1. ' MUNIB AHMAD KHAN, J.---Succinctly, the facts of the case, is stated in the rent application, are that the petitioner is tenant and respondent is landlord of shop No,18, admeasuring 654 sq. Ft. State Life Building No,8. Dundas Street, Saddar, Karachi (hereinafter referred to as the demised shop) at the rate of Rs,100 per month excluding electricity & water charges. The respondent in 1992 filed an application under section 8 of the Sindh Rented Premises Ordinance before the Rent Controller praying for fixation of fair rent of the demised shop at the rate of Rs,15 per sq. Ft. Per month from the date of institution of the said application. Petitioner contested the said application by filing the written statement thereby denying the liability to pay the rent as demanded. Both the parties led evidence, filed relevant documents, examined and cross-examined. The Rent Controller vide order dated 25-4-1998 determined monthly rent of the demised shop at the rate of Rs,1000 whereupon respondent filed FRA No,361 of 1998 in this Court challenging the order dated 25-4-1998. The said FRA was disposed of vide order dated 23-2-2001 .Whereby case was remanded to the Rent Controller to decide the matter afresh. Thereafter the Rent Controller framed the following issues:--
(i) Whether the Rent Controller has jurisdiction to entertain the case?
(ii) Whether to applicant is entitled for fixation of fair rent?
(iii) What should the decree be?
2. 'The Rent Controller vide order dated 14-7-2001 answered the Issues Nos.1 and 2 in the affirmative while on Issue No,3 fair rent was fixed at the rate of Rs,1100 p.m. From the date of the order. The respondent being aggrieved and dissatisfied with the above order filed FRA No,1448 of 2001 before the District Judge Karachi South who transferred the same to 1st Additional District Judge who allowed the same thereby fixing the fair rent of the demised shop at the rate Rs,15 per sq. Ft. Instead of Rs,1100 per month, hence this Constitutional Petition.
3. 'Learned counsel for the petitioner contended that there are conflicting judgments, one by the Rent Controller and the other by the Additional District Judge. He further contended that the learned Additional District Judge failed to follow properly the requirements for determination of fair rent and limit of fair rent. He further contended that the learned District Judge has totally ignored the applicability of sub-clause (2) of the clause 9 of SRPO. He further contended that the order of the Rent Controller is more reasonable and practicable having sanction of law and that the judgment of the Additional District Judge is liable to be set aside as it does not have any legal sanctity. He further contended that the finding of the Additional District Judge is based on misreading and mis- appreciation of evidence on record and misapplication of law relevant to the fixation of fair rent. He further contended that the comparison of rent by the Additional District Judge to a 'building at Abdullah Haroon Road was wrong and that the basis of determining fair rent in the instant case in comparing the location and valuation and importance is on the wrong notice and based on surmises and conjecture as such the Additional District Judge came to wrong conclusion and further contended that the fair rent ought to have been fixed from the date of the order. He further contended that the rent was paid on the lump sum basis at the rate of Rs,100 and not on per sq. Ft.
4. Basis while it has been fixed on sq. Ft. Basis which is not proper. It is further objected on the enhancement on the ground that only 10 per cent enhancement is provided under the SPRO and that the landlord has not submitted the supporting evidence to justify exorbitant enhancement.
5. ' On the other hand, learned counsel for the respondent controverted the arguments advanced by the counsel for the petitioner and fully supported the judgment of the Additional District Judge and contended that the order passed by him is speaking order in which he fixed fair rent after considering all the conditions which are provided under section 8 of SRPO. He further submitted that there is no limitation in respect to the quantum of rent which may be fixed in pursuance to section 8 of the SRPO and that is to be fixed keeping in view rent in the vicinity of similar premises.
6. He further submitted that there is spiral increase in the cost of construction and repair charges while new taxes have also been imposed twicely or thricely while the petitioner is paying constant rent since very long as he is tenant since decades back while rent application was filed in 1992 and since then also taxes have been increased. He further submitted that at the moment even the property tax of the respondent's premises is more than the rent, which has been assessed on the annual value of the premises. He further submitted that the premises in possession of the respondent is 645 sq. Ft. Which is equivalent to small flat and even a residential flat of this capacity is not available in rupees five or six thousand in the Saddar area whereas the premises in question is a commercial premises and if its area is multiplied by 15, then total rent would be Rs,9675, which too is much less keeping in view the market value. He further submitting that new State Life Building i.e, Building No, 11 on Abdullah Haroon Road is fetching rent of Rs,60 or Rs,70 per sq. Ft. He has relied upon (i) PLD 2005 Karachi 554; (ii) 2001 SCMR 1103; (iii) 1997 MLD 1004; (iv) 1991 MLD 644; (v) 1992 CLC 739; (vi) PLD 1988 Karachi 164; and (vii) PLD 2008 Kar.
