1. ' The respondent filed an application under section 8 of the Sindh Rented Premises Ordinance, 1979 for fixation of fair rent of Room No, 128 to 131 located on the first floor of Mohammadi House situated on I.I. Chundrigar Road, Karachi. The appellant has been tenant of this premises from the year 1958.
2. At the time the application was filed, it was paying Rs,612.53 P.M. As rent. It was claimed by the respondent that the appellant occupies 2,306 sq. Ft. Which is located in a commercial area where commercial firms, offices and head offices of scheduled banks are located. The appellant submitted that it has paid Rs,100,000 as pugree to Mr. Farrukh with the consent of the then landlord who had dispute with the said Farrukh Baig and wanted to eject him and the former landlord had assured that because of payment of pugree there will be no increase in rent, nor the appellant would be dispossessed for any reason. It was denied that the rent is on the low side. It was pleaded that the building is 30 years old without amenities available to newly-constructed buildings.
3. Neither there is cleanliness, nor any arrangement for maintenance of the building and hence there is no justification for increase of rent. It was denied that there was increase of taxes and that no such proof has been provided. The learned Controller by the impugned order fixed the fair rent @ Rs,2 per sq. Ft. From April, 1989 onwards. On the basis of this calculation, the rent will come to Rs,4,700 P.M. Previously the rent was @ .25 per sq. Ft.
4. ' Mr. J.H. Rahimtoola the learned counsel for the appellant has contended that the appellant has a vested right to continue without any rise in the rent. In this regard the learned counsel has referred to Riazuddin v. Mohammad Razi PLD 1965 Kar. 241 and contended that the appellant being a tenant since 1958 had acquired a vested right under the law at the commencement of the Karachi Rent Restriction Ordinance, 1953 and therefore application for increase of rent was not maintainable. In this judgment it was observed that Karachi Rent Restriction Act provided a period of 120 days for filing application for fixation of fair rent and where this right was not availed, after the repeal of the Ordinance by the West Pakistan Urban Rent Restriction Ordinance, 1959 the vested right was created in favour of the tenant to pay the agreed rent. This view was taken because of section 4 of the West Pakistan General Clauses Act and particularly as the West Pakistan Urban Rent Restriction Ordinance 1959 did not show any different intention as it provided a limitation of 120 days for filing application for fair rent from the date of occupation. However, on the repeal of Sindh Urban Rent Restriction Ordinance, 1959 by the Sindh Rented Premises Ordinance the said vested right could not continue as a different intention is shown by not fixing any period of limitation for filing application for fair rent. On the principle laid down by Riazuddin's case no vested right was created in favour of the appellant.
5. ' Mr. Rahimtoola then contended that old tenancy and new tenancy could not be taken at par and further that the provisions of section 8 have not been duly applied.The learned counsel has referred to Banarsi Silk Cloth v. Mst. Amna Bai 1986 CLC 1570 where the following observation was made:-- "All the four factors mentioned in section 8 have to be considered while fixing a fair rent. However, if any one of those factors are not available then it may affect the quantum of rent to be fixed under it."
6. ' Mr. Rehmat Elahi relying on Abdul Ghafoor v. Noor Jehan 1987 CLC 212 contended that the rents of similar premises situated in similar circumstances in the same building have been taken into consideration for fixing the fair rent and the order is perfectly justified. The learned Controller after recording the evidence and on the basis of lease agreement in respect of tenants in the same building came to the conclusion that the rent ranges from Rs,3 to 6.25 per sq. Ft. From the year 1982.
7. It is an admitted position that the applicant was inducted into the tenancy in the year 1958. From the evidence it seems that the respondent is incurring expenditure for maintenance of the building and the lifts. So far increase in taxes is concerned, a judicial notice of this fact can be taken that from the year 1958 upto the date of filing of application there has been substantial increase in the water and conservancy charges. A perusal of section 8 will show that four factors required to be considered are the rent of similar premises situated' in similar circumstances in the same and adjoining locality, the rise in cost of construction and repair charges, the imposition of new taxes and the annual valuation of the premises if any on which the property tax is levied. In the affidavit filed on behalf of the respondent entire emphasis has been on the rent of similar premises situated in the same building. In the affidavit, the respondent has filed copies of lease deeds made with various other tenants in the same building. It has been also alleged that from 1974 Govt. Of Sindh has imposed 5% betterment tax on the monthly rental and the Water Board has increased the water rate on the commercial buildings which is now being realised @ 9%. A statement of expenditure incurred on the maintenance and repair of the Mohammadi House and the repair and maintenance of the lift from the year 1980 to 1983 has been filed and there seems to be substantial amount spent by them. In cross-examination there does not seem to be serious challenge to the imposition of new taxes and increase in water charges. From the statement of expenses on repair and maintenance there seems to be a progressive increase during the year 1985-86 and 1986-87.
8. Therefore, the respondent has been able to establish the rate of prevailing rent in the same locality and same building, the rise in the repair charges and the imposition of new taxes but no evidence has been produced about the annual rental valuation of the property. The respondent has thus established three factors and as the rent prevalent in similar premises is from A Rs,3 to 6 per sq. Ft.
9. The learned Controller on the basis of evidence produced and taking into consideration the fact that the tenancy had commenced in the year 1958 fixed the rent at Rs,2 per sq.Ft. The Controller has judiciously taken into consideration provisions of the law and the facts and has reduced the rent @ of Rs,2 per sq. Ft. Instead of Rs,3 which is the rent paid for similar premises.
10. ' The learned counsel for the appellant contended that the appellant had paid Rs, one lac to the previous tenant with the consent of the former landlord. This fact has been denied. In 1958 the payment of pugree was prohibited under law therefore, for the purposes of this application any amount paid illegally or in contravention of law cannot be taken into consideration.
11. ' The appeal is therefore, dismissed.