' These are cross-appeals arising from the order in Rent Case No, 274' of 1987 passed by the learned Controller and Senior Civil Judge, Karachi (East), on 6-11-1988, whereunder the learned Controller has fixed fair Rent of the disputed premises, effective December, 1988. Fair rent itself has been determined @ Rs,800 per month. The landlady appeals because, according to her, the effective date of fixation should have been the month following upon the submission of the application viz. April, 1987 and the rate at Rs,1,200 per month whereas the tenant questions the rate of fixation, inter alia, on the ground that the landlady, earlier to the filing of the rent case, had herself opted for and demanded enhancement at a lower figure of Rs,242 per month.
' On facts, originally when the premises was let-out, around 1970, the rate of rent is maintained by the tenant to have been Rs,100 per month. However, the parties, pursuant .To a compromise in rent Case No, 4151 of 1976 (dated 47-5-1978), are shown to have agreed that the rate, payable from June 1-1978, would be Rs,150 per month. Lately, upon legal notice, dated 25-2-1987, the landlady, inter alia, demanded increase, presumably under section 9(2) of the Sindh Rented Premises Ordinance, 1979, at the level of ten per cent annum, claiming enhanced rent at Rs,242 per month.
The tenant repudiated the unilateral revision of rent at the instance of the landlady per reply through counsel dated 4-3-1987. This was followed by submission of an application for fixation of Fair Rent under section 8 of the Sindh Rented Premises Ordinance, 1979, the application being lodged on 20-3-1987. As seen, the learned Controller, upon recording of evidence and hearing the parties, per order dated 6-11-1988, determined the Fair Rent of the premises at Rs,800 per month effective from December, 1988.
' Mr. Muhammad Sharif, the learned counsel for the appellant, has challenged the impugned order on several grounds, which may be summarised as follows:--
1. The rent of the premises having been determined in a rent case filed under the erstwhile Sindh Urban Rent Restriction Ordinance, 1959, such was not amenable to revision under the successor Ordinance of 1979 viz., the Sindh Rented Premises Ordinance of 1979.
2. Alternatively, the landlady, having opted for and chosen 10% per annum increase, apparently, in terms of section 9(2) of the Sindh Rented Premises Ordinance, 1979, either was herself estopped from claiming by way of Fair Rent anything in excess thereof or the Controller, on a rational furnished by the landlady herself, could not fix Fair Rent exceeding such figure namely, Rs,242 per month.
3. The impugned order is bad as it proceeds on in admissible evidence i,e, photostat copies of documents proffered in evidence. At any event, such documents were not proved, neither the scribes nor authors thereof having been examined. In the resulting situation, there was no evidence before the Controller as regards rents of similar premises situated in the similar circumstances in the same or adjoining locality, as envisaged in section 8(1) (a) of the Sindh Rented Premises Ordinance, 1979.
4. Rise in cost of construction, in terms of section 8(1) (b) of the Ordinance was irrelevant as the concept is inseparabe with rise in cost of repair charges, no repairs having ever been carried out.
5. The tenant-hold carried Pugree,,a factor not allowed due weightage.
6. Admittedly there was no introduction of new taxes, germane to section 8(1) (c) ibid. After the commencement of the tenancy.
' As relevant to section 8(1) (d) of the Ordinance increase in annual value of the premises, if any, was no more than Rs,10 in the cantext of taxes and Rs,12 by way of water charges, bringing a total of Rs,22 per month.
8. The tenant was also already paying maintenance charges at Rs,70 per month.
' From the side of the landlady Mr. Nisar Ali has controverted the arguments advanced on behalf of the tenant and has maintained as under:--
1. The Controller erred in not allowing Fair Rent to operate as from the month next after the presentation of the application.
2. In fixing Fair Rent the Controller could not divest himself from the permissive increase at 10% per annum under section 9(2) of the Ordinance which should have been an ingredient though not an exclusive one for determining Fair Rent.
' It would be inconvenient to deal with each of the contentions of the learned counsel seriatim though endeavor would be made to consider all objections in a contextual arrangement.
