1. ' This appeal has been filed challenging the orders passed by the learned First Senior Civil Judge and Rent Controller, Karachi East, whereby the application of the present respondent has been allowed for enhancement of rent. The case of the present respondent is that she is the owner/landlady of the bungalow bearing No, .1M-1/69 Lalchand Hasumal Road, Parsi Colony, Karachi and that she has let out the first floor of the said bungalow to the present appellant. It is the case of the present respondent/landlady that originally the rent of the first floor of the said bungalow since the year 1974 was Rs,42 per month which was subsequently enhanced to Rs,100 per month in the year 1982. The portion under tenancy is said to be comprising of 3 rooms, one Drawing and Dining Room, one Courtyard, Passage, Store and a tin shade. The respondent/lady claimed the enhancement of rent to Rs,2,000. The tenant present appellant contested the proceedings and filed his written-statement wherein he denied that he was in occupation of the premises stated above.
2. He also stated in his written-statement that he agreed to enhancement of rent in consideration of increase in taxes and cost of construction and repair which was undertaken by the applicant but never carried out and that the rent of Rs,100 per month is more than adequate and fair in view of the old and neglected condition of the premises and in accordance with the prevalent rent of the locality. The learned Rent Controller framed the following issues:
(1) What is the fair rent?
(2) What should the order be?
3. ' The landlady filed affidavit-in-evidence of her husband and attorney namely Muhammad Zaki in support of her contention and also filed the affidavit-inevidence of one Mohammad Shabbir, both of whom were cross-examined. The opponent filed his own affidavit-in-evidence and that of one Aftab Ahmad Shaikh. They were also cross-examined. The learned Rent Controller on the basis of the above-said evidence fixed the rent of the said premises at Rs,800 per month. Being aggrieved from the order the present appellant/tenant has filed this appeal.
4. ' I have heard Mr. M.M. Mahmoodi, Advocate for the appellant while none is present for the respondent. Mr.M.M. Mahmoodi has argued that the orders of the Rent Controller are arbitrary and based only on the enhancement in water charges whereas the other factors required to be considered under Section 8 of the Sindh Rented Premises Ordinance, 199 have not been dilated upon by the Rent Controller. Mr. M.M. Mahmoodi during the course of arguments has submitted that of course there is enhancement in water tax from Rs,200 to Rs,3,200 per annum. Learned counsel for the appellant has submitted that in these circumstances the rent at the most could have been enhanced to Rs,200 to Rs,300 per month and not to Rs,800 per month which is very exorbitant enhancement. I have considered the contention of the learned counsel and have also gone through the record. The record shows that in the present case an inspection was ordered by the learned Rent Controller which revealed that the present appellant is in occupation of the following accommodation: "(a) One room measuring 13' x 14-1/2"
(b) One room measuring 19' x 12'.
5. ' One hall measuring 30' x 14'. (this room/hall has been partitioned by a wooden wall at the length of 13 ft.).
6. (c)
(d) One open courtyard measuring 20' x 5'.
(e) One small store measuring 8' x 5'.
(f) Towards Eastern-side one covered gallery measuring 30' x 5'.
(g) Towards Eastern side of the Gallery one store wooden-made, one tin-roof, kitchen and one R.C.C. Roof kitchen are constructed.
(h) Towards Southern side of the said gallery one toilet and one bathroom with R.C.C. Roof are constructed.
(i) There is an open gallery towards extreme Eastern side of the Bungalow which is about 5 1/2 ft."
7. ' The above said site inspection shows that the appellant is in occupation of quite a big house in the residential area in Parsi Colony near Soldier Bazar, Karachi. Learned counsel for the appellant has also submitted that water charges rate has also been increased 16 times from Rs,200 to Rs,3,200 per month. There is also a document produced by the applicant on record which is Form PT I from the Excise and Taxation Department which shows an increase in gross annual rental value. This document has also not been taken into consideration by the Rent Controller. It would be pertinent to reproduce the provisions of section 8 of the Sindh Rented Premises Ordinance, 1979 which reads as under:- "8. (i) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following fact ors:-
(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
(b) 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, of 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 the section 9 be determined or, as the case may be, revised after taking such charges into consideration."
8. ' From the above discussion it would be seen that the Rent Controller has taken into consideration only the enhancement in the water charges in ordering increase in rent and fixed the same at rate of Rs,800 per month while the other factors have not been taken into consideration. The evidence on record to show prevalent rent in the locality that has been given by the tenant's witness Shaikh Aftab Ahmad shows he was paying Rs,192 but the same was for a flat in the locality and not for first floor of a bungalow of such larger accommodation as is in occupation of the present appellant.
9. The above circumstances show that the rent fixed by the learned Rent Controller is based on arbitrary discretion and no cogent reasons have been assigned for the same. It may be observed that while fixing the fair rent, Rent Controller is required to take into consideration the A factors as mentioned in the above-quoted section of the Ordinance and the enhancement of rent is to be made proportionately giving sound reasons therefor and should not be arbitrary.
10. ' In the result of the above discussion, this appeal is accepted and the order of the Rent Controller is set aside and the case is remanded to the Rent Controller for re-hearing of the parties on the basis of the evidence on record and to give finding in accordance with requirement of the provisions under section 8 of the Sindh Rented Premises Ordinance, 1979. However, there will be no order as to costs.