ORDER The appellant, being aggrieved with the impugned order dated 13.12.2005 passed by learned Single Judge in Suit No. 824/2005, has resorted to file High Court Appeal under Order XLHI, Rule 1 of the Code of Civil Procedure, whereby C.M.A. No. 5131/2005 for grant of temporary "What is contended by Mr. Rizvi is that the agreed rent is Rs. 3,000/- and it is increased after 31.8.1987 by 20% per year, it is hit by the provisions of Section
10. I am unable to agree with his contention. Section 10 is not applicable to a case of increase in rent under an agreement on two grounds. Firstly the word "rent" may mean the rent fixed by a single indivisible contract covering two different periods by two different contracts entered into one after the original period (1.10.1986 to 31.08.1987) was over. Secondly, Section 10 relates only to the stipulation of a fine, premium or other like sum and does not concern itself with the payment of an increased rent, lt would therefore be not correct to apply the provisions of Section 10 to the facts of the case.
As there is no prohibition for the increase of rent by a contract between the parties in case where fair rent is not fixed, it cannot be said that the contract incorporated in tenancy agreement violated in any manner the provisions of Section 10. The contract therefore is not illegal and void. The Controller, in my opinion,- was correct in directing the appellant to deposit rent at the rate of Rs.
3,600/-."
For the foregoing reasons, I do not find force in the contention of Mr. Fasih-uz-Zaman, Advocate.
The appeal is dismissed; however, with the consent of parties request for twelve months period to vacate the demised premises is allowed subject to deposit of the arrears of rent as determined by the Rent Controller within 60 days and payment of future monthly rent at the rate inclusive of 10% enhancement after every 11 months along with the other charges recoverable as per terms of agreement and those paid for water by the other tenants as may become due and payable till the date of handing over the possession of the premises within the period of 12 months. Appeal dismissed.
2008
8. * Regarding the first question as to the installation of any air-conditioner and fixation of iron gate in the commercial premises would amount to "impair" the value of the premises. The meaning of word impair according to the Chambers 20th Century Dictionary, New Edition 1983 is that:- Impair means to diminish in quantity, value, or strength, to injure, to weaken, to become worse, to decay, to make worse, unsuitable, unfit, inferior.
Ln the instant case the air-conditioner was installed at the time of commencement of the tenancy so was the ison gate. While the landlord has been vigilant in all matters as no protest was made in this regard till the expiry of the period of rent agreement. Mr. Qamar-ul-lslam could not explain or satisfactory reply that the changes effected may be restored at the costs of the tenant at the time of handing over the possession of the premises even security amount is available with the landlord.
Under the circumstances, principles laid down in the case of Syed Qudrat Ali {supra) are attracted and no ground for grant of ejectment is made out and the finding is accordingly reversed.
9. As to the second question of the enhancement of rent at the rate of 10% after the expiry of every 11 months, the same has been clearly spelt out in the agreement between the parties although the aforesaid agreement was only for a period of 11 months yet the intention of the parties is manifest after expiry of every successive period of 11 months, the rate of rent is to be increased at the rate of 10%. This clause does not operate within the initial period of tenancy, lt comes into operation only on expiry of the terms of period of 11 months. There is no illegality in entry into contract so as to protect the future rights by the landlord with respect to his property when the agreement is entered into with free consent of the contracting parties, ln the of case Laus Deo Enterprises (supra), it has been observed that:- that in view of provisions of Section 17A of the said Act, the powers of enhancement vested in the exclusive domain and jurisdiction of the Rent Controller and the landlord had no power to increase the rent unilaterally without first seeking fixation of fair rent u/s 17(A) of the Said Ordinance. His next contention with respect to the ground of impairing of value of the building by fixing a steel door at the entrance of the premises. Mr. Fasih-uz-Zaman further contended that the premises was a commercial and in order to secure the same, the appellant affixed the steel door and locks right at the inception of the tenancy. These facts were well within the knowledge of the landlord. Likewise, the air condition was also installed at the same time but no objection was raised. He further contended that these minor alterations were necessary for enjoyment of the demised premises by the appellant which infect enhanced the utility of the premises. Even otherwise, the landlord holds security deposit to effect minor repairs necessary at the time of handing over the possession of the premises by the landlord. He placed reliance on the cases of Syed Qudrat Ali vs. Mst. Maqbool Fatima & 3-others (1989 CLC 599), Samiullah vs. Mian Muhammad Salee (1971 SCMR 725), Muhammad Yusuf vs. Muhammad Saghiruddin Qureshi (PLJ 1987 Karachi 260).