' In the first place as to the bar emerging upon an alleged earlier determination of rent, there is a dispute between the parties about the rate prior to the compromise dated 17-5-1978 in Rent Case No, 4151 of 1976, Mr. Nisar Ali maintaining that the previous rent of the premises had always been the same namely, Rs,150 per month but because the tenant started disputing the same and there was no written agreement of tenancy, a specific date of payment was to be determined and a non- controversial rate was to be manifested that such compromise was entered into and recorded, while Mr. Muhammad Sharif, for the tenant, urging that the rent prior to the compromise was Rs,100 per month which was enhanced to Rs,150 following upon the compromise dated 17-5-1978 and effective from 1-6-1978. Admittedly, there is no written agreement of tenancy between the parties except that covered by the compromise application dated 17-5-1978 in Rent. Case No, 4151 of 1976 and order of the same date therein.. Yet, it is nobody's case that the landlady was not issuing rent receipts prior to the institution of such rent case. If so, once the landlady asserted a particular rate of rent which the tenant denied, the burden of proving such rate shifted to the tenant, the landlady having discharged it negatively and also because the tenant was fixed with special knowledge of such matter in terms of Article 122, Qanoon-e-Shahadat, 1984, and could easily establish his plea by producing one or more rent receipts of which he alone could have been in possession. In, the absence of a previous written agreement of tenancy, which fact does not appear to be disputed, this was the best evidence in the matter and such has been withheld. It must, therefore, be found that there is no substance in the plea that rent was enhanced on 17-5-1978. Besides, and this is equally important, fixation of a fresh rate of rent by mutual agreement between landlord and tenant, in an ejectment matter cannot be equated with determination of Fair Rent in a proper case brought for that purpose and such a fixation would not come in the way of seeking evaluation of Fair Rent in a subsequent proceeding specifically taken for that purpose. A fixation of rent by mutual agreement in a Rent Case brought for determination of Fair Rent would, however, be on a different footing and ensure as Fair Rent, spelling out a subsequent bar such as, in law, that may be.
' The bar under section 9 of the Sindh Rented Premises Ordinance, 1979, in cases where Fair Rent of a tenant-hold has once been fixed, is covered in these words:- "9. Limit of Fair Rent.--(1) Where the fair rent of any premises has been fixed, no further increase there of shall be affected unless a period of three years has elapsed from the date of such fixation or commencement of this Ordinance whichever is later.
(2) The increase in rent shall not, in any case, exceed ten cent per annum of the existing rent."
' It will be seen that whereas Fair Rent may either be an increase or decrease of an existing rate, depending upon whether the landlord or the tenant has sought the relief, section 9(1) of the Ordinance only bars any increase thereof unless a period of three years has elapsed from the date of fixation of Fair Rent under the Ordinance or if such fixation relates back to the precursor law a like period has elapsed following upon the commencement of the Ordinance. Thus, if in May, 1978, what was agreed to between the parties could be termed as Fair Rent it could be sought to be revised by the end of 1982, but the modalities for that would have been different than those under section 8 of the Ordinance, as will be seem below. An the same since the fixation in May, 1978 did not constitute Fair Rent no bar under section 9 applied.
' The next objection relates to the choice of the landlady attemptedly raising the rent, tentamounting to an enhancement of the rate at 10% per annum in terms of section 9(2) of the Ordinance. It is to be observed that sections 7, 8 and 9 ibid., have been clubbed together by the legislature. Section 9 has already been reproduced whereas sections 7 and 8 of the Ordinance run as under:-- "7. Higher rent not chargeable.--No landlord shall charge or receive rent in respect of any premises, at the rate higher than that mutually agreed upon by the parties, and, if the fair rent has been fixed by the Controller in respect of such premises, at the rate higher than the fair rent.
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 t aancy; and
(d) the annual value of the premises, if any, on which property tax is levied.
' Where any addition to, or improvement in, any premises has been made or any tax or other public charges 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, withstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration."
' Thus, section 7 postulates that the landlord shall not charge or receive rent in respect of any premises at a rate higher Than that mutually agreed upon by the parties and where Fair Rent has been fixed in respect of such premises at a rate higher than the Fair Rent. Section 8 supra., contemplates the machinery and substantive law pertaining to the fixation of Fair Rent. Reading sections 7 to 9 aforesaid together it is plain that whereas subsistence of a mutually agreed rent is no bar for the landlord or tenant seeking a variation thereof in terms of section 8 there is an embargo as to time as well as quantum for any increase, once Fair Rent has been determined and that is where section 9 of the Ordinance, subject to section 8(2), intervenes, section 8(2) being an exception to section 9 itself and a revision in Fair Rent, in spite of prohibitions in section 9., may be ordered if the conditions enumerated in section 8(2) come to subsist. A Priori it follows that the law having postulated the conditions for seeking fixation of Fair Rent and a previous mutual arrangement spelling no preclusion, a demand of variation from one side even if it, upon acceptance, matures into a contract cannot allowed to block the way for determination of Fair Rent, the right under section 8 ibid., being absolute. There is no estoppel against law and law having mandated specific rights and a special procedure for I enforcement parties cannot even contract out of the same. Thus, even though the landlady, through notice, claimed a lower rate prior to seeking determination of Fair Rent such in itself would not bar her remedy for seeking fixation of Fair Rent though in determining due Fair Rent the Controller may not totally ignore the landlady's own earlier manifested inclinations and fashion the relief justly, taking all factors into consideration, the primary factors being deducible from sections 8 of the Ordinance itself.
