' MIAN SAQIB NISAR, J.---These appeals, by leave of the Court, have genesis in the applications filed by the respondent-landlord against the appellants-tenants under section 8 of the Sindh Rented Premises Ordinance, 1979 (the Ordinance) whereby the enhancement of rent in respect of two shops under the tenancy of the appellants was sought. The shop involved in C.A. No,1197 of 2009 bears No,3-A measuring 238 square feet, having the rent of Rs, L466.66 at the relevant time, whereas in the other matter, it is Shop No,3, with an area of 176 square feet, but the rent is the same.
These shops are the part of a commercial building situated at Tariq Road, P.E.C.H.S. Karachi owned by the respondent, which was purchased by him some months before the initiation of the application under Section 8. The respondent in the applications asked for the enhancement of rent to the tune of Rs,2,70,000 and Rs,2,00,000 respectively of the said shops i,e, at the rate of Rs,1136 per square feet. Anyhow after receiving the reply of the appellants, framing of the issues the Rent Controller recorded the evidence of the parties. The respondent appeared as his sole witness and placed on record the photocopies of about three tenancy agreements, allegedly pertaining to some other tenancies in the area where the said shops are situate. The respondent also examined some witnesses to rebut the claim of the respondent. The learned Rent Controller however fixed the fair rent at Rs,50,000 per shop: The operative part of the order reads as:-- "The applicant in support of his contention has produced the tenancy/lease agreement of the similar type premises of the same vicinity, the same were not challenged by the opponent.
Considering the evidence and arguments advanced by the counsel for the parties and keeping in view of the fact and circumstances I am of the humble view that claim of the applicant of Rs,1,136 per square feet is not justify in the circumstances as discussed above the rate of rent Rs,1,466 paid by the opponent to the applicant is not too justify. In my view the applicant is entitled for the enhancement of the rent and present rate of rent Rs,1,466 is very meager. In view of the present highly inflated inflation in the country, I am of the view that the rate of rent Rs,50,000 per month is just and proper instead of Rs,270,000 claimed by the applicant from the date of institution of this fair rent case hence this point answered in affirmative."
' This enhancement was to take effect from the date of institution of the applications supra, anyhow, both the parties feeling aggrieved challenged the said order before the learned Additional District Judge, the appellants through appeals, whereas the respondent vide cross objections filed therein; the said Court while rejecting the appeal of the appellants and accepting the cross objections of the respondent has increased the rent to Rs,100,000 per month for each shop. It is pertinent to reproduce the relevant portion of the judgment:-- "It is the duty of the respondent to prove its case beyond doubt for which affidavit in evidence filed in trial Court he was subjected to cross-examine and the contention of the respondent remained unshaken. On the contrary appellant as opponent in the rent case while cross-examining admitted specifically the contention of the respondent in this case. Whereas it also material to look into the market prevail where the in question property situated so the demand of the fair rent by the respondent before the learned trial Court as well as in cross objection filed in this appeal as is the same which he prayed before the learned trial Court. Under the circumstances, if the evidence taken into consideration then it shows that appellant failed to prove his case that the rent of the similar premises in the same vicinity is of lesser footing than prayed by the respondent before the learned trial Court. However, it is the matter of fact that the premises is situated in the fashionable market having tremendous business and in any manner in the prevailing situation is not less than as show."
' These orders when further challenged by the appellants before the High Court in the constitution petitions have been modified to the extent of reducing the rent as is depicted from the judgment, but by relying upon section 9 of the Ordinance directed further increase in terms thereof. The operative part of the verdict is reproduced as under:-- "Upon examining the three agreements and generally what is prevailing in the commercial market is that where the area of the premises is smaller, per square feet rate is always higher. Apart from this reasoning in the difference of rate per square feet in the above-referred three rent agreements, the nearest shop to the premises in question is only 300 meter away which fetches rent @ Rs,188 per square feet (emphasis supplied by us). Furthermore, the shops in question are also on the corner of Tariq Road crossing which is prime area of Tariq Road. The area of each of the shops in question is only 238 square feet and the area of the nearest shop for which the rent is payable @ cif Rs,188 per square feet is 318 square feet, hence, taking into consideration the area of the said shop and the shops in question the rate of rent of the shops in question should be fixed slightly more than the nearest shop which pays rent @ of Rs,188 per square feet (emphasis supplied by us). Keeping in view that the shops in question are situated in the prime area of Tariq Road and located on ground floor of the building and comparing its area with the area of shop No, G-5 rent which fetches rent @ Rs,188 per square feet, the rent should have been enhanced to Rs,200 per square feet. The Additional District Judge enhanced the rate of rent to Rs,1,00,000 per shop without taking into consideration the evidence that has come on record, thus, the fixation of rent at the rate of Rs,1,00,000 per shop was not justified. I consider Rs,200 per square feet to be reasonable rent. The enhanced rent @ Rs,200 per square feet shall be effective from 24-5-2006 which is the date of the filing of the rent case. As more than three years have already elapsed, the landlord has also become entitled to the benefit under section 9 of the Sindh Rented Premises Ordinance, 1979. Section 9 entitles a landlord to get an enhancement in rent after three years to the extent of 10% per annum. Therefore, the rent after the expiry of three years from its fixation under section 8 of the Sindh Rented Premises Ordinance i,e, from 24-5-2006 when the rent case was filed shall be enhanced @ 10% per annum or 30% after an interval of 3 years. The rent therefore from 24-5-2009 onwards shall stand increased to Rs,260 per square feet."
