1. MRS. ASHRAF JAHAN, J.---Through this constitutional petition, the Petitioner has assailed the order dated 18.05.1998 passed by learned VII-Rent Controller, Karachi South, in Rent Case No.1611 of 1994, and judgment dated 26.09.2007 passed by learned III-Additional Sessions Judge, Karachi South, in First Rent Appeal No.528 of 2001 and has prayed as under:-- "The petitioner therefore humbly prays that this Hon'ble Court may be pleased to set-aside the impugned judgment/order dated 26.9.2007 and 18.5.1998 passed by learned respondents Nos.2 and 3 in Rent Case No.1611/1994 and FRA No.528/2001 and FRA No.528-A/2001 (State Life Insurance v. Messrs Group Marketing (Pvt.) Ltd.) and be pleased to order fixation of fair rent at the rate of Rs.16/- per sq. ft. per month from the institution of Rent Case No.1611/94 (State Life Insurance Corporation v. Messrs Group Marketing (Pvt.) Ltd.) as fair rent of premises in question, which will be made operative for three years from the date of institution and in order to do complete justice to the parties after 3 years by invoking the provisions of section 9(2) of the Sindh Rented Premises Ordinance, 1979 the said rent may be enhanced @ 10% every year in the interest of justice. "
2. The facts giving rise to the present petition are that the Petitioner is a body corporate, owner and landlord of the building constructed over plot of land bearing Survey No.RY-5-2/1, Railway Quarters, Karachi, known as State Life building No.1, I. I. Chundrigar Road, Karachi. The Respondent No.1 is their tenant in respect of a portion of office space measuring 400 quare Feet at the first floor of said building (hereinafter called as "said premises') w.e.f. 01.08.1991, at the rent of Rs.1600 @ Rs.4 per Square Feet per month, excluding water and electricity charges. Due to increase in the costs of construction and maintenance charges, present Petitioner, after three years from the date of occupation of the premises, filed an application under Section 8 of the Sindh Rented Premises Ordinance, 1979, for fixation of fair rent at the rate of Rs.16/- per square feet prevailing in similar premises, from the date of institution of the case.
3. The above application was contested by the Respondent No.1/ opponent, .Written Statement was filed, wherein they denied the claim of the Petitioner and stated that they are tenant of self- constructed portion in the building, at a monthly rent of Rs.1600/- per month since 01.08.1991. The entire office premises with all attachments, doors, windows, structure, including fittings and fixtures was constructed by themselves, therefore, the demand for increase in rent at the rate of Rs.16/- per square feet per month was highly exorbitant and unjustified.
4. Before the Court of learned Rent Controller, the Petitioner filed Affidavit-in-Evidence of one Muhammad Akhlaq, Deputy Manager, Real Estate Department, while Respondent No. l/opponent also filed Affidavitin-Evidence of one Syed Sabir Ali.
5. Upon pleadings of the parties, following points for determination were formulated:--
1. Whether the applicant is entitled for fixation of fair rent?
2. What should be fixed the rate of rent of the case premises?
6. After hearing both the parties, learned Rent Controller allowed the application by increasing rate of rent at 100% vide order dated 18.05.1998.
7. The above order was challenged by both the parties in First Rent Appeal before the learned III- Additional Sessions Judge, Karachi South, who vide common Judgment dated 26.09.2007, upheld the order of learned Rent Controller and dismissed the Appeals. Thereafter, present constitutional petition has been filed before this Court by the Petitioner.
8. I have heard learned counsel for the parties and perused the record.
9. It is contended by Mr. Zahid Hussain; learned counsel for the Petitioner, that the Judgment dated 26.09.2007 and order dated 18.05.1998 passed by the respective Courts below are not sustainable in the eyes of law as both decisions are based on misreading of evidence, thus illegal and have resulted in absolute miscarriage of justice. It is further contended that the rent case under Section 8 of the SRPO, 1979 was filed in the year 1994 and thereafter in appeal learned III-Additional Sessions Judge, Karachi South, decided it on 26.09.2007 by dismissing F.R.A. filed by the Petitioner as well as Respondent No.1; maintaining the order dated 18.05.1998 passed by Respondent No.3, increasing 100% rent of the existing rent of the premises as fair rent of the said premises, whereas in the intervening period of 13 years, the rent of similar premises in the adjoining locality has increased many folds. Similarly, the cost of construction, maintenance, repairing charges, water, conservancy charges have also been considerably increased as compared to the year 1994. It is further submitted that the Petitioner before the learned Rent Controller produced all the relevant evidence in the shape of rent agreements with other tenants, which show that they are paying rent at the rate of Rs.16/- per square feet to Rs.24/41 - per square feet, therefore, they are entitled for increase of rent as per their prayer made in the instant constitutional petition. In support of his contentions, learned counsel for the Petitioner has relied upon the following case law: I. 2009 YLR 1124 [State Life Insurance Corporation of Pakistan, Karachi v. Messrs Victor Restaurant and others", II. 2010 SCM R 745 [Messrs Victor Restaurant v. State Life Insurance Corporation of Pakistan and others], III. 2001 SCM R 1103 [Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan], IV. 2010 SCM R 737 [Messrs Oceanic International (Pvt.) Limited v. Messrs Lalazar Enterprises (Pvt.) Limited and others], V. 2009 YLR 204 [Mukhtarul Omar v. Messrs State Life Insurance Corporation of Pakistan and others], and VI. 1995 CLC 1441 [Sultan Ali v. Mst. Khatija Bai].
