' GULZAR AHMED, J.---By this petition for leave to appeal, the petitioner has challenged the judgment dated 22-5-2013 of a learned Judge in Chamber of the High Court o Sindh at Karachi by which Constitution Petition No,S-1371 of 2011 filed by the petitioner was dismissed and the order of the learned Rent Controller upheld by the Appellate Court fixing fair rent was maintained.
2. The learned counsel for the petitioner firstly contended that in determining the fair rent of the premises, it was incumbent upon Rent Controller to have considered all the factors as mentioned in section 8 of the Sindh Rent Premises Ordinance, 1979 (the Ordinance) and that no fair rent could be fixed by merely adverting to one or two factors of the said provision. He further contended that all the three Courts below have misread the evidence and the respondent No,1-landlord has failed to establish that the fair rent of the premises was required to be fixed and there was no prayer in the rent application that the rent be increased to Rs,6,000 per month and thus the rent could not be increased. In support of his submission, the learned counsel has relied upon the cases of Mst.
Muneera Kaleemuddin and 4 others v. Muhammad. Mahmood Alam and another (1991 SCM R 1028), Abdul Hamid v. Abdul Ghani (1992 M LD 1588), Abdul Ghaffar and another v. Mst. Noor Jehan Malik (1988 SCM R 1410), Habib Bank AG Zurich v. Nazir Ahmed Vaid and others (2007 M LD 131), Allies Book Corporation through L.Rs, v. Sultan Ahmad and others (2006 SCM R 152), Haji Abdullah and 10 others v. Yahya Bakhtiar (PLD 2001 SC 158) and Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others (2012 SCM R 954).
3. We have considered the submissions of the learned counsel and have gone through the record.
The matter relates to a shop in a building situated on Plot No,5-E-25, Commercial Area, Paposh Nagar, Karachi. Admittedly the building belongs to respondent No,1, while petitioner is a tenant of shop on the ground floor of the said building. The respondent No,1 filed an application under section 8 of the Ordinance for fixation of fair rent against the petitioner before the learned Rent Controller, Karachi Central. It was inter alia averred in this application that entire ground floor and a portion comprising of one shop having two shutters was rented out to the petitioner vide rent agreement dated 21-6-1988 on the rent of Rs,600 per month and since then there was no enhancement of rent. In para-5 of the application, it was claimed that prevailing rent of the premises in question is not less than Rs,25,000 per month and that fair rent be fixed after taking into consideration similar premises situated in similar circumstances in adjoining and rising construction and repair charges and the annual value of the premises. In the prayer clause respondent No,1 prayed that the fair rent of the premises be fixed accordingly. The application was contested by the petitioner, who filed written statement and denied the claim of the respondent for enhancement and fixation of the fair rent. Respondent No,1 filed affidavit in evidence and produced as Exh.P/4, the tenancy agreement dated 15-12-2008 between one Jameel Ahmed and Messrs Dollar Industries (Pvt.) Ltd. In respect of ground floor premises of building on Plot No,5-E/13, Commercial Area, Paposh Nagar, Nazimabad, Karachi. The respondent No,1 was cross-examined.
The respondent No,1 also filed affidavit in evidence of two witnesses, namely, Jameel Ahmed and Muhammad Masood Ahmed Qureshi, who both were also cross-examined by the counsel for the petitioner. The petitioner appeared as his own witness. On conclusion of the evidence and after hearing the counsel for the parties, the learned Rent Controller through order dated 11-10-2010, allowed the application and fixed the fair rent at Rs,6,000 per month and directed the petitioner to pay the same from the date of filing of the rent case. The petitioner filed first rent appeal, which came to be dismissed vide judgment dated 17-11-2011 of the learned 1st Additional District Judge, Karachi Central. The constitution petition filed by the petitioner in the High Court also came to be dismissed by the impugned judgment.
4. So for the first submission of the learned counsel for the petitioner is concerned, the learned counsel in this respect has relied upon the case of Abdul Ghaffar (supra) by which this Court has granted leave to appeal to consider the question as to whether the Rent Controller while dealing with an application under section 8 of the Ordinance is required to take note of all the factors which are enumerated under the said provision for fixing of a fair rent. Learned counsel further relied 5. upon the case of Abdul Hamid (supra), which is a judgment of a learned Single Judge of the High Court of Sindh, wherein reference has been made to a decision of this Court in the case of Mst.
