' SADIQ HUSSAIN BHATTI, J.---Through this petition the petitioner has called into question the judgment dated 5-8-2009, whereby, though the rate of fair rent was fixed at Rs.15 per sq. Ft. As prayed by the petitioner, but the same was granted with effect from date of the passing of the order and not from the date of institution of the application for fixation of fair rent.
2. Brief facts of the case are that petitioner is owner of building standing on Plot No.16-CL-10, Dr. Ziauddin Ahmed Road, Karachi and respondent No.1, since 1-7-1980, is tenant of the petitioner in respect of a showroom premises measuring 2178 sq. Ft. Situated on the ground floor of the said building at the rate of Its.5 per sq. Ft. Per month. On 14-12-1991, the petitioner filed an application against respondent No.1 under section 8(1) of the Sindh Rented Premises Ordinance, 1979, being Rent Case No. 2054 of 1991, for fixation of fair rent at the rate of Rs.15 per sq. Ft. Per month from the date of institution of the rent case. The learned Rent Controller, after framing of issues, recording of evidence and hearing the parties, allowed the application of the petitioner and fixed the fair rent of the said premises at Rs.7 per sq. Ft. Per month from the date of the order i.e. 30-5-1998. The order of the Rent Controller dated 30-5-1998 was challenged by the petitioner in FRA No. 69 of 2008 which was also allowed by the appellate Court vide the impugned judgment and the fair rent was fixed at Rs.15 per sq. Ft. Per month but again the effective date was to be date of the order and not the date of the institution of the rent case. Through this petition, the petitioner only seeks that the fair rent may be fixed from the date of the institution of the rent case i.e. 14-12-1991.
3. Learned counsel for the petitioner submitted that the petitioner filed the rent case in the year 1991 and was vigilant in pursing its case and it was the respondent. No.1 who was using delaying tactics, therefore, the learned. Rent Controller was not justified in fixing the fair rent from the date of the order as the same should have been fixed from the date of the institution of the rent case. He submitted that delay in disposal of the rent case was caused by respondent No.1 and not by the petitioner. He also submitted that the fair rent should have been fixed from the date of institution of the rent case and, thereafter, recourse should have been made to section 9 of the Ordinance for increasing the rent after three years by 10% per annum. The learned counsel, in support of his contentions relied on the case of Victor Restaurant v. State Life Insurance Corporation and others (2010 SCM R 745) and Volkat (Pakistan) Limited v. Interavia Pakistan Limited (2001 SCM R 671).
4. On the other hand, Mr. Muhammad Yaseen Azad, learned counsel for the respondent No.1 supported the impugned judgment and the Rent Controller, exercising powers under section 8 of the Ordinance has been given ample powers to fix the fair rent from any date between the date of the institution of the rent case and the date of the order fixing fair rent. He submitted that the Rent Controller has exercised his discretion fairly and justly and the learned Appellate Court has concurred with him, therefore, the concurrent findings of the two Courts below cannot be disturbed in a constitutional petition. In support of his contentions, the learned counsel relied on the case of Masudah Jawad v. State Life Insurance Corporation and another (PLD 2007 Kar. 485) and Olympia Shipping Corporation of Pakistan v. State Life Insurance Company of Pakistan (2001 SCM R 1103).
5. The mechanism and procedure for fixation of fair rent is provided in section 8 of the Ordinance, which'reads as under:--
8. Fair rent.-(1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:--
(a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality.
(b) the rise in cost of construction and 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.
(2). Where any addition to or, improvement in, any premises has been made or any tax, or other public charge has been levied, enhanced, reduced or withdraw in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration."
6. Thus, no fetters have been placed on the Rent Controller or the Appellate Authority to fix the fair rent from any particular date.
7. In the case of Victor Restaurant (supra), it was held that:-- "5. In the normal circumstances, the fair rent is required to be enforced from the date of application, as the said date is the date from which the fair rent is to be determined after keeping in view the conditions mentioned in section 8 of the Ordinance. However, if the learned Rent Controller fixes the other date then he can take the date but for that he must assign reasons to do so. Thus there is no fault in the order of the learned High Court in concurring with the order of the Rent Controller. Therefore, the same is maintained." (emphasis is supplied)
8. In the case of Masudah Jawad (supra), a learned Single Judge of this Court held as under.
9. As stated above, the petitioner has not challenged the quantum of fair rent fixed by the appellate Court at the rate of Rs.6,400 and the only prayer made by her is to allow her to make payment of the said fair rent fixed from 21-9-2006 viz. The date of order passed by the Appellate Court. In view of the dictum laid down by the Honourable Supreme Court, date for payment of fair rent is to be fixed according to the facts and circumstances of each case and there is no hard and fast rule that fair rent is to be paid from the date of institution of rent application. Although the Rent Controller or for that matter the Appellate Court have been bestowed discretionary powers to fix fair rent from the date of institution of rent application or from the date of the order or even from a date in between the two events, as stated above, however such discretion is to be exercised judiciously and reasons should be assigned for fixing the fair rent from a particular date which, in the present case, are lacking. Neither the learned Rent Controller nor the Appellate Court has assigned any reason to justify the 'payment of fair rent from the date of institution of rent application.
10. From perusal of the impugned Judgment/Order, it is evident that no reasons have been assigned by the learned Rent Controller or the Appellate Court for fixing the fair rent from the date of the order. As per the law laid down by the Hon'ble Supreme Court, the fair rent is required to be enforced from the date of application but for fixing a date other than the date of the application, the Rent Controller is required to assign reasons.
11. In view of the above, I allow this petition and remand the case to the Rent Controller to give reasons for fixing the rate of rent from the date of the order. The Rent Controller is directed to decide the matter within three months. However, in the meantime, the respondent No.1 shall continue to pay rent at the rate of Rs.15 per sq. Ft. Per month and shall also pay the arrears of rent as per the impugned judgment, if not already paid. It is expected that both the parties will ensure that no unnecessary adjournments are sought by any of the parties.