8. Mr. Qamar-ul-lslam Advocate; attorney and father of the landlord while opposing the appeal contended that the terms of tenancy agreement are enforceable even after expiry of the initial period of an agreement. Mere fact that the tenancy agreement expired did not amount to discontinuation of the said terms under which the premises was initially let out by the landlord to the tenant. He stressed that although the period of tenancy under an agreement was only for 11 months. Learned counsel has relied upon the cases of Muhammad Akbar vs. Shaikh Nasiruddin (1991 MLD 1338), Abdul Aziz vs. Yahya & 4 others (1993 MLD 1447), Mst. Nasima Begum vs. Ali Dost (PLD 1993 Karachi 137), Laus Deo Enterprises vs. Mrs. Suraya Jameel & another (PLD 1991 Karachi 309).
(i) Whether on the facts and circumstances of the case opponent is in default of rent if so to what effect?
(ii) Whether the opponent has violated the agreed terms of agreement dated 20.03 2000 if so to what effect?
(iii) Whether on the facts and circumstances of the case opponent damaged the property and carried out unauthorized alternations, if so to what effect?
(iv) Whether Rs. 7,100/- is fair rent of the said premises? .
(v) What should the order be?
6. Learned Rent Controller after recording his findings on commission of default in payment of rent and of causing damage to the property dismissed the prayer for fixation pf fair rent under Section 7 of the Cantonments Rent Restriction Act, 1963 made by way of interlocutory application during the pendency of the rent proceedings. On the basis of above findings, appellant was directed to vacate the premises while allowing the ejectment application.
7. Heard leamed counsel and perused the record. Contention of Mr. Fasih-uz-Zaman, learned counsel for the appellant, is that the rent of the premises was Rs. 6,500/-. The parties agreed to the rent under a written agreement and learned Rent Controller acted beyond his powers in modifying the terms and order for payment of rent at a with 10% enhancement after every 11 months. As such the order is liable to be set aside, ln support of his contention leamed counsel referred to the provisions of Section 17 of the Cantonments Rent Restriction Act, 1963. He further proceeded to argue that the jurisdiction of the leamed Rent Controller do not empower him to fix fair rent under the provisions of Section 17A of the said Act, however, such powers can be exercised under separate proceedings and not in the present case. Alternately, leamed counsel arqued
3. Rent of said premises was initially fixed under an agreement dated 11.3.2000 at Rs. 6500/- per month exclusive of water. Conservancy, electricity, gas, maintenance & telephone charges, initially for a period of 11 months. The agreement specifically provided that after expiry of 11 months, it may be renewed with mutual consent by both the parties with 10% increase in rent. On expiry of the period of 11 months, rent for three months at the rate of Rs. 6,500/- per month was tendered through pay order but was not encashed by the landlord.
4. Application for ejectment u/s. 17 of the Cantonments Rent Restriction Act, 1963, seeking ejectment of the tenant on ground of the default and effecting unauthorized of alterations therein was contested by the appellant. Tentative rent order was passed by the learned Additional Controller of Rents dated 07.06.2001, directing the appellant to deposit arrears of rent w.e.f. February, 2001 to May, 2001 @ Rs. 7,150/- per month within fifteen days and to deposit the rent for the month of June, 2001 @ Rs. 7,150/- and the rent for subsequent months at the same rate before 5th day of each succeeding month. As the rent case continued thereafter, the respondent moved an application u/s. 17(9) of the Cantonments Rent Restriction Act, 1963, seeking orders for striking off defence of appellant on failure to deposit rent from 24.4.2004 at the enhanced rate of 10%. The application was allowed on 7.8.2004. Aggrieved by the said order, appellant approached this Court by way of FRA No. 18/2004 which was allowed by this Court vide judgment dated 17.01.2005 after arriving at a finding that the Rent Controller did not possess the jurisdiction to revise the tentative order and to pass a second tentative order. Accordingly, the appellant was allowed to deposit rent at the rate of Rs. 7,115/- per month, which the appellant deposited tUI the final disposal of the rent case.