' This throws up the merit of the controversy. The landlady in her application had specifically pleaded that rents of similar premises on the ground floor of the same building were Rs,1,000 per month whereas those in the vicinity ranged at Rs,1,200 per month. The tenant did not specifically deny these averments in his written statement though other defences some of which have figured in the contentions of Mr. Muhammad Sharif were urged. Such pleas, therefore, on pleadings can be taken to be admitted even if subject to the other defences. Accordingly, while in consonance with the postulates of c Article 1(2) of the Qanoon-e-Shahadat, 1984, it must be held that the rules of evidence, as occurring in the Qanoon, applied to proceedings before Controllers functioning under the Sindh Rented Premises. Ordinance, 1979, exercising as they do judicial or quasi-judicial powers or jurisdiction and primary evidence in the way of documents and not mere photostat copies should be produced in evidence before them, relevant photostat copies of documents exhibited before the Controller in this case loose significance. Even otherwise no objection was taken to the production of photostat copies at the time such were exhibited and objections of this character have to be taken at the earliest opportunity otherwise such are treated to be waived. The principle is based on good reason and considerable authority. Such timely objections, quite obviously, enable the party in default, on due notice, to produce primary evidence before it is too late. Mr. Muhammad Sharif for the tenant, in this state of law and evidence, endeavoured to point out that, at one stage, cross-examination of the landlady's witness was postponed for production of original documents and that occurred because objection to photostat copies was actually taken. While the cross-examination was, in fact, postponed there is nothing on record that any objection was taken to the admissibility of documents which were exhibited till then and, on resumption of cross- examination the landlady's witness, only produced some other documents and not the originals of those which already stood exhibited. Yet no objection was taken to the previously exhibited documents. Correspondingly, the tenant in his evidence also produced and got exhibited only photostat copies of documents, no one objecting. Accordingly such documentary evidence, at this stage, cannot be brushed aside merely because it was in the shape of photostat copies.
As to the remaining objection about the scribes and authors of the documents not being examined all that need be said is that such is one of the requirements of law but documents can be proved even otherwise than by production thereof through the authors or scribes. Qanun-e-Shahadat, 1984, is a comprehensive Code and contemplates numerous modus for the proof of documents whether or not the documents were proved as to source/contents I do not fell called upon to decide, reason being that the rents of the ground-floor premises at Rs,1,000 per month and other premises in the adjoining areas were virtually admitted on pleading between the parties.
' Next may be examined the various factors which have relevance on the language of section 8 of the Sindh Rented Premises Ordinance, 1979, for the determination of Fair Rent and see as to how such have actually reacted on the fixation of Fair Rent in the instant case at the level of the Controller. At the outset, it is to be stated that while section 8 postulates a number of considerations for the fixation of Fair Rent, it is not necessary that all such considerations should come into play at once or be simultaneously present in an individual case. It is not only possible but even visualised that only some of the elements of section 8 may apply in a given case and others may not be available at all. At the same time, it is also not unlikely that some of such factors may point in one direction and the other or others in quite another and even converse direction. In like manner, it is also not expected of the Controller to invoke a particular ground of fixation of Fair Rent in a disproportionate mariner. What has to ensure is that such factors in section 8 supra as be invocable are allowed due weightage cumulatively to arrive at a just and reasonable determination so that a fair dispensation is accorded to either of the adverse interests.
