1. DR. RANA MUHAMMAD SHAMIM, J. --- The petitioners have filed these petitions against common judgment dated 30.10.2006 passed by learned District Judge, Karachi East whereby F.R.A. Nos. 9, 10, 11 and 12 of 2005 were allowed and the common order of learned Rent Controller dated 23.12.2004 passed by learned IV- Rent Controller, Karachi East in Applidations Nos. 135, 136, 137 and 138 of 2002 was modified to the extent that the fair rent was enhanced from Rs. 1500/- and Rs. 1200/- to Rs.
2. 3000/- for each flat. Brief facts of the case are that the petitioners are tenant of respondent No. 1 who filed application. Under Section 8 of Sindh Rented Controller for fixation of fair rent at Rs. 5000/-. The grounds raised in the application are that the premises is located to posh residential area of the city and the rent of such premises has considerably enhanced; that the prevailing rent of the similar premises situated in the similar circumstances in the same locality is very high; that due to inflation, the cost of construction, repair and maintenance charges are increased manifold; that the KMC (City District Government Karachi) and KW&SB, Taxation Department and other charges of the government have increased.
3. The petitioners have refuted the claim of respondent No. 1 and have stated that they are old tenants on payment of huge amount as Pugree; that the applicants have already repeatedly enhanced the rent and in the year 1990 parties entered into an agreement whereby amicably the rents were . Fixed with 10% increase every year and the petitioners are regularly paying the rent with 10% increase after every three years, the agreement was entered into writing which has been placed on record. They have also denied the claim of respondent No. 1 that the demised premises is situated in a posh area and pleaded that the area in which it is situated is a middle class locality.
4. They have stated that the rooms of the flats are small with a store and single bathroom and the rent they are paying is reasonable. They also pleaded that they themselves are maintaining the demised premises and not the respondent No. 1. They have further alleged that the office-bearers of respondent No. 1 are blackmailing,them to extort the money and avoiding receipt of rent hence constrained under the circumstances they are depositing the rent in M.R.C.
5. Both the parties led their evidence who were duly cross-examined by the respective counsel. The learned Trial Court framed following points for determination:-
(1) Whether the applicant is entitled for fixation of fair rent, if so at what rate?
(2) What should the order be?
6. The learned Trial Court after hearing Learned counsel for both the parties allowed the application, however, the fair rent was fixed at Rs. 1500/-. Respondent No. 1 challenged the said order in appeal which was allowed and the fair rent was enhanced to Rs. 3000/- per month, which judgment is impugned in these petitions.
7. On service of notice of this petition, respondent No. 1 put an appearance by filing objections to the petition. It has supported the impugned judgment and besides other grounds, pleaded that the petition is not maintainable in view of the law laid down by the superior Courts.
8. Learned counsel for the petitioner has supported the order of learned Trial Court and has contended that the Appellate Court has erroneously enhanced the rent up to Rs. 1500/-. He contended that the impugned judgment is bad in law; that the finding of the learned Appellate Court with regard to the agreement; that the Courts below have misread and misappreciated the evidence on record; learned counsel further contended that the case of the .Petitioner is that in the year 1990 the petitioners themselves approached the office-bearer of respondent No. 1 and the matter was amicable settled and the rent was enhanced to Rs. 450/-with. 10% increase after every three years but this fact has not been considered by the Courts below. He further contended that the decision of the representative of respondent No. 1 has been treated as an agreement and thus the Courts below have misread the evidence which makes the impugned judgment liable to be set aside. He further contended that the maximum rate of rent in the vicinity is Rs. 950/- and the petitioner has given such details in his examination-in-chief which have not been challenged. He further contended that the witness of the respondent is not trustworthy as he has not given replies to the questions regarding the locality during his cross-examination.
9. On the other hand, learned counsel for respondent No. 1 has supported the impugned judgment. He contended that the learned Appellate Court has attributed the inflation and raise in cost of construction as the basis of enhancement of rent which, in the circumstances, could not be rebutted neither in the petition nor during the course of arguments by learned counsel for the petitioner. He then contended that by the petition is not maintainable as no misreading or non- reading of evidence is pointed out by the learned counsel for the petitioner. In support of this contention learned counsel placed reliance on the cases of Wages v. 1st Additional District Judge (South) and another (2004 YLR 3278) and Muhammad Ikram v..Rent Controller (2004 CLC 1326).
10. From the perusal of impugned judgment it appears that the learned Appellate Court has based his judgment firstly on the point that the evidence on record requires appraisal in order to determine fair rent. It is a settled principle of law that for determining the fair rent it is the duty of the learned Rent Controller to see the rent of similar premises situated in the similar circumstances in the same of adjoining locality; the rise in cost of construction and repair charges; the imposition of taxes and the annual value of the premises as enumerated in Section/8 of the Sindh Rented Premises Ordinance, 1979 and 4-or which appraisal of the evidence is required. Even both the learned counsel for the parties have not dispute this finding of. The Appellate Court.
11. As regards factual aspect of the matter, learned Appellate Court in his judgment has examined the evidence available on record, both oral as well as documentary.
12. On the first factor i.e. The rent of similar premises situated in the similar circumstances, in the same or adjoining locality, respondent No. 1 has relied upon an agreement dated - 15.1.2002 in respect of Flat No. 405 situated on 4th Floor, Iqbal Arcade, D.M.C.H. Shaheed-eMillet Road, Karachi, of which the rate of rent is Rs. 5000/-. The burden to prove this document was on the respondent No. 1, which he failed. Neither tenant nor the landlord of the said flat was examined to prove its genuineness. Merely producing tenancy agreement without some tangible evidence is not sufficient to prove the same. If has also not come on record that the flats in question are situated in the similar circumstances. Such observation finds mention in the impugned judgment and the contention of learned counsel that the Appellate Court though has discussed this agreement but has not giving any finding has no substance.
13. As regards the remaining factors i.e. Rise in cost of construction and repair charges, imposition of the new taxes and the annual value of the premises, no documentary proof has been produced by the respondent No. 1 to substantiate its claim that the rent of the demised premises should be Rs.
14. 5000/-. However, the fact of inflation and rise in cost of constructions has not been denied in the written statement by' the petitioner. Even otherwise, If it is admitted that the maintenance and repair are being carried out by the petitioners, in my humble view rent of Rs. 1200/- appears to be low keeping in view the price hike culture prevailing in our society. Contention of the petitioner that since there is agreement dated 16.2.1990 regarding enhancement at the rate of 10% after each 3 years, the rent cannot be enhanced, has rightly been discarded in the impugned judgment on the ground that no attesting witness was examined in respect of such agreement.
15. Above are the reasons of my short order dated 3.3.2008. .