5. Ln the rent proceedings, following issues were framed:-- While the landlord had been vigilant in all matters as no protest was made in that regard till expiry of period of rent agreement--Charges effected may be restored at costs of tenant at time of handing over possession of premises even security amount was available with landlord-No ground for ejectment was made out and the said finding was reversed accordingly-As regards tq enhancement of rent, intention of parties was manifest after expiry of every successive period .Of 11 months, the rate of rent was to be increased @ 10%- There was no illegality in entry into contract so as he protect future rights by landlord with respect to his property when the agreement was entered into with free consent of contracting parties-FRA dismissed.
(Paras 8,9)
Key Terms:- Enhancement of rent.
[There is no illegality in entry into Rent Agreement regarding enhancement of rent].
For the Appellant: Fasih-uz-Zaman, Advocate.
For the Respondent: Qamar-ul-lslam, Advocate.
Date of hearing: 25th September, 2007.
ZIA PERWEZ, J.- This first rent appeal is directed against the impugned order of the Additional Controller of Rents Clifton Cantonment Karachi in Rent Case No. 15/2001, dated 09.09.2006, directing the appellant to handover the vacant and peaceful possession of the demised within 30 days while allowing the ejectment application.
2. Appellant is the tenant of respondent with respect to premises bearing Flat No. 2, 21-C, 27th Commercial Street, Tauheed Commercial Area, Phase-V, Defence Housing Authority, Karachi (hereinafter referred to as the "demised premises").
Riaz Ahmad Mansuri (supra), ln this case a suit for recovery of damages under fatal accident was decreed subject to deposit of Court-fee for a specific date failing which the plaint shall stand rejected, lt was, in this background that further time was not extended as valuable rights has accrued to the other side.
12. Ln the case .In hand substantial justice has been done. Landed property of illiterate women was transferred by their attorney to his own minor sons. Supply of Court-fee stamp was made by the illiterate, Pardanashin woman within a short span of time, when informed by her counsel. Court- Fees Act is not to be interpreted strictly to* arm litigant within weapon of technicalities against the opponent to frustrate recovery of revenue for benefit of State.
13. Ln view of the above discussion, the writ petition succeeds and Court-fee stamp supplied by the petitioner on 28-5-2005, will be deemed to be valid. ! Petition allowed. >K.L.R. 2008 Civil Cases 278 [Karachi] .Pfesent: Z1A PERWEZ, J.
Shaikh Muhammad Sadiq f Versus Mst Zarin Islam F.R.A. No.122 of 2006, decided on 25th September, 2007.
Cantonment Rent Restriction Act (1963)-- -Ss. 17, 7-Impugned order of eviction-Commission of default in payment of rent and of causing damage to property-Enhancement of, rent--Appreciation of facts & law-Validity-ln instant case air conditioner was installed at? Time of commencement of tenancy so was the iron gate-* suit for pre-emption was filed. Application for rejection of plaint under Order 7, Rule 11, C.P.C, was moved. The petitioner was directed to make up deficiency within 15 days. He aggrieved of instituted revision petition, which, too, was dismissed. He did not comply the order and filed application for extension of time under Section 148, CPC which was dismissed. Order was assailed in Constitutional jurisdiction. Lt was held that time can be extended if the Court has control over the tis. After its disposal, the Court becomes functus officio. Resultantly, time was not extended.
Ln Siddique Khan and 2 others (supra), the Honourable Supreme Court observed that an opportunity be granted to the party for payment of Court-fee before taking penal action, lt was held that, when considering options for exercise of discretion for grant of time for supply of deficiency in Court-fees, considerations relevant to bar of limitation not to be taken into account.
With exception of one all the case relied upon by the revision petitioners relates to pre-emption matter. The Honourable Supreme Court has categorically held in Siddique Khan and others that an opportunity must be granted before applying penal under Order 7, Rule 11, C.P.C.
Ln Noor Khan (supra), the pre-emption suit was decreed directing deposit of pre-emption money by a specific date. Time was extended but on failure to deposit decretal amount the matter went up to the Honourable Supreme Court, which affirmed the order of dismissal. Thereafter, an application for extension of time in deposit of pre-emption money was made which, was not allowed.
