MUHAMMAD SALEEM JESSAR, J.---By this single judgment I, propose to dispo se of abovesaid two constitutional petitions as the landlord in both the petitions is one and the same, besides the factual as well as legal aspects in both the cases are also almost same.
2. Through these Constitutional Petitions the petitioners / tenants have challenged Judgments both dated 04.01.2016 handed down by learned District Judge, Karachi South whereby he allowed F.R.As. Nos.149/201 1 and 147/201 1 filed by respondent No.2 / landlord in these petitions and set aside the Orders both dated 21.01.201 1 passed by learned VT-Rent Controller , Karachi South whereby he dismissed Rent Case No.1368/2001 (Re: Messrs Standard Insurance Company Ltd. v. Messrs Associated Agencies Limited) and 1366/2001 (Re: Messrs Standard Insurance Company Ltd. v. Messrs Banda Nawaz Ltd.) filed by respondent No.2 in both the petitions.
3. Brief facts giving rise to the filing of instant petitions are that respondent No.2, Messrs Standard Insurance Company Limited, (hereinafter referred to as 'the landlord') had filed two rent applications under Section 8 of the Sindh Rented Premises Ordinance, 1979, bearing Rent Case No.1368/2001 and Rent Case No.1366/2001 against the petitioners in both the petitions respectively (hereinafter referred to as 'the tenants'), asserting therein that opponents / petitioners are their tenants in respect of aforesaid demised premises at the monthly rent of Rs.495/- and 650/- respectively . According to the landlords, since inception the monthly rent of the demised premises has not been enhanced. It was further asserted that due to influx in value of rupee and the increase in the cost of construction and repairs, the existing rate of rent is insuf ficient to meet the necess ary expenses of the building. It was further averred that the rent of similar premises situated at I.I. Chundrigar Road in the similar circumstances, in the same or adjoining locality is ranging from Rs.25/- to Rs.30/- per Sq: Ft. The property tax of Rs.1,29,870/- annually was proposed by the Excise & Taxation. Department and the landlord paid Rs.69,901/- as tax on 02.3.2000 for the period of 1999-2000 levied by the Excise and Taxation Department. Besides, the KMC, Water and Sewerage Board also increased their charges as compared to previous years, but the tenants despite requests made by the landlord failed to enhance the rent, hence landlord filed aforesaid rent applications for fixation of fair rent of the demised premises at the rate of Rs.25/- per Sq. Ft. from the date of filing of the application.
4. After having been served, the tenants contested the rent applications by filing written statements, wherein they admitted to be tenants of the landlords in respect of demised premises at the monthly rent, as claimed by the landlord; however , they denied that the landlord ever requested for enhancement of monthly rent. According to the tenants, the monthly rent of the demised premises is fair and proper looking to the condition of the building and the landlord never incurred any expense on repairing / maintaining the building. The tenants denied that the rent of similar premises situated at I.I. Chundrig ar Road in the similar circumstances, in the same or adjoining locality is ranging from Rs.25/- to Rs.30/- per sq. ft. The tenants further denied rest of the claim of the landlord and requested for dismissal of rent applications.
5. It may be pointed out that initially the rent applications were decided by learned 1st Rent Controller , Karachi South vide two separate orders both dated 31.7.2004, which were assailed in F.R.As. Nos.1 12/2004 and 111/2004, which were decided by learned V-Additio nal District Judge, Karachi South vide two separate orders both dated 31.10.2006, who modified the rate of rent and fixed the rent at the rate of Rs.5/- per Sq. Ft. for 2803 sq. ft. of the demised premises, however , the said orders were challenged before this Court in C.P. No.S-59/2007 and consequently , both the orders were set aside vide judgment dated 04.11.2008 and matter was remanded back to the trial Court. After the remand, both the parties led their additional evidence and the learned Rent Controller finally dismissed the rent applications vide two separate orders both dated 21.01.2010.
6. Being aggrieved by and dissatisfied with the said orders dated 21.01.2010, the landlord preferred appeals before the Appellate Court which were allowed vide impugned judgments, hence instant constitutional petitions by the tenants.