Leave to appeal, in these matters, was granted on 11-9-2009 in the following terms:-- "Contends inter alia that the High Court in the exercise of its writ jurisdiction cannot modify the rent and which amount/rate has never been fixed by any of the three Courts below and also cannot enhance the rent under section 9 of the Sindh Rented Premises Ordinance, 1979 @ 10% per annum or 30% after three years as there are no findings to that effect of any of the Courts below.
' Leave to appeal is granted. Being a rent matter the appeal be fixed within two months on the present record with liberty to the parties to file any concise statement/additional documents, if any.
' In the meanwhile the rent @ Rs,50,000 P.M. Due for the onward period for each of the shop shall be deposited regularly before the rent Controller on or before 10th of succeeding month."
2. Learned counsel for the appellants-tenants has argued that the provisions of section 8 of the Ordinance have been misconstrued and Misapplied by the courts below The 'factors' which the learned Rent Controller should keep in view while fixing the fair rent are enumerated in the section {8(1)(a) to (d)} which are intertwined and inter-independent, these cannot be taken into consideration in segregation and isolation for the above purpose, rather the 'factors' (conditions) envisaged by the provision must co-exist, and so proved enabling the Rent Controller in fixing the fair rent, reliance in this behalf is placed on Abdul Ghaffar and another v. Mst. Noor Jehan Malik (1988 SCM R 1410), Volkart (Pakistan) Ltd. Karachi v. Interavia Pakistan Limited, Karachi (2001 SCM R 671), Mian Hussain Muhammad v. Col. Muhammad Ilyas and 7 others (1981 SCM R 1028) and Khyber Insurance Company Ltd. v. Pakistan National Shipping Corporation (PLD 1994 SC 725). It is also argued that in present cases though the appellants had contested the claim of the respondent and had joined issue with them over the amount of rent claimed and for this purpose an issue was framed, the parties also were allowed to lead evidence, but the respondent was unable to discharge his onus justifying the increase at the rate finally allowed, as the rent agreements of certain other properties allegedly similar in nature, situated in the same locality were not proved in accordance with law, rather only the photocopies of those documents were brought on the file, which even were not taken into evidence as no exhibit number was assigned to those; the only statement of the landlord, which is not an independent evidence, cannot be taken to be the conclusive proof for the determination of the fair rent. Resultantly, the Rent Controller could not base its finding on the 'issue of fair rent' on such inadmissible and partial evidence. He has further argued that the appellate Court has not even applied its mind to any part of the evidence purportedly adduced by the respondent to prove his case, it had not even judicially considered the pleas raised before it by the appellants and assigned no valid reason for further enhancement of the rent or affirming that already fixed by the Rent Controller. As regards the learned High Court, it is submitted that Court has primarily based its decision on a rent agreement particularly with regard to shop No, G-5 on the assumption that the area of such property is 318 Square feet, but this is not proved from any evidence on the record, therefore, the factual inference drawn by the learned High Court on the face of it is the result of gross misreading of the evidence on the record.
3. Learned counsel for the respondent-landlord has defended the impugned judgment, on the score that there are concurrent findings of facts recorded by the three courts below which cannot be interfered in the present jurisdiction; that the appellants have been given considerable relief by the learned High Court in the constitutional jurisdiction, such order being the final in the matter should not be interfered on technical grounds; that the appellants have not controverted the contents of the application under section 8 of the Ordinance filed by the respondent and, therefore, the evasive denial should be taken to be an admission on appellants part and thus the rule that fact admitted in the pleadings needs no proof should be applied to the case. Furthermore, that the respondent has submitted an affidavit to prove his case and in the affidavit it was/is conspicuously mentioned that the shops in question are situated in the prime commercial area of Karachi and it has a considerable value, which has arisen with the passage of time, the rate of the construction as also the tax has gone up tremendously; the rate of rent in the area of the similar property is Rs,1,136 per square feet. All these important facts stated in the affidavit (the examination-in-chief) were not subjected to cross-examination, therefore, those facts shall be deemed to have been admitted, thus notwithstanding that the rent agreements of the other premises were not strictly proved in accordance with law, the case justifying the increase in the fair rent stood duly established on the basis of such unchallenged oral evidence; no evidence worth the name to controvert the above had been adduced by the appellants, thus the orders of the courts below can be sustained on the basis of the oral evidence of the parties.