100. Learned counsel specifically pointed out PLD 2008 Kar. 100 and submitted that in that case this Court was pleased to enhance the rent from Rs,300 per month to Rs,40 per sq. Ft. While the property is located in Saddar Bazaar, Karachi known as 'State Life Building No,5-B', Zaib-un-Nisa Street, Saddar Karachi. He further pointed out that the said building is in close vicinity to the building in which demised premises is located.
7. ' I have heard Mr. Ahmedullah Farooqui, Advocate for the petitioner and Ch. Waseem Iqbal, Advocate for the respondent.
8. ' After going through the judgments and the material available on record I find that the learned Additional District Judge has considered the whole evidence available on record while fixing the rent at the rate of Rs,15 per sq. Ft. Of the demised shop and that on typed page 8 of the judgment the Additional District Judge observed as under:-- "The opponent/tenant is in occupation of demised shop in between the two roads namely Sir Abdullah Haroon Road formerly known as Victoria Road on which Frere Hall, American Consulate are situated and the other one is Zaibunnisa Street formerly known as Elphiston Street and both i.e, Sir Abdullah Haroon Road and Zaibunnisa Street are heart of commercial activities in Karachi since days of partition or even before The shop is also situated in the hub of a dozen of shops of jewelers in shape of Jewelers Market which can be seen from and is approachable for Zaibunnisa Street......
9. This portion of Dundas Street is a very prime and commercial activities street of Saddar area and specially the portion between Sir Abdullah Haroon Road and Zaibunissa Street where dozen of jewelers are having shops market which ipso facto proves the prime importance by itself and needs no evidence."
10. 'With regard to production of relevant evidence, the Additional District Judge on typed page 9 of the impugned judgment has observed as under:-- ' In my humble opinion the applicant by producing above rent agreements in which applicant was himself landlord produced the same as such the argument of learned counsel for the opponent that tenants were not produced and examined is not maintainable. Further the distance between said premises and demised premises is about few hundred meters and very near to each other.
11. Whereas the fair rent @ Rs,15 per sq. Ft. Per month is also at very low ebb as compared to the rent of other premises regarding which landlord/ applicant produced as Exh.A/1 to A/5 which is more than double or about three times."
12. ' Perusal of the above portions from the impugned judgment shows that the Additional District Judge has considered all the relevant aspects of the case before fixation of the fair rent and no illegality or misreading of evidence has been pointed out by the counsel for the petitioner in the order passed by the Additional District Judge.
13. Besides above finding of the Additional District Judge, it is being observed that there is no limitation on the Rent Controller while fixing fair rent in term of section 8 of the SRPO and even rent of Rs,1 only can be enhanced to Rs,100 or Rs,1000 as same is to be done keeping in view the factors enumerated in section 8 as well as duration of time after which the rent application has been made. The contention of learned counsel for the petitioner that fair rent can be enhanced upto 10 per cent only is based on misconception as this condition is applicable to section 9 of SRPO, which provides that when fair rent has already been fixed then further increase will be after three years and will be limited to 10 per cent only. Section 8 of the SRPO is independent in nature and, according to its requirement, rent is to be fixed according to market value, which can be determined in view of four factors given therein, which are as follows:--
(a) The rent of similar premisis situated in the similar circumstances, in the same or adjoining locality;
(b) The rise in cost of construction 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.
14. ' Nowadays, it is open secret that cost of construction has been raised to manifold while property taxes have also been enhanced almost to more than 10 times while value of the gold can be an assessm ent tool, which has increased to a great height. It can also be judged that while fixing the fair rent location of the property and environmental value as well as attraction of general buyer is to be seen. The demised premises is located in the Saddar area, which by no means is lesser than to other commercial areas and fixation of rent at the rate of Rs, 15 per sq. Ft. Should not be a cause for hue and cry as such type of premises may not be available at the moment at the said rates.
15. ' In such a situation and keeping in view the authorities cited. I do agree with the finding of the learned Additional District Judge and dismiss this Constitutional petition.