' SHAHNAWAZ TARIQ, J.-- Through instant petition, petitioner Moinuddin Paracha son of Mehboob Bukhsh Paracha while invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution, has prayed to set aside judgments passed by the appellate Courts and enhance the rent by allowing the Rent Application No,119 of 2002 as prayed with effect from the date of filing of rent application.
2. Relevant facts spelt out from instant petition are that petitioner is co-owner and landlord of the building known as Mehboob Chambers situated on Plot No,8/2, bearing Survey No,SB-7, Saddar, Shahrah-e-Iraq, Karachi, while the respondent is tenant in respect of the whole sixth floor, premises Nos.508 to 516 on fifth floor and Room No,707 on 7th floor respectively, and tenancy was commenced on 1-1-1967. The total area of demised premises is comprising of 22108 sq. Ft. At the consolidated rate of rent Rs,14,102 per month, meaning there by Rs,0.63 per sq. Ft. Excluding electricity charges. It is further averred that the premises is situated in the prime location of Saddar, which is a famous commercial area, where well reputed departmental stores, markets, shops, banks and other offices are located. The prevailing rate of rent of the similar premises situated in the same vicinity is at least more than Rs,10 per sq. Ft. Excluding electricity charges. The premises if let out to anyone is likely to fetch rent at the rate of Rs,20 per sq. Ft. Excluding electricity and other charges, whereas the petitioner is receiving rent at the rate of Rs,0.63 per sq. Ft. It is also stated that right from 1-1-1967 till-date, there has been a tremendous enhancement of cost of construction, property taxes, water, sewerage and conservancy charges, Municipal charges, and ground rent by Government. The prevailing rate of rent of Rs,0.63 is too lesser than premises situated in the locality of Saddar. Therefore, the petitioner is entitled to receive the enhanced rent at the rate of Rs,20 per sq. Ft. From the date of filing of the rent application before the learned Rent Controller.
3. The respondent filed written statement that he is regularly depositing monthly rent in MRC No,3907 of 1984 in the Court of the Rent Controller, because the petitioner and the respondent are involved in litigation in various Courts. The prevailing rate of rent of similar premises situated in similar vicinity is not more than Rs,10 per sq. Ft. The demised premises is in most dilapidated condition and it will not fetch rent as claimed. The respondent made requests to the petitioner and other co-owners to restore regular supply of water, provide lift facilities and clean sewerage system which have not been done with ulterior motive to compel the respondent to vacate the premises. The petitioner and other co-owners of the premises instead of discharging their obligations, have filed proceedings with the mala fide intention only to cause discomfort, inconvenience and mental agony to the respondent. Due to failure of the applicant to restore the above amenities, the respondent had filed Rent Case No,1164 of 2001 and Rent Case No,1165 of 2001 against the petitioner. The petitioner has not been paying more amounts to the Government authorities towards charges and taxes.
4. From the pleadings, the learned Rent Controller framed following points for determination:--
(1) Whether cost of construction, property tax, water, sewerage, conservancy charges, other Government and Municipal taxes/ charges are increased many times by the Government?
(2) Whether applicant is entitled for fixation of fair rent, if so then at what rate?
(3) What should the order be?
5. After recording the evidence and hearing the arguments of the parties, the learned Rent Controller allowed the rent application vide order dated 16-8-2004, and enhanced the monthly rent from Rs,0.63 per sq. Ft per month to Rs,4 per sq. Ft per month. The petitioner filed FRA No,126 of 2004, against the order of the learned Rent Controller, before the learned District Judge, Karachi South, which was transferred to the Court of learned VI Additional District Judge, Karachi South, for the disposal, while the respondent also challenged the order of the learned Rent Controller vide FRA No,139 of 2004, which was transferred by the learned District Judge, Karachi South, to the Court of the learned Ist Additional Sessions Judge, Karachi South, for further adjudication. However, the appellate Court of learned VI Additional District Judge, Karachi South, vide judgment dated 6-7- 2010, dismissed FRA No,126 of 2004 and maintained the order passed by the learned Rent Controller, while the appellate Court of learned Ist Additional District Judge, Karachi South, allowed FRA No,139 of 2004 vide judgment dated 8-7-2009, with modification of the rate of rent from Rs,4 per sq. Ft. To Rs,0.75 per sq. Ft. From the date of filing of the date of rent application. The petitioner has impugned the order dated 16-8-2004, passed by the learned Rent Controller as well as both conflicting judgments dated 8-7-2009 and 6-7-2010 passed by the respective appellate Courts by preferring instant Constitutional petition.
