IRFAN SAADAT KHAN, J.---The instant petition has been filed with the following prayers:-- "It is humbly prayed that this Hon'ble Court may be pleased to set aside the impugned judgment dated 13-10-2015, passed by the IVth Additional District Judge Karachi Central in F.R.A. No.36/20I 4 and order dated 17-03-2014 passed by the IVth Rent Controller Karachi Central, directing the Rent Controller to fix the fair rent after measuring the premises in occupation of Dawood Islamic Bank as well as the Petitioner, fully appreciating the difference in comparative location prime ground floor area of the two Banks giving a chance to the landlord to produce any independent evidence of the prevailing rent."
2. Briefly stated the facts of the case are that the petitioner is a scheduled Bank and a tenant of the respondents Nos.1 to 5 (the respondents) in respect of the premises located at Plot No.SE-6, Block- G, North Nazimabad, Karachi. The respondents filed an application under Section 8 of the Sindh Rented Premises Ordinance, 1979 (the Ordinance) before the IVth Rent Controller, Karachi Central, bearing Rent Case No.342 of 2011 on the .ground that since rent paid by the petitioner is not fair hence the Court may fix a fair rent which, as per the respondents, was Rs.350/- per square foot i.e. Rs.10,50,000/- per month from February 2010 with an increase of 10% every three year or any other order which the Court deems necessary. The matter thereafter proceeded before the Rent Controller who after recording the evidences and the deposition of the witnesses vide order dated 17.03.2014 allowed the application by fixing the rent at Rs.195/- per square foot i.e. Rs.5,85,000/- per month from the date of filing of the instant rent application. Being aggrieved with this order an appeal thereafter was preferred before the IVth Additional District Judge, Karachi Central, bearing F.R.A. No.36 of 2014 who vide his order dated 13.10.2015 upheld the order of the Rent Controller. It is against these orders that the present petition has been filed.
3. Mr. Khalid Mahmood Siddiqui Advocate has appeared on behalf of the petitioner and stated that the petitioner was paying rent at the rate of Rs.25,000/- per month to the present respondents from September 1997 which has been increased by the Rent Controller to Rs.5,85,000/- from May 2011 which is 2340% of the present rent. The learned counsel stated that no doubt the price of construction as well as taxes have increased but the rent fixed by the Rent Controller at Rs.5,85,000/- per month as against Rs.25,000/- per month, being paid by the petitioner, is not only arbitrary but also whimsical and hence both these orders are liable to be set aside. He submitted that both the authorities below have erred in placing reliance on the rent paid by Dawood Islamic Bank. According, to the learned counsel that firstly Dawood Islamic Bank is situated on a corner plot, moreover if the rent paid by the Dawood Islamic Bank has been agreed between the respective landlord and tenant, the same could not be made the basis of fixing the rent in the petitioner's case. He further submitted that all the instances given by the respondents in respect of the rent paid in the vicinity by different tenants is also not available since in most of the cases the respondents are the landlords and hence the same could not be made the basis of fixing the fair rent in the present petitioner's case. He, therefore, submitted that since the fixation of the fair rent has been made arbitrarily by the two authorities below hence the orders may be set aside or the matter may be remanded to the Rent Controller for fixation of fair rent in a rational and reasonable manner. In support of his above contentions, the learned counsel has placed reliance on the following decisions: 1) State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt.) Ltd. (2008 CLC 517)
2) Muhammad Farooq v. Muhammad Waheed Siddiqui and 2 others (2013 YLR 2181)
3) Muhammad Akhtar Saleem and others v. State Life Insurance Corporation of Pakistan and another (2001 SCMR 1314)
4) Abdul Hamid v. Abdul Ghani (1992 MLD 1588)
5) Mst. Mehrunnisa v. Muhammad Rafiullah (1995 CLC 202), 6) Messrs Habib Insurance Co. Ltd. v. Messrs State Life Insurance Corporation of Pakistan Ltd. and another (PLD 2006 Kar. 294)
7) Messrs Mermaid Constructions (Pvt.) Ltd. and another v. State Life Insurance Corporation of Pakistan and another (PLD 1999 Kar. 322)
8) Muhammad Rafiullah v. Mst. Mehrunnisa (1995 MLD 418)
9) Banarsi Silk Cloth Museum v. Mst. Amna Bai (1986 CLC 1570)
4. Mr. Shabbir Ahmed Sheikh Advocate has appeared on behalf of the respondents and submitted that the subject property was purchased by the present respondents in 1997 when it was already let out to the petitioner and the petitioner was paying a paltry rent of Rs.25,000/- per month, whereas the rent paid by other tenants in the vicinity has gone manifold. He submitted that even today the petitioner is paying only Rs.25,000/- per month which by no stretch of imagination could be considered to be the fair rent. He further submitted that the Rent Controller in fact has favoured the petitioner by fixing the rent at Rs.195/- per square foot whereas, according to the respondents, the fair rent was Rs.350/- per square foot, however since the respondents have not filed any petition before this Court hence he would now only defend the orders passed by the two authorities below. The learned counsel submitted that the Rent Controller as well as the appellate Court after finding that Dawood Islamic Bank is situated in the same vicinity has rightly fixed the rent as paid by the said Bank and no illegality in this regard has been committed by the two authorities. He further submitted that a number of instances in respect of the rent paid in the vicinity were given to the Rent Controller, however the Rent Controller has fixed the rent which was lowest hence, according to him, no illegality has been committed by the two authorities and their orders are liable to be upheld and this petition being misconceived is liable to be dismissed with heavy cost.
