' FAROOQ ALI CHANNA , J.---The petitioners are tenants of Shop No, 2, measuring 300 Sq. Feet, situated on ground floor of building known as Muhammadi Terrace, on Plot No, SR-9/11, Tayyabi Road, Karachi against the rent of Rs, 825 per month owned by respondents, who filed Rent Application No, 597 of 2008 under section 8 of the Sindh Rented Premises Ordinance, 1979 for fixation of fair rent not less than Rs,70 per Sq.Foot accumulating Rs,21000 per month. In pursuance of notice, the petitioners appeared before the Rent Controller and filed the written statement. Both the parties led their evidence, the Rent Controller after hearing the counsel for both the parties, allowed the application and fixed the rent of the demised premises at Rs,2500 per month from the date of institution of application.
2. The respondents being dissatisfied with the order of Rent Controller assailed the same in F.R.A.
No, 326 of 2009, before, the learned Vth Additional District and Sessions Judge Karachi-South, who modified the order of Rent Controller and fixed the rent at Rs, 7500 per month instead of Rs, 2500 per month and allowed the appeal accordingly vide judgment dated 22-2-2011, which is impugned in this petition.
3. I have heard the learned counsel for both the parties and perused the record.
4. The Rent Controller while fixing the rent has observed that the applicants (respondents in this Constitution Petition) failed to produce any independent oral and documentary evidence in respect of their claim that the prevailing rate of rent of similar premises is in between Rs, 70 to 90 per Sq. Foot per month, on the contrary, in cross-examination they have admitted that the rent of other shops situated in the same building as stated by respondents (petitioners in this Constitution Petition) in their written statement so also in affidavit-in-evidence is correct. However, the Rent Controller keeping in view the rise in cost of construction, and land so also leviable taxes, enhanced the rent from Rs,825 to Rs,2500 per month. The appellate court in the impugned judgment has also observed that the rent of adjoining shops in the same premises almost is equal to the rent being paid by the petitioners to respondents, however, the appellate court modified the order of Rent Controller observing that the petitioners have failed to prove that the rent of adjoining shops situated in the same building was fixed by the court of law. The appellate court has also considered the admissions of petitioners came on the record during cross-examination of petitioner Muhammad Rafiq that the rent of shop situated in KMC Market at Hassan Afandi Road is Rs,20256 and that generally rent of government owned premises is less than as that of privately owned premises, I may mention here that the appellate court has not considered the aforesaid admission as whole ignoring the clarification that the said rent was for the period of one year and fixed the rent at the rate of Rs,7500 per month.
5. I have given due deliberation to the sketch of Muhammadi Terrace building placed on record by petitioners, wherein the demise premises is situated. The said building consists of 26 shops, the rent of each shop varies from Rs,650 to Rs,1500. The counsel for respondents has not disputed above rent of each shop shown in the sketch, similarly learned counsel for the petitioners has also not disputed the rate of rent of shops situated in the same vicinity at some distance from the demised premises discussed in the impugned judgment.
6. The sole comprehend controversy in this Constitution Petition is that as to how to determine the rate of rent of the demised premises. Either by considering rent of adjoining shops in the same premises or shops situated in the vicinity. The meaningful answer obviously would be the rent of the shops situated in the same building. The contention of learned counsel for respondents that the Rent Controller did not consider the rent of similar premises situated in the same area or adjoining locality is justifiable/unjustifiable, therefore, the findings of the appellate court based upon the consideration of rent prevailing in the adjoining locality requires no interference, is merit- less. In my opinion, if any instance of rent in similar premises situated in the same building is present, as it is available in the instant case, it would be the best circumstance or factor which may be given due consideration for fixing the fair rent of disputed demised premises.
7. Learned counsel for the respondents, on a query of this court, has admitted that the shops including demised premises were let of on rent to different tenants on same terms and conditions as that of petitioners, the respondents have approached the Rent Controller for fixation of fair rent in respect of demised premises rented out to the petitioners only and intend to file applications for fixation of rent against other tenants. The above admission is visible discrimination against the petitioners. The enhancement in rent prayed by respondents find no legal path, I cannot close eyes and accept such mysterious circumstances, compelling the petitioners to invoke the constitutional jurisdiction conferred upon this court under Article 199 of the Constitution 1973. However, the respondents would be at liberty to claim enhancement in rent from the petitioners equal to the rent of other shops situated in the same building to be fixed by the court or mutually agreed by the respondents and other tenants, of course after adopting due process of law.
8. In view of the above, I set aside the impugned order dated 22-2-2011 passed by learned Vth Additional District and Sessions Judge, Karachi-South and restore the order dated 12-9-2009 passed by learned. Rent Controller passed in rent case No, 597 of 2008.
9. The Constitutional Petition is allowed. SA/M-61/Sindh revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.