' Thus, reverting to the case in hand the virtually admitted position was that the rents on the ground-floor of the same building were Rs,1,000 per month and those in the vicinity were Rs,1,200 per month. Yet it is not established on record whether such were Pugri bearing premises and while the Controller has rejected the tenant's plea that he had paid a huge Pugri on the ground that the amount of Pugri was not specified the fact remains that the landlady's witness did not say that no Pugri was paid by the tenant. This was a consideration which clearly was pertinent in the context of the phraseology in section 8 (1) (a) enjoining relevance of "the rent of similar 'remises situated in similar circumstances". It is fact of our social fabric and, where relevant, may be involved that Pugree bearing premises fetch comparatively less rates of rent. Even so, when fixing Fair Rent the Controller would not be pinned down or bound by the quantum of rent of a similar Pugri bearing premises in the same or adjoining locality. Other factors, if available, have to weigh proportionately and cumulative effect of all that is relevant in the section has to be adequately assessed.
' Thus, and correspondingly, when the cost of construction and repair charges were claimed to have rocketed to the extent of ten-fold and the position substantially remained uncontroverted from the side of the tenant, such too is factor which must be allowed reckoning in terms of section 8(1) (b) of the Ordinance. On this score, it has been urged that the building being an old one and the landlady having carried out no repairs whatever section 8(1) (b) is not applicable. All that this provision stipulates is that "the rise in cost of construction and repair charges" is to be taken into consideration in fixing Fair Rent. Such rise, obviously, has reference to the last mutually agreed rent in juxtaposition with that which prevails at the time' the Controller is called upon to exercise his powers. It is in that context in-consequential whether the building is old or new and whether or not the landlord has carried out or proposes to carry out any repairs to the premises. The legislature, apparently, through this provision only takes note of the inflationary tendencies, if any, in the economy and endeavours to provide a fair deal to the landlord in any altered circumstances involving rising costs of construction and repair charges, construction being an industry and entitled like any other to succour and survival as such.
' Section 8(1) (c) involves assessm ent of Fair Rent taking into account "imposition of new taxes, if any, after the commencement of the tenancy". Such factor does not seem to subsist in this case except to a limited extent, taken not of above, and so far as that goes the objections from the side of the tenant has substance though agair it is the cumulative affect of all the ingredients in section 8(1) that has to be the pivotal consideration.
Coming to section 8(1) (d) supra, involving "the annual value of the premies, if any, on which property tax is levied", it is not levy of the property tax which is material here under this clause but the quantum of the annual values which has been allowed to have a bearing in fixation of Fair Rent.
Where the annual value applicable for levy of property tax is and has been below the prevailing rent in relation to a given premises such to has been accorded relevance and may have a negative, though like other factors never an exclusive, impact in determination of Fair Rent.
Correspondingly, if the annual value of the premises is revised subsequent to the emergence of a mutually agreed rate and, overtaking it prevails at the time when the Controller is called upon to exercise his jurisdiction such value as well is to be accorded due consideration.
' According due attention to all the foregoing circumstances, it is clear that rents in the adjoining locality were around Rs,1,000 per month to Rs,1,200 per month though it is not clear whether such pertained to Pugri bearing premises whereas the disputed premises, on preponderance of evidence, may be considered to have been Pugri bearing. Likewise, cost of repairs and construction did undeniably rise ten-fold. As regards imposition of new taxes and annual value of the premises there does not appear to have been, on evidence, any such substantial variation, though annual value for taxes seems to be substantially higher than prevailing rent. On the other hand, undeniably the landlady, just preceding the filing of the application, had claimed enhanced rent only at the rate of Rs,242 per month, but that factor may be whittled down, as said, on the ground that there is no estoppel against law. The fixation of Fair Rent at the level of Rs,800 per month may, on the whole, however, appear to be on the higher side.
' Now may be taken up the objection whether the landlady was bound to pray only for 10% per annum increase on the agreed rent by way of enhancement in terms of section 9(2) of the Ordinance and whether or not that factor has any bearing on this case. Mr. Muhammad Sharif has urged that section 9(2), reproduced above, is an independent provision and the legislature has categorically enjoined that in all cases the "increase" in rent shall not exceed 10% per annum on "existing rent" I must confess that there was a time when I myself laboured that the impression that section 9(2) was a comprehensive provision and constituted a rider on the powers of fixation under section 8 of the Ordinance. Misgiving arises because whereas section 9(1) ibid. Speaks of Fair Rent alone, section 9(2) which follows upon it, speaks of "existing rent" and is generally worded to include "any case", apparently covering every case, whether Fair Rent has or has not come to be fixed under section 8 of the Ordinance. Since then, however, have emerged Muhammad Jainil v.