Syed Fazar Hussain and others (supra), was a case of delay in depositing sale price. On failure to deposit preemption amount in time, further period was not extended.
Ln Abdul Qudoos (supra), the Appellate Court had not granted time for payment of Court-fee, which lay in Its discretion, the Constitutional jurisdiction was not exercised.
8. Learned Trial Court decreed the suit for declaration filed by Mst. Hayat KhatoOn against Asif Nasrullah and another, etc. Beneficiary of the transaction. Undeniably, Nasrullah was the General Attorney. He transferred land in favour of his own minor son without adverting to the principal to seek his permission. Sale, thus, made was in utter violation of law declared in Fida Muhammad v.
Peer Muhammad Khan, deceased through legal heirs (PLD 1985 SC 341); Mst. Shumal Begum v. Mst.
Gulzar Begum and 3 others (1994 SCMR 818) and Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811) and was rightly struck down. Concurrent judgments and decrees of both the Courts below do not call for any interference in absence of any misreading or non- reading. The civil revision, thus, dismissed.
9. As far as writ petition is concerned, the petitioner (decree-holder) was directed by the Court to supply Court-fee stamp within stipulated period of 30 days from the date of judgment and decree i.e. 20-12-2004. He, however, supplied the Court-fee on 20-5-2005 of his own without intervention of the Court.
10. No consequence was provided iri the judgment and decree for failure of the petitioner to supply Court-fee stamp within stipulated period of time. The matter in regard to recovery of Court-fee was between litigant and the exchequer. No prejudice has been caused to the defendant/judgment-debtor, more particularly when amount for supply of Court-fee was deposited. Delay in supply of Court-fee stamp was neither wilful nor contumacious, and'in absence of any condition and consequence, will not frustrate the decree in a case of this naturb.
11. Reliance placed by revision petition to refuse enlargement of time on the strength of judgments relied upon in para. 4 are distinguishable and apply to the peculiar facts of the case, therein. A brief survey of the judgments cited are given, hereinafter. Muhammad Arif v. Additional District and Sessions Judge, Kasur and 2 others (supra). A with the judgment of the Court below. Decision rendered in revision was assailed in writ petition.
4. Learned counsel for the petitioner in Constitutional petition contends that judgment and decree of the Civil Court was not conditional and did n6t provide any penal consequences in case of non- deposit of Court-fee stamp, within stipulated period of 30 days, hence his suit otherwise decreed cannot be dismissed on account of this sheer technicality. He relied on Shah Wali v> Ghulam Din alias Gaman and another (PLD 1966 SC 983).
5. Leamed counsel for petitioner in civil revision (respondent in writ petition) argued that .Non- deposit of Court-fee stamp within stipulated time will, result into dismissal of suit. He submitted that time once fixed cannot be extended by the Court. Relied on Siddique Khan and 2 others v.
Abdul Shakoor Khan and others (PLD 1984 SC 289),. Abdul Quddoos v. Mst. Shabana Parveen and another . (1990 MLD 68); Mst. Ghulam Fatima and Mothers v. Talib Hussain and 3 others (1990 MLD 1782); Muhammad Arif v. Add!. District & Sessions Judge Kasur and 2 others (2001 CLC 192); Noor Khan v.
Khan Muhammad (2002 CLC 402); Syed Fazar Husasin and others v. Shaban and others (PLD 2004 Lahore 577) and Rahim Khan through legal heirs v. Habib Khan and another (2004 CLC 1044).
6. Ln support of civil revision argued that learned Courts below have erred in not apply correct law on the subject, which has occasioned injustice. Respondent in civil /evision (also writ petitioner) argued that verdict of Courts below in decreeing suit for declaration was in accord with the well- settled law on the subject as General Attorney, Nasrullah Khan transferred the dispute land in favour of. His own minor sons without seeking permission from the principal.