He further submitted that the petitioner has also not denied the fact that cost of construction has gone manifold which has been discussed at length in the body of the order passed by the Rent Controller. He further submitted that the issue with regard to the rent paid by the other tenants in the vicinity was not even rebutted by the petitioner before the Rent Controller hence raising of this issue at this juncture, according to him, is misplaced and not to be considered. He further submitted that it is a settled principle of law that while deciding the application under Section 8 of the Ordinance all the four factors are not required cumulatively to be proved and it has been held in a number of decisions of this Court and the apex Court that even if one factor is proved by the landlord the same is enough and sufficient for fixation of fair rent in accordance with the law as, according to him, all the four factors are independent in nature. In support of his above contentions, the learned counsel has placed reliance on the following decisions: 1) Muhammad Farooq v. Muhammad Waheed Siddiqui and 2 others (2013 YLR 2181)
2) Muhammad Farooq v. Abdul Waheed Siddiqui and others (2014 SCMR 630)
3) President Balochistan High Court Bar Association v. Federation of Pakistan and others (2012 SCMR 754)
4) Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103)
5. Mr. Khalid Mahmood Siddiqui Advocate, in his rebuttal, has submitted that the instances of the rent paid by the other tenants in the vicinity could not be made the basis of fixing the rent in the instant case since most of the landlords in those matter are the respondents themselves and it has already been held in the decision of State Life Insurance Corporation of Pakistan (cited supra) that rent agreed between an independent landlord and tenant could not be made the basis of fixing the rent in respect of the other tenants. He further submitted that if the cross-examinations of the respondents are examined, it would be seen that those respondents have admitted that those tenancy agreements do not pertain to the same building and hence, according to him, the rent paid by those other tenants could not be relied upon.
6. I have heard both the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.
7. From the pleadings of Mr. Khalid Mahmood Siddiqui it appears that he has primarily raised two issues; first, that the Rent Controller, as well as appellate Court, were not justified in fixing the fair rent from Rs.25,000/- per month to Rs.5,85,000/- per month, which is about 2340% more than the previous rent and the said addition is arbitrary; and, second, that the Courts below were not justified in fixing the fair rent by keeping in view the rent paid by Dawood Islamic Bank, as the rent between the Dawood Islamic Bank and its landlord is an agreement between an independent landlord and tenant, which could not be made the basis of fixing the fair rent in the case of present petitioner. I will discuss each issue separately.
8. Before proceeding any further, it would be beneficial if Section 8 of the Ordinance is reproduced hereinbelow:
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 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 tat, or other public charge has been levied, enhanced, reduced or withdrawn 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.
Perusal of the above Section reveals that the Controller has the authority under the law to fix the fair rent keeping into consideration the factors as enshrined in the above referred Section. The burden is always upon the landlord to bring his case within four factors and in case the landlord satisfies the Court with regard to the fixation of fair rent, it is the responsibility of the Rent Controller to fix the fair rent keeping in view the factors as mentioned in the instant Section.