Muhammad Rahim, 1987 CLC 176 and Ageela Khatoon v. Abu Bakar Khan, PLD 1987 Karachi 541, the first case decided by Saiduzzaman Siddiqui, J., (as he then was), being followed in the later judgment of Muhammad Mazhar Ali, J. These cases in essence lay down that section 9(2) of the Ordinance and the "increase" not exceeding ten per cent per annum occurring therein has nexus only with cases where Fair Rent has been fixed and that the conditions or postulates in the subsection have no general applicability. I respectfully, on re-appraisal, agree with the reasons and views recorded and expressed by the learned Judges. On my own I would, however, add that there are two very significant clauses in section 9(2) which, for added, reasons, make section 9(2) of the Ordinance a mere proviso and sub-servient to section 9(1) of the Ordinance. The reproduced provision of section 9(1) would show that law prohibits "further increase' once fair rent has been fixed, unless a period of three years has lapsed from the date of such fixation or commencement of the Ordinance whichever is later. Now, the significant words in section 9(2) are "increase" and "per annum". The word "increase" occurs in section 9(1) and embargo of three years' (annum) duration before seeking further increase is also a part of section 9(1). Thus, and even though the language leaves much to be desired, what the legislature intends in section 9 subsection (2) is that "in any case' in which Fair Rent has been fixed no "increase" thereupon would be allowable except after the expiry of the relevant period of three years and then too the "increase" would be limited to 10% per annum from the date of fixation of Fair Rent or the date of the Ordinance whichever be relevant and whichever be later. Thus, analysed the broader expression of "existing rent" employed in section 9(2) pales into in significance, the legislature apparently employing the phrase to cover the fixation of Fair .Rent under the previous Ordinance as well as the current one, the previous fixation obviously not being Fair Rent within the defined provision of sections 2(c) of the definition clause in the Sindh Rented Premises Ordinance, 1979, exclusively defining Fair Rent as meaning "the fair rent of any premises determined by the Controller under this Ordinance". For this reason the artifice of "existing rent" in preference to "Fair Rent" may have advisely been adopted in framing section 9(2) of the 1979 Ordinance. In the result, Fair Rent having once been fixed either under the present Ordinance or its pre-curser Ordinance, VI of 1959, powers for its revision are limited, not going beyond section (2) or where applicable, section 8(2) of the same statute which even overrides, if invocable, section 9 itself. Finding, therefore, is that no Fair Rent having been fixed as regards the premises in dispute the landlady is not restricted to claiming only 10% per annum increase.
' There is yet another and, may be, even more potent ground why subsection (2) of section 9 is to be read in conjunction with subsection (1) thereof and even treated as controlled by the latter.
Section 7 in the Ordinance , (reproduced above) would reveal that it is prohibited for a landlord to charge or receive rent at a rate "higher" than that mutually agreed upon by the parties and if Fair Rent has been fixed at a rate higher than that. It follows that in face of a mutually agreed rate another may be agreed upon but cannot be unilaterally increased by the landlord alone.
Alternatively, if Fair Rent has not been fixed the Controller may be approached for due determination and one that assessme nt has come into being any "increase can only be brooked within the four-corners of section 9 or section 8(2) and never otherwise.
' Concluding and giving due weightage to the fact that the premises may have been a Pugri bearing one, a factor gaining strength upon the landlady's claim of a modest revision through notice dated 25-2-1987, as well as all other relevant considerations, as expressly dilated upon above, it appears to me that a fixation @ Rs,600 per month would be nearer to logic and reason than Rs,800 determined by the Controller.
' Finally, the contention from the side of the landlady may be taken up which is to the effect that the fixation of Fair Rent by the Controller should have been effective from the month next following .Upon the making of her application for fixation and not that following upon actual fixation. Reliance has been placed by Mr. Nisarally on Ahmed Hussain v. Sherbanoo Alibhoy PLD 1962 Dacca 112, a decision of the erstwhile Dacca High Court but that case proceeds on a statute which expressly envisaged such an incident. There is nothing in section 8 supra. Laying down any limitation as to the date from which Fair Rent would become effective. A discretion is left in the hierarchy functioning under the Ordinance of 1979. The discretion is to be judicious. Such discretion, fixing effectiveness, at the level of the Controller, does not seem to have been unjustly exercised. It does not call for interference.
' Both these appeals stand disposed of accordingly with the order of the Controller modified only to the extent indicated.