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First Rent Appeal No. 217 of 1984, decided on 4th March, 1987.

‑‑‑ Ss. 8 & 21 (l)‑‑ Determination of fair rent, consideration for‑‑Rent Controller taking into consideration rent of premises situated in same building in which premises in question was situated and determined fair rent thereof‑‑ Determination of such fair rent was not unfair keeping in view similarity of accommodation and nature of two portions of same building‑ ‑Contention of tenant that Rent Controller could take into consideration only rent of similar premises situated in similar circumstances, in same area or adjoining locality, had excluded premises situated in same building in which premises in question was situated, held, was misconceived‑‑Such contention could not be accepted without violation to relevant provisions of law‑‑If any instance of similar premises situated in same building was present, same being best circumstance or factor should be given due consideration for fixing fair rent of premises in dispute in circumstances.

P L D 1971 Lah. 210 ref.

Sajjad E. Halai for Appellant.

S.S. Akbar for Respondent.

Date of hearing: 10th February, 1987.

This appeal at the instance of tenant has been brought against the order of the Senior Civil Judge First Class and Rent Controller, Karachi passed in Rent Case No. 6035/80 whereby he has fixed the fair rent of the premises on Plot No. 385/GRE, Garden East, Karachi, at Rs.900 per month.

2. The premises in question consisting of 5 bedrooms, 2 bath rooms, W.C. and kitchen, situated on the first floor on Plot No.385/2 Garden East, Karachi, was in possession of the opponent tenant since long before 1974, when the applicant purchased it for a consideration of Rs. 1, 75, 000/ ‑. Its monthly rent at the time of making the application under section 8 on 19‑2‑1984 was Rs.145/‑ inclusive of water charges. At the time of purchase of the property by the applicant, the opponent was paying rent of Rs. 100/ ‑ which was admittedly increased to Rs. 145/ ‑in October 1975. The applicant pleaded that rent of similar premises situated in the similar circumstances in the same locality or in adjoining areas was more than Rs.1,200 per month; that there has been as appreciable rise in the cost of construction repair and maintenance of the premises; that since the commencement of applicant's tenancy several new taxes had been imposed upon the building which justified the enhancement of rent and that the house was situated in a highly posh locality and had all the amenities and facilities like light, gas, water etc. She further averred that if the premises are let out to anyone else, it is likely to fetch monthly rent of at least Rs.1,500/‑ per month. It was further pleaded that a notice dated 16‑9‑1980 was served upon the opponent requiring him to pay rent at the rate of Rs.1,200/‑ per month but he refused to do so. The applicant, therefore, filed an application under section 8 of the Sind Rented Premises Ordinance, 1979 praying that the fair rent of the premises may be fixed at Rs.1,200/‑ per month.

3. The opponent filed written statement opposing the application. According to him the rent of the said premises as charged by the applicant was quite fair. He denied that the premises in question were situated in posh locality and that all necessary amenities were provided therein. He averred that even a meagre supply of water was not arranged through municipal mains and hence the opponent alongwith another tenant Basarai ensured the water supply to their tenants by boring a tube‑well and installing a motor for pumping the water at huge cost.

4. The original applicant, Noor Jehan Malik, died during the pendency of the application and her legal representative Hasan Malik, was brought on record. The applicant filed his own affidavit in evidence, whereas the opponent filed his own affidavit‑in‑evidence as well as an affidavit of one Haji Mohammad Ismal Badshah, an Advocate residing at 120, GRE, Karachi.

5. The applicant deposed that a portion of the building in question consisting of two beds, kitchen, drawing and dining room had been let out to one Abdur Rehman s/o late Ataur Rehman at Rs.1,500/ per month, w.e.f. 1‑4‑1981 vide agreement of Lease, Ex.1/1. He further averred that an annexe situated in the building consisting of two beds, one Hall and kitchen had been let out to one Mr. N.A. Kazi w.e.f. 1‑8‑1975, who was paying him the rent of Rs.700/‑ per month. Another portion of the building was said to have been let out to one Miss Isabel Lobo at a monthly rent of Rs.900/‑.

In cross‑examination it was admitted by the applicant that the building was constructed prior to the inception of Pakistan; that there were 5 tenants in the building paying total rent of Rs.3,400/‑. He admitted that it was correct to say that in the vicinity of the disputed building there are new buildings. He also admitted that the opponent had made his own arrangement of fetching the water.