9. It is now a well settled principle of law that it is not necessary that all such four factors must be satisfied or fulfilled by the landlord while making a request for fixation of fair rent, upon fulfillment of even one condition the Rent Controller is authorized under the law to fix the fair rent of a property since cumulative effect of all the four factors, as mentioned in the instant section, is to be kept in mind by the Rent Controller while fixing the fair rent. In the instant petition it is an admitted position that the price of the construction has increased considerably, which would infer that the petitioner is mindful of the fact that the rent being paid by them could not be considered at the present time to be a fair rent. Now a question would arise that what would be the fair rent in the present case.
The answer to this question is available in the four factors given in the said Section. It is a settled principle of law that it is the exclusive domain of the Rent Controller to fix the fair rent keeping in view the above factors which would include rent paid in similar situation in respect of the properties located in adjoining area apart from rise in cost of construction, repair charges, imposition of new taxes etc. and if the landlord is able to bring home his case with regard to the fixation of fair rent being paid by other tenants in respect of similarly placed properties, the rent paid by those tenants in the adjoining locality would be considered to be the fair rent, which in my view is the essence of Section 8 of the Ordinance, hence the argument of the learned counsel for the petitioner with regard to the increase in rent by denoting the percentage would be of little significance when it is proved beyond any iota of doubt by the landlord that what is the rent being paid by the other tenants in the adjoining locality in respect of the similarly placed properties.
10.For instance, a tenant is paying 'X' amount of rent which is not fair as per the landlord and he files an application under Section 8 of the Ordinance before the Rent Controller by agitating that 'Y' amount is the fair rent which should be paid by the tenant and if the Rent Controller after going through the evidences, records and other determining factors comes to the conclusion that 'Y' amount is the fair rent in respect of the property given on rent by the landlord to the tenant, the said 'Y' amount would be considered to be the fair rent and in such circumstances the comparison of 'Y' rent in terms of percentage with the 'X' rent being paid by the tenant, as stated earlier, would be of little significance if the 'Y' rent is the fair rent prevalent in the said locality in respect of the similarly placed buildings /properties.
11.I was able to lay my hands on a decision given in the case of Mukhtarul Omar v. Messrs State Life Insurance Corporation of Pakistan and 2 others (2009 YLR 204) wherein a learned Single Judge of this Court observed as under: there is no limitation on the Rent Controller while fixing fair rent in term of section 8 of the SRPO and even rent of Rs.1 only can be enhanced to Rs.100 or Rs.1000 as same is to be done keeping in view the factors enumerated in section 8 as well as duration of time after which the rent application has been made."
In another judgment given in the case of Messrs Rabb Coffee House through Partner v. Muhammad Bakhsh and Sons through Managing Partner and 2 others (2013 MLD 239) the rent was increased from Rs.1.06 per square foot per month to Rs.45/- per square foot per month, which is 4300%, and the learned Single Judge of this Court dismissed the petition filed by the tenant by observing that the same is fair.
In another decision given in the case of Messrs Oceanic International (Pvt.) Ltd. v. Messrs Lalazar Enterprises and others (2009 MLD 911) the rent was increased from Rs.1.25 per square foot per month to Rs.12/- per square foot per month by the Rent Controller, which was further enhanced to Rs.17/- by the appellate Court and the learned Single Judge of this Court dismissed the petition filed by the tenant after finding the increase in rent to be in accordance with law and fair.
In another case i.e. Singer Pakistan Limited v. Arshad Riaz Fazail and 2 others (2013 CLC 739) the rent paid by the tenant at the rate of Rs.20/- per square foot was increased to Rs.85/- per square foot and the same was found to be in order by the learned Single Judge of this Court and the petition filed by the tenant was dismissed.
In another judgment given in the case of Muhammad Afaq v. State Life Insurance Corporation of Pakistan, Karachi and 2 others (PLD 2008 Karachi 100) the learned Single Judge of this Court enhanced the rent from Rs.300/- per month to Rs.40/- per square foot and the petition filed by the tenant was dismissed.
In the decision recorded in the case of Ittehad Chemicals Limited v. With Additional District Judge, Karachi (South) and 2 others (2010 SCMR 1582) the Hon'ble apex Court found no legal infirmity in the orders of the three Courts below wherein the fair rent was fixed at Rs.80,000/- per month from Rs.8,178/- per month.
In view of the above noted facts, in my view, the Rent Controller is fully authorized and justified in fixing the fair rent as per B the parameters as laid down in Section 8 of the Ordinance.