4. Heard. As far as the legal proposition involved in the matter about the interpretation of section 8 of the Ordinance is concerned, we are unable to agree with the learned counsel for the appellants that because plural has been used in the section (i, e. Factors) or the expression "any of the factors" is missing, thus on that account the section should be construed to mean that all the conditions envisaged by the section must co-exist before the Rent Controller should fix the fair rent. The clear language of the section is free from any ambiguity and there can be no other interpretation except that each of the 'factor' enumerated therein is an independent factor for the purposes of enabling the Rent Controller to make the fixation of the fair rent. It is neither the intention, purport, purpose of law nor the spirit thereof, that the factors should be construed and considered as integrated.
However, there can always be a possibility that where more than one of such factors are made the basis for the fixation claim, if those are prevalent and proved the Controller may determine the fair rent on the basis of more than one of such factors. Therefore, we are of the firm opinion that while fixing the rent the Rent Controller is not bound to consider and construe the factors provided in the section ibid as a composite whole, rather independent of each other, but it shall always be permissible that one factor may supplement the other facilitating the fixation of the rent by the Controller. We have considered the case-law cited by the learned counsel for the appellants ai the bar and find no enunciation of law therein as has been argued, to hold that all the factors are inseparable and must be taken together and on the proof of all only the fair rent can be fixed.
Therefore, we do not find any merit in the first plea of the learned counsel for the appellants, which is accordingly discarded.
5. Regarding other parts of controversy between the parties, we are not convinced that the documents on the basis of which the respondent sought the increase have been proved in accordance with law, only photocopies were placed on the record, which being C secondary evidence was inadmissible; besides that those were not proved in accordance with law, yet all the three forums below have primarily based reliance upon those documents in determining the fair rent, particularly the learned High Court; moreover there is no independent proof about the increase in the rate of construction and the value of the property, the taxes etc., except the bald and unsubstantiated assertion of the respondent, thus the orders passed by all the courts are speculative and based on inferences not supported by the evidence on the record. As far as the rent agreement about shop No, G-5 produced by the respondent is concerned, which primarily has prevailed with the learned High Court, again it is only a photocopy and it does not prescribe the specific area of the rented premises subject-matter thereof, on the basis of which the calculation of fair rent has been made by the said Court. It is argued by the counsel for the respondent that in the constitution petition before the learned High Court a sublease agreement of that property was also placed on the record by the respondent through a miscellaneous application, suffice it to say that no permission of producing additional evidence was sought by the respondent or was ever granted by the High Court, thus how could this document be looked into D by the Court when it was not a part of the record, in the constitutional proceedings (writ petition) arising out of the judicial or qusai judicial proceeding. It was not permissible for the High Court in the proper exercise of its jurisdiction to randomly pick up a document brought on the record otherwise than in accordance with law, and without providing fair opportunity to the other side to refute the same, base its decision thereupon. As far as the argument of the learned counsel for the respondent that irrespective of the documentary evidence there was/is sufficient oral evidence on the record on the basis of which the increase is justified and the impugned order can thus be sustained, suffice it to say that the courts below have not given much importance and weight to the solitary statement of the respondent in this behalf, so it shall be quite improper to uphold the impugned judgments/order on that account. We are also not persuaded that any admissions as envisaged by law have been made by the appellant in their written replies on the basis of which the fair rent as determined by the learned High Court/Rent Controller can be sustained, rather sufficient denial of the material facts in this behalf have been made in the replies. For the alleged omission to cross-1E examine the statement of respondent and the effect thereof is concerned, it is held that the general statement in the examination-in-chief, not containing the concrete and material facts, does not attract the rule, rather the rule shall be applicable where the specific and material fact of utmost importance, with significant impact on the case remain unchecked in the cross- examination, we find that this is not the position in the case in hand.
6. In the light of above, we are of the view that the applications of the respondent have not been disposed of on the basis of the legal evidence before the forums below, resultantly these appeals are allowed, the impugned judgments are set aside and the case is remanded to the learned Rent Controller for the decision afresh after enabling the parties to produce fresh evidence, if any, within a period of eight weeks as has been directed in the short order dated 11-4-2012. It may, however, be mentioned that the Rent Controller shall be justified in law as done before to order the fixation of fair rent with effect from the date of the institution of the applications under section 8 moved by the respondent. As a consequence of the above, there remains no reason to examine the judgment of the learned High Court in the context of section 9 of the Ordinance on the basis of which the leave was primarily granted. These appeals in terms of the above and the short order, which should be read as part of this judgment, are hereby allowed.