6. Learned counsel for petitioner has contended that the demised premises was let out to the respondent on 1-1-1967, and since then the respondent has been paying the same monthly rent. He submitted that the prevailing rate of rent of the similar building is more than Rs,20 per sq. Ft. And in State Life Building No,11, which is situated within the yards distance, the rate of monthly rent is Rs,70 to Rs,80 per sq. Ft. Learned counsel submitted that during the period of 47 years of the tenancy, there has been an incredible enhancement of the cost of construction, property taxes, water, sewerage and conservancy taxes, and Government taxes as such the prevailing rate of rent of Rs,0.63 is much lesser than the other premises situated in the locality of Saddar. He submitted that in the year 1995, when rate of the rent in vicinity was low, the premises of Mehboob Chambers was under the control of Mr. Justice (Rtd.) Zahoor ul Haq, as he was appointed as Commissioner by the High Court in R.A.No,157/1985, the petitioner had paid more than Rs,3,00,000 for the said year to KW&SB. The learned Rent Controller has not properly appreciated the relevant facts and enhanced the monthly rent at the rate of Rs,4 per month per sq. Ft. And failed to take judicial notice of the Government notification providing rates for property tax. As per said notification ordinary commercial property in "A" zone has been assessed at the rate of Rs,5 per sq. Ft. And rented commercial property in same zone has been assessed at the rate of Rs,10 per sq. Ft.
7. Learned counsel for the petitioner submitted that the Court of learned Ist Additional District Judge, Karachi South, allowed FRA No,139 of 2004 vide judgment dated 8-7-2009, with modification of the rate of rent from Rs,4 per sq. Ft. To Rs,0.75 per sq. Ft. From the date of filing of the rent application, meaning thereby the rent is enhanced to the extent of only Rs,0.12 paisa per sq. Ft.
Which is amounting to the refusal of enhancement. He relied upon the case of Abdul Ghaffar v.
Noor Jehan Malik, 1987 CLC 2182.
8. While controverting the above contention, learned counsel for the respondent. No,1 has denied that the prevailing rate of rent of similar premises situated in similar vicinity is more than Rs,10 per sq. Ft. The demised premises is in most dilapidated condition and despite several requests, the petitioner has failed to provide the amenities. He submitted that the petitioner has not been paying more amounts to the Government authorities towards the taxes and other charges. He also submitted that impugned order dated 16-8-2004, passed by the Rent Controller and impugned judgment dated 6-7-2010, passed by the Court of learned VI Additional Sessions Judge, Karachi South, are liable to be set aside, while the judgment dated 8-7-2009, passed by the Court of 1st Additional Sessions Judge, Karachi South, is strictly in accordance with law, hence, petitioner is not entitled for fixation of fair rent as claimed and petition is liable to be dismissed. He relied upon 2014 MLD 297, 2014 SCMR 984, 2009 YLR 1893 and PLD 2005 Karachi 416.
9. Perusal of the record and consideration of the arguments advanced by the parties and case-law cited supra reflect that the demised premises was let out on 1-1-1967, at the rate of Rs,0.63 per sq.
Ft. Per month and during the period of 47 years the monthly rent was never enhanced. The petitioner filed rent application under section 8 of Sindh Rented Premises Ordinance, 1979, against the respondent for fixation of fair rent at the rate of Rs,20 per sq. Ft. Per month from the date of filing of the case. After taking into consideration the evidence led by the parties, the learned Rent Controller allowed the rent application whereby he allowed Rs,4 per sq. Ft. Per month from the date of filing of the rent application.
10. It is significant to mention that during the course of the evidence, the attorney of the petitioner produced 13 bills of water and sewerage, challan and tenancy receipts. He has stated that the demised premises is situated in commercial area of Saddar which is a prime location of business.
He also stated that the prevailing rate of rent of the similar premises situated in the same vicinity is more than Rs,10 per sq. Ft., excluding the electricity charges. He also stated that right from 1-1-1967 till-date, the cost of construction, Government and Municipal charges, have enhanced tremendously. In cross-examination, the witness has stated that they had carried out the whitewash of the building about 6/7 months back.