12. So far as the second limb of the arguments of the learned counsel for the petitioner is concerned, it is seen that the respondents furnished a number of tenancy agreements in respect of the properties situated in the vicinity, however the Rent Controller has fixed the rent at Rs.195/- per square foot in respect of the property let out to Dawood Islamic Bank, which is also situated in the same building. It is seen that the Rent Controller while fixing the fair rent has taken into consideration all the instances and the rent agreements furnished by the landlord in respect of the premises being let out in the vicinity. The Rent Controller has also reproduced the relevant portion of the affidavit-in-evidence at page 10 of his order. The Rent Controller has also discussed the increase in labour charges, which was prevalent in 1997 when the respondents purchased the property, which was already in possession of the petitioner. It has, however, not been brought on record as to since when the said property was let out to the petitioner by its previous owner since the property was purchased by the present respondents in the year 1997 only when the petitioner was already paying a rent of Rs.25,000/- per month.
13.The Rent Controller has also discussed in detail the escalation in price of construction which has not been denied by the learned counsel for the petitioner. It is also seen from the record that not a single piece of evidence was furnished by the petitioner before the Rent Controller in their defence with regard to the fair rent available in the vicinity. It is also seen that when no material was furnished by the petitioner before the Rent Controller which could support his view with regard to fixation of fair rent and the Rent Controller on the basis of the affidavit-in-evidence and the material produced by the respondents fixed the fair rent by considering the rent paid by the Dawood Islamic Bank to be lowest in comparison to the rent being paid by other tenants in the vicinity.
14.The objection raised by Mr. Khalid Mahmood Siddiqui with regard to the fact that the rent agreements entered between the respondents with their other tenants, which are independent agreements, should not have been considered by the Rent Controller and in this regard has placed reliance on the decision given in the case of State Life Insurance Corporation of Pakistan (supra).
Suffice to state that the Rent Controller has not relied upon the rent agreements entered between the respondents with their other tenants but has fixed the fair rent on the basis of the rent being paid by Dawood Islamic Bank which is admittedly situated in the same building as admitted by the attorney of the Bank in his deposition while being cross-examined. Hence, the said case cited by the learned counsel for the petitioner is found to be distinguishable from the facts obtaining in the instant petition.
15.It is also evident from the record that the attorney of the petitioner, who appeared before the Rent Controller, has not rebutted the version of the respondents with regard to the payment of rent being paid by the other respective tenants of the respondents and that being paid by Dawood Islamic Bank. It is in this background that the Rent Controller fixed rent at Rs.195/- per square foot which comes to Rs.5,85,000/- per month. It is further seen that before the Rent Controller also the petitioner has failed to bring on record any evidence that the rent fixed by the Rent Controller was not fair and thereafter appellate Court observed that since no material was brought on record with regard to the rent fixed by the Rent Controller, the appeal filed by the petitioner was dismissed.
16.The decisions relied upon by the learned counsel for the petitioner in the cases of Muhammad Rafiullah and Mst. Mehrunnisa (supra) are found to be distinguishable, since in these two cases the learned Single Judge has opined that the Rent Controller has fixed the rent which was not based on four factors and hence are quite distinguishable from the facts obtaining in the instant case. The decision given in the case of Messrs Mermaid Constructions (Pvt.) Ltd. and another, Abdul Hamid and Banarsi Silk Cloth Museum (supra are also found to be distinguishable as in those cases the learned Single Judges have opined that the Rent Controller is required to consider all four factors as prescribed under Section 8 of the Ordinance, whereas it has already been observed above that all the four factors need not necessarily be fulfilled cumulatively and simultaneously and the fair rent could be fixed by keeping in view any one condition as specified in Section 8 of the Ordinance, hence, the above referred three judgments are found to be distinguishable. The case of Muhammad Akhtar Saleem and others (supra) is also found to be distinguishable as in this case the Hon'ble apex Court remanded the matter to the High Court for fresh decision since conclusion has been recorded without apparently having due course to the evidential facts. The case of Messrs Habib Insurance Co. Ltd. (supra) is also found to be distinguishable as in that case rent demand of Rs.10/- per square foot was fixed at Rs.8.57 per square foot by the High Court which was upheld by the Hon'ble Supreme Court on the ground that the property was on third floor and Rs.8.57 per square foot was found to be fair.