7. I have heard learned counsel for the parties and have gone through the material available on the record.
8. Learned counsel for the petitioners contended that learned Rent Controller had passed the judgment after properly appreciating the evidence adduced by the parties as well as the relevant law and has furnished sound and cogent reasons for his findings; however , learned Appellate Court has reversed the findings of the Rent Controller without appreciating the evidence and the law on the relevant points, thus the same is not sustainable in law and on facts. He further contended that learned Appellate Court while directing the petitioners/tenants to deposit arrears for the last more than 12 years has acted in violation of the law by placing heavy burden on the shoulders of the tenants. He further submitted that the rent of similar premises in the vicinity is at the most Rs.1.50 per sq.ft. Since 1985, as such the fair rent fixed by the Appellate Court in respect of the premises in question seems to be harsh and exorbitant. He further contended that the landlord has not furnished any proof regarding rate of rent, so also has failed to establish that they have incurred any expenses on the maintenance or repair of the building in question, nor have they produced any proof showing that government has levied any new taxes. He further contended that the witness of the landlord namely Mohammad Ishtiaq had no proper authority or resolution passed by the Company , authorizing him to sign pleadings and give evidence and produce documents on their behalf. He further contended that learned Appellate Court did not take into consideration the admissions made by the witnesses of the landlord in their respective cross-examinations. According to him, at the best the fair rent could have been determined from the date of passing of the impugned judgment and not from the date of the rent applications. He prayed for allowing instant petitions and setting aside the impugned judgment passed by the Appellate Court. In support of his contentions he relied upon the case-law reported in 2007 MLD 131, PLD 2005 Karachi 521, PLD 2007 Karachi 485, 2008 CLC 517 and an unreported judgment dated 06.03.2018 passed by Single Bench of this Court in C.P . No. S-1 118/2017.
9. It may be pointed out that in prayer clause (IV) of the instant petitions, the petitioners/tenants have made an alternate prayer to the effect, In the alternative to modify the impugned judgment and Fix the Fair Rent at Rs.4.00 per sq. ft. Per month from January 2016 or at the best from 1st January 2013 , to meet the ends of justice, equity and fair Play ."
10. Conversely , learned counsel for respo ndent No.2/landlord, while supporting the impugned judgment passed by the Appellate Court, submitted that the Appellate Court has delivered the impugned judgment in accordance with the law after taking into consideration each and every point involved in the case, as such the same does not call for any interference by this Court in exercise of its constitutional jurisdiction. He further contended that even the constitution petitions itself are not maintainable for the reasons that disputed questions of facts have been raised therein, and that the petitioners have not come before this Court with clean hands. According to him, .now it is well settled that the fair rent is to be determined from the date of the rent application; however , if any other date is fixed for fixation of fair rent, then reasons must be assigned for doing so. He further contended that the impugned judgment of the Appellate Court does not suffer from any illegality or material irregularity , thus the same does not call for any interference by this Court. According to him, it is not necessary that all the four ingredients mentioned in section 8 of the Sindh Rented Premises Ordinance, 1979, are to be considered, rather availability of any one of the said ingredients is sufficient under the law. Lastly , he prayed for dismissal of the instant petitions. In support of his contentions, he relied upon the case-law reported in 2010 SCMR 745, 2015 MLD 674, 2013 MLD 339, 2014 SCMR 630, 2010 SCMR 954 and 2015 YLR 947 .
11. In the instant case, the relevant provision of law which attracts to the controversy between the parties is Section 8 of the Sindh Rented Premises Ordinance, 1979, therefore before proceeding further it would be advantageous to reproduce hereunder the contents of Section 8 of the Ordinance: "8. (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 or 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 tax 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."
'12. From above, it seems that as per aforesaid provision of law following factors are to be considered while determining / fixing the fair rent of any property: a) The rent of similar premises situated in the similar circumstances in the same or 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 The annual value of the premises, if any , on which property , tax is levied.
13 Now it is to be seen as to whether all the four ingredients must exist at the time of determination of the fair rent or existence of any one of the aforesaid four ingredients would be sufficient. In this connection guidance could he taken from the recent decision of honourable Supreme Court given in the case of State Life Insurance Corporation of Pakistan and another v. Messrs British Head and Footwear Stores and others reported in 2018 SCMR 581 wherein it was held as under: "At this juncture we would like to reiterate that by now it has been settled by this Court that it is not necessary for a landlord to prove hike in respect of all four factors as detailed in Section 8 of the Ordinance, 1979 or that all four factors must co-exist in each and every case seeking fixation of fair rent. In fact, the prime factor has always been the prevalent market -rent of the similar premises situated in similar circumstances, in the same or adjoining locality ...."
14. In another case of Habib Bank Limited v. Rais Ahmed Khan reported in PLD 2017 Karachi 542 this Court held that a landlord while making a request for fixing the fair rent is not bound to satisfy all the four factors mentioned in Section 8 of the Sindh Rented Premises Ordinance, 1979 and that the Rent Controller was authorized to fix the fair rent of the property even upon fulfillment of only one condition . In the instant case from the perusal of the evidence of witness of the landlord it seems that he has stated on oath that the value of the building has been increased on which property tax of Rs.1,29,870/- annually was proposed by the Excise and Taxation Department and appellant paid Rs.69,901/- as a tax on 02.3.2000 for the period of 1999-2000 and he produced copies of PT-1, so also the paid-up challan. He further deposed that due to influx in value of Rupee and the increase in the cost of construction and repair , the existing rate of rent is insuf ficient to meet the necessary expenses of the building. Despite the fact that the said witness was cross-examined by learned counsel for the tenants he could not shake/shatter his evidence in respect of payment of the taxes etc. The tenants could not produce any tangible evidence, oral or documentary , in rebuttal to such evidence of the landlord.