11. It is essential to mention that during the course of cross-examination, the counsel for the respondent had not challenged the increase in cost of the Construction and other materials, government taxes and other charges from the inception of the tenancy i,e, 1-1-1967. On other hand, the respondent's witness namely Muhammad Nazir Bandukhda in his cross-examination has admitted that the respondent neither paid any advance amount nor any goodwill to the petitioner at the time of commencement of the tenancy. The witness further admitted that the monthly rent was never enhanced after the year 1970, and cost of construction, repairs and its materials has been enhanced 50 times. The witness was unaware if the other /tenants of demised premises were paying monthly rent at the similar rate of the locality.
12. Section 8 of Sindh Rented Premises Ordinance, 1979, provides a mechanism for determination and fixation of the fair rent of the rented tenement. In section 8, four conditions have been envisaged for taking into the consideration while dealing with issue of fixation of fair rent i,e, the rent of similar premises situated in the similar circumstances or adjoining locality; the rise in cost of construction and repair charges; the imposition of new taxes, if any, after commencement of the tenancy; and the annual value of the premises, if any, on which property tax is levied. Section 8 did not impose any restriction or barrier upon the Rent Controller for the quantum or limit of rent while invoking his jurisdiction under said section to deal and adjudicate the question of fixation of the fair rent. However, the Rent Controller while determination the fair rent, has to consider the material strictly within the provisions as envisaged in section 8, Sindh Rented Premises Ordinance, 1979. It is also not mandatory that all the four conditions mentioned in section 8 must exist and proved by the claimant party during the course of the trial, but any one of the above referred conditions, if proved satisfactorily, is sufficient to enhance the monthly rent of the demised premises.
13. Adverting to the merits of case in hand, it is an undeniable fact that since the date of commencement of the tenancy i,e, 1-1-1967 till-date, there is manifold enhancement in cost of construction, property taxes, Municipal charges and Government taxes. Besides the above, it is also significant to note that the demised premises is situated in the heart of Saddar which is one of the prime commercial areas of Karachi and during the period of 47 years of the tenancy, the business activities have also been increased and even footpaths have been occupied by the various street stalls, therefore, the very aspect of the increase in the commercial importance and value of location of the demised premises, which has increased with the passage of time, should also be taken into consideration while fixing the fair rent.
14. The bare perusal of the order dated 16-8-2004, reflects that the learned Rent Controller has thoroughly examined every aspect of case while deciding the question of fixation of fair rent and enhanced the rent from Rs,0.63 per sq. Ft. Per month to Rs,4 per sq. Ft. Per month. Likewise, the learned appellate Court of VI Additional District Judge, Karachi South, while deciding FRA No, 126/2004 vide judgment dated 6-7-2010, has minutely discussed all the involved issues in the purview of the evidence led by the parties and maintained the order passed by the learned Rent Controller and the request of the petitioner for further enhancement of rent was declined. On the other hand, the learned appellate Court of Ist Additional District Judge, Karachi South, has neither passed the speaking judgment nor properly appreciated the wisdom behind the provisions of section 8 of Sindh Rented Premises Ordinance, 1979, and has also ignored the certain vital facts admitted by the respondent's witness which are fatal to the plea raised by the respondent.
Consequently, the judgment dated 8-7-2009, passed by the learned appellate Court of learned 1st Additional District Judge, Karachi South is purely based on misreading and non-reading of the evidence, hence, non-maintainable under the law and same is hereby set aside.
15. It is well settled law that the scope of High Court in exercise of its jurisdiction under Article 199 of the Constitution, in rent matters is very limited, and such jurisdiction can only be invoked when the findings of the Rent Controller and appellate Court are perverse, irrational, arbitrary, based on misreading and non-reading of the evidence resulting in absolute miscarriage of justice.
16. As the consequence of the above detailed discussion of the peculiar facts, circumstances and case-law, I am of the considered view that both the findings i,e, the enhancement and fixation of fair rent vide order dated 16-8-2004, passed by learned Rest Controller and judgment dated 6-7- 2010, passed by the learned appellate Court of VI Additional District Judge, Karachi South, are just, proper and in accordance with law and do not call for any interference, hence, same are maintained. Consequently, for the findings made supra, instant petition stands disposed of.