' I propose to dispose of by this judgment F.R.As. Nos. 404/90 and 437/90 as the facts, parties, property and impugned order involved in both the F.R.As. Are the same.
2. By the impugned order dated 13-8-1990 the learned II Senior Civil Judge and Rent Controller, Karachi Central, decided the rent application filed by the respondent/landlord for fixation of fair rent under section 8 of the Sindh Rented Premises Ordinance, 1979. Learned Rent Controller fixed the fair rent at the rate of Rs,2,000 per month in respect of the property bearing No,G-27. Block No,1, North Nazimabad, Karachi, which has been on rent with the appellant/tenant since 1970 by the owner Sirajul Islam at the rate of Rs,400 per month. Subsequently in 1977 rent was increased to Rs,500 and thereafter the rent was increased from Rs,500 to Rs,890 per month. Sirajul Islam migrated to Bengal and the control of the property was taken over by the Administrator, Abandoned Property Organization and the rate of rent was increased from Rs,500 to Rs,890.
Muhammad Rafiullah son of Moulvi Sadruddin Ahmed (respondent) contested the matter and finally he was declared owner of the property in question.
3. In February 1988 Muhammad Rafiullah sent a notice to the appellant Mst. Mehrun Nisa demanding rent at the rate of Rs,890.
4. The Administrator, Abandoned Property Organization also sent a notice to appellant Mehrun- Nisa that she should pay the rent to Rafiullah at the rate of Rs,890. But Rafiullah did not accept the rent. Subsequently Mehrun-Nisa remitted the rent to Muhammad Rafiullah through Money Order at the rate of Rs,890 which was accepted by Muhammad Rafiullah.
5. On 2-7-1988 Muhammad Rafiullah submitted an application in the Court of Rent Controller for fixation of fair rent and after taking into consideration the evidence adduced by both the parties the learned Rent Controller fixed the fair rent at the rate of Rs,2,000 per month.
6. I have heard Mr. Muhammad Saleh Memon, learned counsel for the appellant, who has taken me through the impugned order dated 13-8-1990 from which it is apparent that fair rent has been fixed by the Rent Controller without considering the four factors of section 8(1) of the Sindh Rented Premises Ordinance, 1979. For the sake of convenience - same are reproduced:-- "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 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.
7. Admittedly the learned Rent Controller has taken into consideration the fact that the building is in posh locality and Rs,2,000 per month as fair rent, is justified, The learned counsel for the appellant has relied upon a judgment of My Lord Mr. Justice Nasir Aslam Zahid, CJ, reported in 1992 M LD 1588 case of Abdul Hameed v. Abdul Ghani. Mr. Justice Nasir Aslam Zahid in the above judgment has relied upon Hon'ble Supreme Court's decision in Civil Appeal No, 818-K and others of 1990 (Mst.
Muneera Kaleemuddin and others v. Muhammad Alam and another) and His Lordship has observed as under:-- "Admittedly only the first factor has been taken into consideration by the Rent Controller in this case and not the other three factors. Learned counsel for appellant has relied upon a recent decision of the Supreme Court of Pakistan dated 6-6-1991 in Civil Appeal No, 818-K and others of 1990 (Mst. Muneera Kaleemuddin and others. Muhammad Mahboob Alam and another), which supports the contention of the learned counsel for the appellant. Para. 6 of the judgment of the Supreme Court is reproduced here:-- "In the present case, we have noticed that the learned Rent Controller solely determined the question of fair rent on the basis of the alleged prevalent rent, which was not warranted by law. In this regard, reference may be made to the case of Banarsi Silk Cloth v. Mst. Amna Bai (1986 CLC 1570), wherein one of us (Saleem Akhtar, J.) has held that it is incumbent on the Rent Controller to take into consideration all the four factors specified in section 8 of the Ordinance. However, we may observe that the failure of the landlord to bring on record material in respect of any of the above four elements to show increase, would not necessarily lead to the rejection of an application, but it may affect the quantum of fair rent.
4. The ratio of the aforsid judgment of the Supreme Court is fully applicable to the present case inasmuch as the Rent Controller has only considered one factor out of the four factors required to be taken into consideration for purpose of fixing the fair rent under section 8 of the 1979 Ordinance."
' He has also referred 1991 CLC 351 case of Muhammad Shafi Khan v. Meher Sultan:-- S. 8.--Fair rent, fixation of--Rent Controller while fixing fair rent, was required to take into consideration factors as mentioned in S.8 of Ordinance and enhancement of rent should be made proportionally to them giving sound reasons therefor and should not be arbitrary".
8. I have also heard Mr. S.M. Abbas, learned counsel for respondent. He has also filed FRA No, 437/90 against the same order dated 13-8-1990 passed by the Rit Controller in the same Rent Case and has contended that the impugned order is not sustainable in law as the learned Rent Controller has fixed the fair rent at the rate of Rs,2,000 per month whereas it should have been Rs,5,000 per month. He has also referred me to 1992 CLC 739--Case of Amanullah Khan v. Meher Ellani and others:-- ----S.8--Fair rent---Determination of---Points to consider----Ingredients provided for determination of fair rent, would be satisfied if case fell within any one of the four parts as enumerated in S.8 of Ordinance, 1979---Each of these four parts (a), (b), (c) & (d) of S. 8 was distinct and independent of the other three and whether a case fell within any one part or not, had to be judged by reference to the ingredients of that part and not of any other part---Ingredients of one part could not be projected in other parts, though the extent to which each of them might influence the decision would be materially different---Determination of fair rent by Rent Controller, was not dependent upon consideration of all four factors."
' He has also referred me to PLD 1993 Karachi 9 case of Messrs Eastern Automobiles (Private) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi:-- "---S. 8---Fair rent---Fixation-of---Rent Controller while fixing fair rent of premises, has to consider four ingredients mentioned in S.8 of Ordinance, 1979, but it is not necessary that all four factors should coexist---Existance of any one of four ingredients would be sufficient for fixation of fair rent if circumstances of particular case required."
9. The learned counsel for the respondent has contended that the Rent Controller has not considered the four factors incorporated in section 8 of the Sindh Rented Premises Ordinance, 1979 and that the rent so fixed i,e, Rs,2,000 is not fair and it should have been Rs,5,000 or more as it is not based on the four factors of section 8 of the Sindh Rented Premises Ordinance, 1979.
10. I have gone through the R&P as well as the authorities referred to above by the learned counsel.
11. Authority No,1 quoted by Mr. Muhammad Saleem Memon, learned counsel for the appellant is based on the orders of the Hon'ble Supreme Court in Civil Appeal No, 818-K/90.
12. I have found that the order of the learned Rent Controller fixing fair rent is not based on the four factors mentioned in section 8 of the A Sindh Rented Premises Ordinance, 1979 and the order is not sustainable.
13. In view of the authority No,1 which has reference to the order of the Hon'ble Supreme Court in Civil Appeal No, 818-K/90 I do hereby set aside the order dated 13-8-1990 and remand the case back to the learned Rent Controller for fresh decision.
14. Both of the parties will be at liberty to lead further evidence before the Rent Controller either by recalling their witnesses or examining more witnesses.
15. As the matter is pending since nearly 4 years, the Rent Controller is directed to dispose of-this matter within a period of 4 months positively after receipt of the R&P of this case. The office is directed to send the R&P to the Rent Controller immediately.
16. The parties will bear their own costs. These are the reasons of my short order dated 12-10-1994.