation 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,3/SR/4, in the city of Karachi known as State life Building No,4, Shahrah-e-Liaquat, Karachi. Respondent No,1 is the tenant in respect of Shop No,1 in the aforesaid building since 21-1-1972 at the rate of Rs,320 per month and is in possession of 230 sq. Ft. Of the said shop, excluding electricity charges. It is further stated in the petition that the building is situated in the heart of commercial area of New Challi where mostly the offices of well repute business, firms, banks and other bodies are situated. It is further stated in the petition that the rent in the same vicinity, where the shop of the respondent No,1 is situated is ranging in between Rs,16.50 to Rs,18-00 per sq. Ft. Per month excluding electricity charges. It is further stated in the petition that the cost of construction, repair and maintenance charges have been increased manifold than the prevailing at the time of letting out of the said shop to the respondent No,
1. It is further stated in the petition that the Government has enhanced the property tax at the rate of 5% of annual rent of the demised premises and Karachi Water and Sewerage Board have also increased water, conservancy and fire charges as such the rent application for fixation of fair rent was filed before the learned Rent Controller.
3. ' The respondent No,1 was served with the notice of the petition, who, inter alia, denied the assertion of enhancement of taxes, conservancy and other charges as claimed by the petitioner and that the premises cannot fetch the rent as claimed by the petitioner. The maintainability of the rent application was also challenged before the Rent Controller.
4. ' After pleadings of the parties, the petitioner filed affidavit-inevidence of Peer Khan Sajid son of Barah Khan being their Deputy Manager, Real Estate Division, who produced so many documents including lease agreements executed in between them with other tenants. He was cross-examined at great length and the side of the petitioner was closed. The respondent No,1 filed his affidavit-in- evidence Who was also cross-examined. The learned Rent Controller after evaluation of the evidence available on record framed the following points for determination at the time of passing the judgment:--
(1) Whether the applicant is entitled for fixation of fair rent?
(2) What should the fair rent of the demised premises?
5. ' The learned Rent Controller after hearing of learned counsel for parties, allowed the rent application thereby fixing the rent at 100% above the rent paid by the respondent No, 1.
6. ' Being aggrieved and dissatisfied with the order dated 30-9-1999 passed by the learned Rent Controller, the petitioner preferred First Rent Appeal before the learned District Judge, Karachi- South, who entrusted it to the learned III-Additional District Judge, Karachi-South, who after hearing the learned counsel for the parties, allowed the same and fixed the rent at the rate of Rs,10 per sq.
7. Ft. Per month, vide judgment dated 24-9-2007. The petitioner still aggrieved and dissatisfied with the aforesaid fixation of fair rent has preferred the present petition with the prayer to enhance the rent to the tune of Rs,16 per sq. Ft. Per month.
8. ' I have heard Mr. Rizwan Ahmed Dodani, Advocate for the petitioner, who vehemently contended that the learned Appellate Court observed that the evidence available on record was considered in its true perspective but still instead of fixing the fair rent at the rate of Rs,16 per sq. Ft. Per month, he has fixed the rent to the tune of Rs,10 per sq. Ft. Per month, which is contrary to the documentary evidence available on record. According to him the rent of the similar premises in the adjoining locality is ranging in between Rs,16 to Rs,50 per sq. Ft. Per month and the learned lower Court was not justified in fixing of meagre fair rent of the demised premises. According to him the property tax, betterment tax and conservancy charges have been enhanced so many times above the rate at which the property was rented out to the respondent No,1 as such the evidence available on record has not been considered properly by the learned Appellate Court as such the order passed by the lower Court is liable to modify by fixing the fair rent at the rate of Rs,16 per sq. Ft. Per month.
9. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
10. 'The petitioner has sought fixation of fair rent of the shop in possession of the respondent No,1 situated in State Life Building No,4, Shahrah-e-Liaquat, Karachi under section 8 of the Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred to as "the Ordinance, 1979". The section 8
(ibid) postulates four conditions, which are to consider by the Rent Controller while fixing the fair rent of the rented premises. Section 8 (ibid) is usefully quoted herein below for the sake of convenience:--- ' Section 8 Fair Rent.--- The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:--
(i) the rent of similar premises situated in the similar circumstances, in the same adjoining locality;
(ii) the rise in cost of construction and repair charges;
(iii) the imposition of new taxes, if any, after commencement of the tenancy; and
(iv) The annual value of the premises, if any, on which property tax is levied.