17. Now I will discuss the decisions relied upon by the learned counsel for the respondents. The decision given in the case of President Balochistan High Court Bar Association (supra) is found to be not relevant to the present case. In the decision given in the case of Messrs Olympia Shipping and Weaving Mills Ltd. and another (supra) the Hon'ble Supreme Court has observed as under:
16. Viewed in the light of the language employed by the Legislature and the earlier precedents it may be observed that four factors incorporated in law are in the nature of guiding principles for the Rent Controller for determination of fair rent. The cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight. Nevertheless, common ground available in most of cases would be the prevalent market rent of the similar premises situated in similarly circumstances in the same or adjoining locality. It may thus, be made clear that existence of all the four conditions is not the invariable rule of law and presence of all factors in a case might lead to appreciation in determining rate of rent for the purpose of fair rent. Absence of any of the factors would not, in any case, prejudice the case of the applicant before the Rent Controller.
In the above case the Hon'ble Supreme Ccurt has further observed as under:
12. During the course of arguments, learned counsel has been unable to impugn the concurrent findings of fact on the question of fixation of fair rent except that the rent so fixed was seventeen times higher than the rate of rent which was being paid by the appellants. It may not be out of place to state here that in case value of property has appreciated in a particular locality, so also there has been increase in the cost of construction, maintenance, repairs, renovation or increase in local taxes or Property Tax etc. by the Legislature, the rate of rent could be revised which could be at higher percentage than the normal increase of 10% per annum. Consequently, fixation of fair rent cannot be said to be unfair or inequitable. In C.P.L.A. No.414-K of 1989, decided on 15-1-1990, Muhammad Afzal Zullah, C.J. (as his lordship then was), observed that it was not merely lesser rents in locality which were to be kept in mind but also those being paid at higher rate would have also to be taken into account. It is settled proposition of law that this Court would not generally interfere with the concurrent findings of fact unless it is shown that findings are recorded by misappreciation of evidence and/or misconstruction of law and against the settled principles for appraisal of evidence. Obviously, appellants have not been able to bring their case within the exception clause with the result that we are not inclined to interfere with the findings of fact and the discretion exercised by the Rent Controller and the High Court.
Interestingly both the learned counsel have placed reliance on the decision given in the case of Muhammad Farooq (supra), authored by me, wherein the Rent Controller enhanced the rent from Rs.600/- per month to Rs.6000/- per month which was challenged in petition and thereafter I dismissed the petition by observing as under-
11. In view of what has been discussed above, I have come to the conclusion that the trial Court as well as the appellate Court have fixed the rent at Rs.6000 per month which is fair keeping in view the prevalent circumstances, the rent paid by the tenants in the vicinity and not a single evidence has been produced by the counsel for the petitioner that the rent paid by the petitioner is more than the rent of the shops situated in the adjoining area, which is similar to the shop occupied by the petitioner. The decisions relied upon by the learned counsel have been examined and are found to be distinguishable on the basis of the facts of the present petition.
This order was subsequently challenged before the Hon'ble Supreme Court and the Hon'ble apex Court observed as under:
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.
18. I was also able to lay my hands on the decision given in the case of Muhammad Jamil v.
Muhammad Rahim (1987 CLC 176), wherein the learned Single Judge of this Court has observed as under: A careful study of section 8 of Sindh Rented Premises Ordinance, 1979, will show that fair rent of the premises can be fixed by the Rent Controller either on an application made by the tenant or the landlord. It. is further quite clear from section 8 that while determining the fair rent of the premises the Rent Controller will be guided by the rent of similar premises situated in the similar situation in the same or adjoining locality, the rise in the cost of construction and repair charges, imposition of new taxes after commencement of tenancy and annual value of the premises on which the property tax is levied.
In another judgment given in the case of Abdul Ghaffar v. Noor Jahan Malik (1987 CLC 2182) the learned Single Judge of this Court has observed as under: In my opinion, if any instance of similar premises situated in the same building is present, as it is available in the instance case, it is the best circumstance or factor which may be given due consideration for fixing the fair rent of the disputed premises.
In another decision given in the case of Muhammad lqbal through L.Rs. and another v. Mst. Fatima Bai and others (2015 MLD 397) the learned Single Judge of this has observed as under: 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.
In another judgment given in the case of Moinuddin Paracha v. Messrs Novatrtis Pharma Pakistan Ltd. and 2 others (2015 YLR 947) the learned Single Judge of this Court has observed as under:
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.
19. In view of the above facts and circumstances of the case, I find no legal infirmity in the orders passed by the two Courts below and dismiss the instant petition along with the listed application by directing the petitioner to pay the rent as fixed by the Rent Controller from the date of filing of the rent application.