7. I have considered the submission of the learned counsel for the parties and perused the record.
Of votes as stated in document purporting to be.a statement of count in Form-XIV, in favour of the candidates mentioned therein are different from the statement prepared by the R.O. (at page 117 regarding thesame Polling Station). As against 74 votes in the formerdocument in the latter 161 votes are recorded in favour-of respondent No. 4 and as against 114 votes in favour of-the petitioner, 83 votes are recorded in the consolidated statement. Whereas Malik Irfan Ahmad candidate is shown to have polled 141 votes in the consolidated statement nil vote is recorded while the votes of Malik Tanvir Sultan candidate are recorded as 105 by the R.O. As against 4 votes recorded in the document at page 36. At several Polling Stations, whereas in the corresponding statements stated to have been supplied by the P.Os., no rejected vote is mentioned, vafious number of rejected votes are mentioned in the consolidated statement against the same Polling Stations. However, there is no difference in the validly polled votes shown in both the statements.
There is also a discrepancy of about 30 votes in the matter of P.S. No. 259. Relying on the said state of affairs it is being urged that the Election Commission ought to have exercised its jurisdiction and to have passed orders under Section 103-AA of the Representation of People Act, 1976, by allowing prayer of the petitioner for a partial re-poll and a direction to re-count the rejected ballot papers.
According to them, the provisions of Sections 38 and 39 of the said Act of 1976 have accordingly been violated and the violation being patent, the dismissal of the application filed by the petitioner by the respondent No. 1 is without lawful authority:
5. W6 have also examined the said three cases decided by the Hon'ble Supreme Court of Pakistan and being relied upon by the learned counsel for the parties. The consensus appears to be that primarily this Court would not interfere in an election matter in view of the provisions of Article 225 of the Constitution. However, in the case of Faqir Abdul Majeed Khan cited by Mr. Imtiaz Rashid Siddiqui an exception has been made to the said rule: We may note that in the said case of Faqir Abdul Majeed khan provisions of- Rule 36 of the Punjab Local Government Election Rules, 2005, came up for interpretation. Sub-Rule
(6) of the said Rule 36 stands reproduced at page 1722 of the report and we find that sub-section
(6) of 'Section 39 of the Representation of People Act, 1976, is almost couched in the same words except the mention of the District Returning Officer. The precise finding recorded by their Lordships is that a District Returning Officer had no lawful authority to direct a R.O. To re-count the rejected votes. This is so held in para-1 0 of the report at the same page, lt is further observed by their lordships in- para-14 of the report that the Returning Officer wrongly included the rejected votes in favour of the respondent before their lordships under the influence of the said direction issued by the District Returning Officer. Another striking aspect of the said case is that not only had the R.O.
Proceeded to treat some votes as valid but this Court dismissed the writ petition filed by the said Faqir Abdul Majeed Khan not only with reference to Article 225 of the Constitution but proceeded to uphold the decision on its merits as well, lt was contended before their lordships that the petitioner before them would not be having any case to take to the Tribunal in view of the findings recorded by this Court. . _ (
6. Reverting back to the present case, Annexure- G is the application, which was filed by the petitioner before the R.O. Lt alleges that some Presiding Officers are missing and it is apprehended that attempt has been made to change the results and a re-count ,be made and the results be prepared afresh. This application was filed on 20.2.2008 and was dismissed by the R.O. With the observation that the results have been consolidated and sent to the Election Commission. The Election Commission in its order dated 23.2.2008 has^observed that it is unable to record its satisfaction within the meaning of Section 103-AA of the -said Act of 1976.
7. Going by the finding recorded in the said case of Faqir Abdul Maieed Khan with reference to a provision Waris Baig V. Younis and others C.C. 297 (Muhammad Muzammal Khan. J.) which is in pari materia, the Election Commission would not be having the jurisdiction to direct a count or examination of the rejected/invalid votes. So far as the matter of said discrepancy being pointed out is concerned, the matter of determination has been entirely left to the respondent No. I, of course, subject to recording of satisfaction within the bounds of the said Section 103-AA and further as to whether any such illegality or violation is grave, presumably also has nexus with its effect on the result of the election. We, therefore, do not find tiny ground or reason being made out to interfere with the orders passed by the respondent No. 1 within the confines of these proceedings. Needless to state that th6 results of the elections have already been notified and Election Tribunals stand constituted, the petitioner can, of course, approach such a competent.
Tribunal with a properly constituted election petition where the entire allegations and objections can be gone into and determined in accordance with law. With these observations, the writ petition is disposed of. No orders at to costs. 'r .