10. On the other hand, it is contended by the learned counsel for Respondent No.1 that they are paying rent at the rate of Rs.1600/- per month and still ready to pay rent as per above rate w.e.f.
11. 26.09.2007. It is further contended that they have never remained defaulter in the payment of rent which is already paid up to December of this year. It is also pointed out by learned counsel for Respondent No.1 that the premises was constructed by the Respondent No.1 itself and no facilities are being provided to them by the present Petitioner. In fact premises was handed over as an open space not in the shape of any proper constructed office, therefore, their case cannot be compared with other tenants. In support of his contentions, learned counsel for Respondent No.1 has relied upon the following case law:--- I. 2007 MLD 131 [Habib Bank AG Zurich v. Nazir Ahmed Vaid and others], II. 2913 ML D 105 [Messrs Muslim Commercial Bank Ltd. v. S. M. Inam and others], III. 2001 SCM R 1103 [Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan], and IV. 1987 CLC 2182 [Abdul Ghaffar v. Noor Jahan Malik].
12. I have considered the arguments and perused the case record. It is evident from perusal of case record that the contesting Respondent is in possession of said premises since 01.08.1991, but there is no written tenancy agreement between the parties. In this regard specific reference has been made by the Petitioner in para 2 of the rent case, which fact has not been disputed or denied by the Respondent No. 1. Thus, it is admitted position from record that area in possession of the Respondent is about 400 Square Feet situated on first floor of the building and was let out to the Respondent No.1 on 01.08.1991 at the rate of Rs.4/- per Square Feet and since then till the date of filing of rent case in the year 1994, there has been no increase in the rate of rent. The perusal of the Order of the learned Rerit Controller dated 18.05.1998 reveals that enhancement in the rate of rent has been allowed to the Petitioner by 100% increase at the rate of Rs.8/- per Square Feet from the date of institution of rent case i.e. 05.10.1994, which order has been maintained by the Appellate Court without any modification vide its order dated 26.09.2007, while no petition was filed by the Respondent No.1 for challenging the Appellate Court order affirming the judgment of the Rent Controller.
13. In the light of above facts and circumstances, the points for consideration in this petition are: "Whether the Petitioner was entitled for enhancement of rent @ Rs.16/- per Square Feet as prayed for.
14. "Whether the Petitioner was further entitled for periodical increase in the rate of rent during the pendency of litigation, which has taken more than 23 years."
15. Taking up the first point, I have perused the evidence brought on record by both the parties through their respective witnesses Muhammad Akhlaq son of Muhammad Miskeen and Syed Sabir Ali son of Tauqir Ali. The witness of the Petitioner in para 6 to para 12 of his affidavit-in-evidence has made specific reference of several other tenancy agreements with other tenants of the same building and has also produced copies of those tenancy agreements as Exs. A/2 to A/15. Moreover, to show the trend of increase in rate of rent in the same building, in paragraph 14 and 15 he has also brought on record other facts coupled with documentary evidence as Exs.A/26 to A/35 to show increase in several taxes payable by the landlord, whereas in the cross-examination these facts have not been specifically disputed by Respondent No. 1 . On the other side, the only defence set up by Respondent No.I to question increase in the rate of rent is that the whole construction was carried out by them. But at the same time in this regard Respondent No.1 has failed to produce any documentary evidence or evidence of some independent witness to substantiate its assertions.
16. The case law referred by the learned counsel for the Respondent is also distinguishable and not applicable to the facts and circumstances of the present case.
17. Keeping in view these facts and provisions of section 8 of SRPO, 1979 and the guidelines given by the Honourable Supreme Court of Pakistan in case of M/s. Olympia Shipping and Weaving Mills Limited and another v. State Life Insurance Corporation of Pakistan (2001 SCM R 1103), I am of the opinion that the concurrent findings of both B the Courts below on the quantum of increase in the rate of rent are not based on proper appreciation of evidence and contrary to the spirit of section 8 of the SRPO, 1979. This being the position, in order to avoid any injustice to the Petitioner, I order increase in rate of rent @ Rs.10/- per Square Feet from the date of institution of rent case.
18. Reverting to the other point, it may be observed that this Court is not debarred from taking into consideration the changed circumstances and subsequent developments, which had taken place during the pendency of proceedings, otherwise it will amount to abuse of the process of law that Respondent No.1 will be deemed absolved of his liabilities to pay rent at the increased rate for a period of 23 years, which have been consumed during this litigation. Therefore, I order that after three years from the date of filing of the Rent Case by the present Petitioner i.e. 05.10.1997, Petitioner will be entitled for further increase in the rate of rent @ Rs.5% per annum, as it is a matter of common experience and knowledge that during this period, the cost of construction, maintenance of building, government taxes have increased considerably, besides this, rate of inflation is yet another additional factor, which justifies such relief to the Petitioner.
19. Present Petition is therefore allowed; orders of the two Courts below are set aside in the terms that Petitioner is entitled for increase in the rate of rent at Rs.10 per sq. ft. and also further increase at the rate of Rs.5% per annum w.e.f. three years after the filing of the rent case i.e. 05.10.1997.