6. The opponent in his affidavit supported the averments made in the written statement. In cross‑examination he admitted that the premises had all amenities. He also admitted that it was true to say that the rent in the area had been enhanced upto ten times. He admitted that Mr. Amanur Rehman was tenant on ground floor. He stated that he did not know how much rent was paid by him or the amount of rent being paid by other tenants of the building including 'Basarail.

7. D.W. Haji Mohammad Ismail Badshah deposed that he was previously residing in the disputed building whereas Mr. Mansoor Basarai was tenant of bungalow No. 120/GRE, on a monthly rent of Rs.96/‑ only. According to him, the rent of Rs. 145/‑ paid by the opponent was quite fair and reasonable in view of the nature of accommodation and locality.

8. The learned Rent Controller relying upon the above oral and documentary evidence led before him, as already stated, fixed the fair rent of the disputed premises in occupation of the opponent at Rs.900/‑. Hence this appeal.

9. The learned counsel for the appellant has assailed the fixation of fair rent as aforesaid mainly on the grounds that the learned Rent Controller erred in law in failing to consider that the case of the respondent for increase in Rent was not covered by any of the grounds listed in section 8 of the Ordinance except ground NO‑1 which alone provides the guideline for fixation of rent; that the Rent Controller has erred in law in basing his order on the general rise in cost of living which does not in law constitute a factor for fixing the fair rent; that the Controller further erred in giving to the respondent benefit of rise in the cost of construction although admittedly the building is an old one; and lastly, that the whole order of the Rent Controller is based on misreading of evidence and omission to consider and give full effect to the evidence of the appellant and his witnesses. According to the learned counsel the increase in rent was even otherwise exorbitantly high in view of the fact that the respondent had even failed to ensure supply of water to the building.

10. The learned counsel for the respondent, on the other hand, supported the impugned order by contending that the Rent Controller has in fact fixed the rent on lower side inasmuch as, as per rent deed, Ex.1/1, the respondent had proved that a tenement of only two rooms could fetch the rent of Rs.1,500/‑ per month. He urged that the respondent had discharged his onus for fixation of fair rent and that the Rent Controller has thus not committed any error in enhancing the rent from Rs.145/‑ to Rs.500/‑ per month. In his submission, the Rent Controller has given due consideration to the location of the disputed premises and also to the fact that the rent is progressively increasing in Karachi. He further urged that while determining the fair rent the Rent Controller may take into consideration factors other than those mentioned in sub‑section 8 (1) of the Sind Rented Premises Ordinance, 1979, He sought to support his last mentioned contention by an authority of Lahore High Court reported in P L D 1971 Lahore 210.

11. After giving due consideration to the submissions made by the parties' representatives before me and upon perusal of the evidence led by the parties in support of their respective case, I am convinced that the appellant does not seem to have any case on merits. The contention of the learned counsel for the respondent to the effect that the Rent Controller could not determine the rent on the basis of the rent agreement dated 22nd March, 1981 for the reason that it was not pertaining to the premises similar to the premises in occupation of the appellant is wholly misconceived inasmuch as the premises involved in the said agreement are situated in the disputed building and clearly mention the accommodation of that house. The submission of the learned counsel to the effect that clause (a) of sub‑section (1) of section 8 lays down that the Rent Controller can take into consideration only the rent of similar premises situated in similar circumstances, in the same area or adjoining locality exclude the premises situated in the same building in which the premises in question is situated, has no merit.

12. The contention of the learned counsel for the appellant cannot be accepted without doing violence to the relevant provisions of law. How could the building in which the other premises were situated be not taken to be situated in the same locality. In my opinion, if any instance of similar premises situated in the same building is present, as it is available in the instance case, it is the best circumstance or factor which may be given due consideration for fixing the fair rent of the disputed premises. I think, the proof of the nature led in the instant case is of much evidentiary value than that of some other premises situated in the same area or adjoining locality inasmuch as it is difficult to find the two premises, the one in respect of which the fair rent is sought to be determined and the one which is taken to be of similar nature which could be in all respect similar. However, in that case it remains only a guiding factor. In the instant case, the building whether new or old is the same in which the disputed premises are situated. The learned Rent Controller has thus acted fairly well in fixing the fair rent at Rs.900/‑ per month by keeping in view of the provisions of clause (a) to sub‑section (1) of section 8 of the Ordinance. In so doing, he has, I think, given due consideration to the non ‑availability of water supply as well.

13. For the foregoing reasons, I would maintain the impugned order and dismiss the appeal with no order as to costs.

H..B.T./A‑58/K Appeal dismissed.

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