Muneera Kaleemuddin and 4 others v. Muhammad Mahmood Alam and another in C.A. No,818-K of 1990 and others decided on 6-6-1991. The relevant portion of which reads as follows:-- "In the present case, we have noticed that the learned Rent Controller solely determined the question of fair rent on the basis of the alleged prevalent rent, which was not warranted by law. In this regard, reference may be made to the case of Banarsi Silk Cloth v. Mst. Amna Bai 1986 CLC 1570, wherein one of us (Saleem Akhtar, J.) has held that it is incumbent on the Rent Controller to take into consideration all the four factors specified in section 8 of the Ordinance. However, we may observe that the failure of the landlord to bring on record material in respect of any of the above four elements to show increase would not necessarily lead to the rejection of an application, but it may affect the quantum of fair rent."
' The learned counsel has further relied upon the case of Habib Bank (supra) on this point, which too is a judgment of a learned Single Judge of the High Court of Sindh. The learned counsel has also referred to the case of Abdul Rehman (supra) to support his proposition that the tenancy agreement produced by respondent No,1 as Exh.P/4 being a photocopy ought not to have been relied upon by the Courts below as it was inadmissible evidence. Incidentally, this very judgment of this Court has elaborately dealt with the question of cumulative consideration of all the factors enumerated in section 8 of the Ordinance and while dealing with it Court has observed as follows:- - "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 purpose of enabling the Rent Controller to make the fixation of 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 at 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. It is pertinent to note that in the case of Mst. Muneera Kaleemuddin noted hereinabove this Court has observed that the failure of the landlord to bring on record the material in respect of any of the four elements to show increase would not necessarily lead to the rejection of an application but it may affect the quantum of fair rent. In the case of Abdul Rehman (supra) this controversy seem to have been rested with lucid pronouncement that the Rent Controller is not required to consider all the factors of Section 8 of the Ordinance as a composite whole rather these factors are independent or each other and in a given case may be supplemented for the purpose of fixation of a fair rent. Thus the submissions of the learned counsel for the petitioner on this point needs no further consideration.
6. As regard the second submission of the learned counsel for the petitioner that Courts below have misread the evidence in fixation of the fair rent, the only three instances were referred in this regard, firstly that Jameel Ahmed was described as tenant in the impugned judgment and secondly Exh.P/4 was not proved and was inadmissible in evidence and, thirdly, the area of two shops one in occupation of the petitioner and the other shop in the building of Plot No,5-E/13, was not established. So far mentioning by the learned High Court in the impugned judgment Jameel Ahmed as tenant apparently is not fatal rather appears to be a based on a slip of a tongue as in the first place respondent No,1 has produced document Exh.P/4 an agreement of tenancy dated 15-12-2008 by which Jameel Ahmed as landlord has rented out premises on the ground floor of his building on Plat No,5-E/13 to Messrs Dollar Industries (Pvt.) Ltd. Jameel Ahmed himself has also appeared as a witness in this case and specifically stated that he is the landlord of the building on Plot No,5-E/13. This aspect of the matter that Jameel Ahmed was the landlord never came to he disputed and the Rent Controller in its order has described Jameel Ahmed as the landlord, who has rented out the premises to Messrs Dollar Industries Ltd. In view of this overwhelming and undisputed evidence on record that Jameel Ahmed was the landlord of the premises on Plot No,5- E/13, merely mentioning him as a tenant in the impugned judgment by the learned High Court will not change the actual status of Jameel Ahmed and even this cannot be treated as misreading of evidence by the learned Judge of the High Court rather it appears to be only a slip of a tongue while dictating the judgment. As regard the point that Exh.P/4 was not proved. It may be noted that the original of this document was produced by respondent No,1 in his evidence and the learned Rent Controller after seeing the original has returned the same and kept its photocopy on the record and has also marked it as Exh.P14. Jameel Ahmed, who is one of the signatory of this agreement has also been produced by respondent No,1 and he too has admitted this document.