11. ' A perusal of section 8 (ibid), shows that all or any one condition of section 8 of the Ordinance, 1979 must exist or co-exist with each other so as to fix the fair rent of the premises in question, for which the landlord is under obligation to adduce cogent, convincing and independent evidence to prove that the rent of the premises in possession of his tenant is less than the rent of similar premises situated in the adjoining vicinity of his premises and for the said purpose it is not mandatory that all the four conditions mentioned in section 8 (ibid), must co-exist with each other. The petitioner has led the evidence of his witness namely: Peer Khan Sajid, who filed his affidavit-in-evidence before the Rent Controller. The evidence of P.W. Peer Khan Sajid shows that all the rent agreements produced and relied upon by the petitioner are the documents regarding the tenancy in between them and other tenants in respect of the premises situated in different areas of the city. Admittedly the shop in possession of respondent No,1 is situated in State Life Building No,4 Shahrah-e-Liaquat, Karachi whereas in para.6 of the affidavit-in-evidence the rent agreement in between the petitioner and Messrs Prime Commercial Bank has been relied upon which building is situated at Abdullah Haroon Road, known as State Life Building No,11 as such this building in any way could not be treated the building situated in the adjoining locality where the shop in dispute is situated. In paras.7 and 8, of the affidavit-in-evidence, the petitioner has relied upon the execution of rent agreements in between them and Messrs Bankers Equity Limited and Messrs I.D.B.P. And both these tenements are situated in State Life Building No,11, Abdullah Haroon Road, Karachi, which, as discussed above, are not situated in the adjoining locality of the shop in possession of the respondent No,
1. In paras.9, 10 and 11 of affidavit-in-evidence, the petitioner has also relied upon the rent agreements executed in between them arid Messrs PICIC Ltd. And Messrs First National City Bank Ltd., Karachi, with regard to the tenements situated in State Life Building No,1-C, Lackie Road, Off. I. I. Chundrigar Road, Karachi. The said assertion contained in the affidavitin-evidence again shows that the tenements let out to Messrs PICIC Ltd. And Messrs First National City Bank are situated in different building situated in different vicinity as such it could not be equated with the vicinity of State Life Building No,4. Shahrah-e-Liaquat, Karachi where the shop in possession of the respondent No,1 is situated. The witness of the petitioner has again produced rent agreement in between them and Messrs Romfry & Sons in para.12 of his affidavit-in-evidence, in respect of the premises situated in State Life Building No,I-B, Lackie Road, Off.
12. ' I. I. Chundrigar Road, Karachi, which as discussed above, is not situated within the vicinity of shop in possession of respondent No,
1. In paras.13 and 14 of his affidavit-in-evidence. P.W. Peer Sajid Khan has also produced rent agreements executed in between them and Gul Ahmed son of Muhammad Siddique and Messrs Eastern Federal Union Insurance Co. And the said tenements are situated in State Life Building Nos.6-A and 6-B of Talpur Road, Karachi, which again are not situated within the vicinity where the shop in possession of respondent No,1 is situated. Admittedly the petitioner has so many tenements in different areas of the city and the value and utility of each area of the city could not be equated with each other, so as to fix the fair rent in view of section 8 (bid). The evidence led by the petitioner, therefore, shows that not a single document has been produced to show that the premises situated in the same vicinity where the shop in possession of respondent No,1 is situated, bears the rent claimed by them, so as to fix the fair rent and all the documentary evidence produced by the petitioner relates to the other tenements situated in different areas of the city and no evidence is available on record to determine that what is the exact and prevailing market value of the property in possession of respondent No,1, for the purpose of fixation of fair rent.
13. ' The petitioner has also not examined any witness from Excise and Taxation Department in respect of their contention regarding market value of the premises for fixation of annual rental value of the shop in possession of respondent No,
1. The rent agreements, as discussed above, produced by the witness of the petitioner shows that the quantum of rent has been mutually agreed in between them and mutual agreement regarding fixation of rent in between them at their own whim and wish, does not mean that the said premises bears the said market value, at which they had agreed as needy person may pay much more rent than the actual rent prevailing in the market. They may agree for an exorbitant rent according to need, requirement and exigency of their business and sometimes the tenant is ready to pay much more rent than the actual rent of the premises for the reason that the said place is better for establishment of his business. In absence of any independent evidence from the Excise and Taxation Department, or from any other quarter, it C could not be said that the market value of the property in dispute is the similar, which is being claimed by the petitioner.
14. ' The learned Appellate Court while modifying the judgment passed by the Rent Controller, has taken into consideration all the relevant factors for the purpose of fixation of fair rent and the learned counsel for the petitioner has completely failed to point out any illegality or irregularity in the judgment passed by the learned Appellate Court so as to declare it as illegal, inoperative and ultra vires to the Constitution.
15. 'The learned counsel for the petitioner has emphasized that on the basis of evidence available on record some other view, in the shape of enhancement of rent, is possible, which, in my humble opinion, is not sufficient ground to interfere in the judgment passed by the learned Appellate Court, as in constitutional jurisdiction interference could not be made by this Court merely on the ground that some other view is possible on appraisal of evidence available on record.
16. ' For the foregoing reasons, I am of the opinion that the judgment passed by the learned Appellate Court does not suffer from any illegality, so as to declare it illegal, inoperative or ultra vires to the Constitution. The petition has, therefore, no merit and the same is hereby dismissed, summarily.