15. It is also worthwhile to point out at this stage that the petitioners/tenants them selves have made an alternate prayer in Prayer Clause (IV) to the effect, "In the alternative to modify the impugned judgment and Fix the Fair Rent at Rs.4.00 per sq. ft. Per month from January 2016 or at the best from 1st January 2013 , to meet the ends of justice, equity and fair play." Now it seems that the Appellate Court has also determined the fair rent at the same rate i.e. Rs.4.00 per sq. ft. It means that the petitioners / tenants have no grievance upon the fixation of fair rent at the rate of Rs.4.00 per sq. ft. but their only grievance is that the fair rent at the said rate of Rs.4.00 per sq. ft. may be fixed not from the date of filing of rent application by the landlord but from January , 2016 or at least from 1st January , 2013.
16. In this view of the matter , it is to be seen as to what principle has been laid down by the Superior Courts in respect of this issue. In this connection, it would be advantageous to refer to a decision of Honourable Supreme Court given in the case of Messrs Victor Restaurant through Partners v. State Life Insurance Corporation of Pakistan and others reported in 2010 SCMR 745 wherein it was held as under: "5. In the normal circumstances, the fair rent is required to be D enforced from the date of application , as the said data is the date from which the fair rent is to be determined after keeping in view the conditions mentioned in section 8 of the Ordinance. However , if the learned Rent Controller fixes the other date he can take the date but for that he must assign reasons to do so. Thus there is no fault in the order of learned High Court in concurring with the order of the Rent Controller . Therefore, the same is maintained."
17. There are also other cases wherein similar observations have been made by the Superior Courts; however , for the sake of brevity only one decision of Honourable Supreme Court is referred. The counsel for the petitioners/tenants could not refer any other decision of honourable Supreme Court Contrary to above.
18. Needless to observe that the tenant has been in possession of the premises in question for last more than 50 years and no increase has ever been made in the monthly rent since the inception of tenancy . It is not concealed from the eyes of any one that there is enormous difference between the cost of the land as well as cost of construction / material prevailing at the time of commencement of tenancy and that prevailing in the present days.
Besides, the rate of old taxes has also been increased exorbitantly and new taxes have also been imposed.
Admittedly , the premises in question is situated at I.I. Chundrigar Road, which is heart of the city and is included in posh as well as commercial area. Even the witness of the tenants namely , Abdul Wahid Qureshi, in his cross- examination admitted, "It is correct that as it is an old building therefore it is a beautiful building situated I.I.
Chundrigar Road. It is correct that our office / tenement faces towards the main road of I.I. Chundrigar Road .
Muhammadi House is situated approximately 100/200 Sq. yards ---- it is correct that if new building is constructed the rate of construction has been increased by 100%. The property tax might have enhanced but I do not know exactly how much I say that subject to availability of the maintenance the rate of rent be enhanced ." Needless to emphasize that every inhabitant of city of Karachi is very well aware that what could be the value as well as the rate of rent of such a tenement situated at the posh and commercial area and heart of city and that too at renowned road i.e. I.I. Chundrigar Road. In this view of the matter , and even agreed by the tenants themselves in prayer clause (IV), the rate of rent i.e. Rs.4.00 per sq. ft. could not, from any angle, be said to be on higher side, rather it seems to be quite nominal. The payment of arrears from the date of filing of rent application also seems to be proper in view of legal position settled by the. Superior Courts in this regard.
19. In view of aforesaid facts and legal position, instant Petitions are dismissed. Consequently , impugned judgments both dated 04.01.2016 handed down by learned District Judge, Karachi South whereby he allowed F.R.As. Nos.149/201 1 and 147/201 1 filed by respondent No.2 / landlord thereby setting aside the Orders both dated 21.01.201 1 passed by learned VIII-Rent Controller , Karachi South whereby he dism issed Rent Case No.1368/2001 (Re: Messrs Standard Insurance Company Ltd. v. Messrs Associated Agencies Limited ) and 1366/2001 (Re: Messrs Standard Insurance Company Ltd. v. Messrs Banda Nawaz Ltd.) filed by respondent No.2, are hereby maintained. The petitioners / tenants are directed to pay/deposit difference/arrears of the rent, as mentioned in the impugned judgment dated 4th January , 2016, within a period of 20 days from the date of this judgment.