Both to the respondent No,1 so also to Jameel Ahmed, suggestion was made in cross-examination that Exh.P/4 is a forged document, which fact was denied by both of them. Learned counsel has contended that once a suggestion of document being forged was made by the petitioner, it was incumbent upon respondent No,1 to have proved the document by leading evidence that it was not a forged document. As noted above the original of Exh.P/4 was produced before the learned Rent Controller on seeing the original its photocopy was retained and no objection was raised from the of the petitioner regarding the production of Exh.P/4. The bald suggestion that it is a forged document will not itself establish that the document is forged nor the burden will shift upon respondent No,1 to establish that it is not a forged document. In any case respondent No,1 by producing the original of Exh.P/4 and by examining the one of the signatory of this document has amply proved the proprietary of Exh.P/4. As regard the submission that Exh.P/4 was inadmissible in evidence for the reasons that the photocopy of it, was produced as noted above, the original of Exh.P/4 was produced before the learned Rent Controller, who after seeing it, has returned the same and has marked its photocopy as Exh.P/4. Once this document was exhibited without objection from the side of the petitioner, it cannot be termed as inadmissible evidence.
7. As regard the submission of the learned counsel that the area of the two shops one in possession of the petitioner and the other on Plot No,5-E/13 of which tenancy agreement Exh.P/4 was produced to show that its rent was Rs,6,000 per month as against the rent of Rs,690 being paid by the petitioner, it has come on the record that both the shops are situated.On the same road and rather are opposite to each other. It may be noted that in the cross-examination of respondent - No,1, it is mentioned that the area of the ground floor of the premises in question is 66 square yards and a suggestion was made that the agreement Exh.P/4 does not mention the area of the premises rented out under it. No suggestion was made that the area of the premises rented out by agreement Exh.P/4 was less than the area in occupation of the petitioner and therefore, no presumption can be drawn that its area was less than the one in occupation of the petitioner because had this be so there would have been a suggestion to the petitioner or Jameel Ahmed that the premises of the agreement Exh.P/4 was of lesser or larger area than the one occupied by the petitioner.
8. As regard the fast submission of the learned counsel that no relief was sought in the rent application and, therefore, the learned Rent Controller was not justified in increasing rent or fixing the fair rent, it will be appropriate here to reproduce the prayer made by respondent No,1 in his rent application.
"(a) Determine the fair rent of the premises by taking consideration of the similar premises situated in the vicinity and fix the fair rent with effect from September, 1996.
(b)order the opponents to pay rent at enhanced rate with effect from September, 1996 and onwards for illegal occupation of the property in question till physical peaceful and vacant possession of the property in question.
(c) Order the opponents to pay interest / markup at the rate of 20% on arrears of rents with effect from September, 1996 till today.
(d) Cost of application."
9. It may also be mentioned that in para-5 of the rent application, the respondent No,1 has specifically pleaded that the prevailing rental value of the premises in question, is not less than Rs,25,000 per month. In our view the Court while granting relief in a case is not bound merely by the prayer clause but has to look into whole of the pleading and thereafter to grant relief as may be arising from it. The rent matter being in a nature of quasi judicial proceedings and the provision of C.P.C. Being not strictly applicable, therefore, the technicalities cannot be allowed to come in the way in granting relief in such proceedings. In any case respondent No,1 in the prayer as noted above has specifically prayed for fixation of fair rent and it was not incumbent that the specific rent as claimed by respondent No,1 ought to have been mentioned in the prayer clause when the amount of rent, which is sought to be enhanced and claimed by the landlord can validly be found from the body of the rent application. The case of Haji Abdullah (supra) cited by the learned counsel for the petitioner is distinguishable from the facts and circumstances of the present case.
Similarly the case of Abdul Rehman (supra) as regard the point of admissibility of document in evidence is also distinguishable from the facts and circumstances of the present case.
10. For all what has been discussed above, we are of the opinion that no case has been made out by the petitioner to interfere in the impugned judgment, which seems to be unexceptionable. There is no merit in this petition, the same is, therefore, dismissed and leave refused.