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Civil Revision No. 283 of 1962, decided on 10th December 1962
Prior determination of fair rent essential pre‑requisite for application under S. 5‑Order allowing increase of rent for renovation without fixing fair rent ‑ Illegal and without jurisdiction.
‑Order of Rent Controller alleged to be illegal and without jurisdiction ‑ Civil Court competent to consider propriety of order and declare same to be illegal.
Rahmatullah v. Maqbool Alam P L D 1949 Sind 22 ; Mst. Waheedan v. Muhammad Yousuf Khan P L D 1960 Kar. 333 and M. M. Ispahani Ltd. v. Muhammad Sultan P L D 1961 S C 76 ref.
-- Renovating and improving building‑Not same as constructing new building.
Haji Abdullah v. Dr. S. M. Sattar P L D 1959 Kar. 330 ref.
--(a) Words "or for any other reason"‑Ejusdem generis with reasons stated earlier‑Expression does not give licence to Rent Controller to override legal impediment imposed by provisions of Act.
50 B L J 115 ; Bisheshwar Pratap Sahi v. Parath Nath A I R 1934 P C 213 and Bashir Ahmad v. Sikandar Bakht P L D 1961 Lah. 515 ref.
Maxwell: "Interpretation of Statutes" 10th Ed., pp. 338 to 343 ; Crawford: "Statutory Construction" 1940 Ed., p. 326 and Craies
Statute Law, 5th Ed., pp. 82 & 170 ref.
M. Y. Nizami for Applicants.
Hafiz Sultan and Iqbal Kazi for Respondent.
Dates of hearing : 19th, 21st, 22nd and 26th November 1962.
This revision application has been filed against the order of the then Additional District Judge, Karachi (Mr. Abdul Kadir Kazi), dated 21‑3‑1961 and it raises, in essence, two points of law for determination, namely:‑(i) whether the order of the Rent Controller, Karachi in this matter dated 11‑3‑1957 is a legal order; and, (ii) if not, whether it can be interfered with by a Civil Court.
2. The facts, so far as they axe material for the purpose of deciding these two law points may briefly be stated as under :‑
3. The present respondent Seth Byramji D. Mama is the owner of a building bearing No. R. B. 1019 known as Mama Building situated on Ramchandra Temple Road, Karachi. The applicants are tenants of this building and have been in continuous occupation thereof for a large number of years. On 17‑8‑1953 the opponent/landlord applied under section 4 of the Karachi Rent Restriction Act (VIII of 1953) to the Rent Controller, Karachi for fixing the fair rent of the tenements in the occupation of the present applicants claiming the statutory increase of 25 per cent. allowed under this Act of 1953. On 30‑11‑1955 the landlord submitted a second application to the Rent Controller Karachi in the same proceedings stating that he had spent a sum of Rs. 18,000 in renovating this building and that the statutory increase of 7 per cent. on renovation may be allowed to him. On 20‑10‑1956 the opponent/landlord submitted a third application to the Rent Controller, Karachi pointing out that the total amount spent by him on renovating this building was Rs. 29,024‑14‑0 and that the increase of 7 per cent. for improve ments may be allowed to him on this total figure of Rs. 29,024‑14‑0. The learned Rent Controller by his order dated 11‑3‑1957 disposed of these three applications holding that the application under section 4 was time‑barred having been made more than four months after the promulgation of the 1953 Act. He, therefore, dismissed this application. The Rent Controller, however, held that the application under section 5 for an increase in the monthly rent of 7 per cent on the total amount spent on renovation is maintainable and he allowed an increase of 7 per cent. on Rs. 26,600 working out to a monthly increase in the rental of the entire building of Rs. 166‑4‑0 which was equally divided amongst the eleven tenants. Two revision applications against this order of the Rent Controller were filed in the Court of the Chief Judge, Small Causes Court Karachi one by the applicants/tenants and the other by the opponent/landlord. The Chief Judge, Small Causes Court Karachi by his order dated 31‑3‑1958 rejected both these revision applications. A review application was presented to the same Judge on 12‑4‑1958 by the present applicants which was also rejected by him on 22‑8‑1958.
4. On 29‑9‑1958 the present applicants and one Haider Mehdi, who later withdrew, filed Civil Suit No. 1459 of 1958 in the Court of the First Class Sub‑Judge, Karachi, for a declaration that the order passed by the Rent Controller, Karachi, dated 11‑3‑1957 and confirmed by the order of the Chief Judge, Small Causes Court Karachi dated 31‑3‑1958 was null and void, without jurisdiction and ultra vires the Karachi Rent Restriction Act. This suit was heard by Sardar Allah Nawaz Khan Esq., 1st Sub- Judge First Class, Karachi who in a very long and elaborate judg ment dated 8‑9‑1959 decreed this suit in favour of the applicants/ tenants. The respondent/landlord Seth Byramji D. Mama then preferred an appeal against this decree and judgment in the Court of the District Judge, Karachi, and the Additional District Judge, Karachi, (Mr. Abdul Kadir I. Kazi) by his judgment dated 21‑3‑1961 allowed the appeal and reversed the judgment of the learned Sub‑Judge. It is as against this order of the Additional District Judge, Karachi, that the applicants have filed this revision in this High Court.
5. The first point of law urged by Mr. M. Y. Nizami appearing on behalf of the applicants is that the order of the Rent Controller Karachi dated 11‑3‑1957 allowing an increase in the monthly rent of 7 per cent. on the total sum spent on renovating the building is without jurisdiction. It is argued that this order has been made by the Rent Controller on the opponent/landlord's application to him under section 5 of the Karachi Rent Restriction Act of 1953 but that an indispensable pre‑requisite to the application of this section is a prior determination of the fair rent of the premises concerned in accordance with the provisions of this Act. Mr. Nizami pointed out that this essential pre‑requisite has not been complied with in this case and that neither the application of the opponent/landlord under section 4 of this Act dated 7‑8‑1953 nor the application of the tenant of Flat No. 6 Mr. Haider Mehdi Jafri could be considered as previous applications for determining the fair rent in accordance with the provisions of this Act as contemplated by the language of section 5(1) of this Act. It is necessary to examine very closely this argument of the learned Advocate appearing on behalf of the applicants.
6. Now section 5(1) of the Karachi Rent Restriction Act of 1953 is in these words :‑
"If at any time after the fair rent of any premises has been determined in accordance with the provisions of this Act it appears to the Controller that subsequent to such determination some addition, improvement or alteration, not included in necessary repairs or repairs usually made to premises in the locality, has been made to the premises at the landlord's expense the Controller may, after making such enquiry as he thinks fit, re‑determine the fair rent of the premises."
The head‑note to this section is
"Re‑determination of fair rent when improvements made."
This very head note clearly 'indicates that the fair rent of an premises must previously have been determined under this Ac before section 5(1) can come into operation and before there ca be any re‑determination of the fair rent of the premises concerned on the grounds of improvements and renovation made therein. A close study of the facts of this case reveals that in the first place on 17‑8‑53 the opponent/landlord had submitted an application under section 4 of this Act being Application No. 2561 of 1953 for fixing the fair rent of the tenements in the possession of the present appli cants. But this application of the opponent/landlord was rejected by the Rent Controller as being time‑barred having been filed more than four months after the date on which this Act came into force. This application under section 4, then, having been dismissed as time‑barred, it cannot be said that the fair rent of these premises was determined as a result of this application. Nor can the application for fixation of fair rent made by Mr. Haider Mehdi Jafri the occupant of Flat No. 6 in this building in the year 1952 be considered as a previous application for determination of fair rent within the meaning of section 5(l) for the twofold reason that Haider Mehdi Jafri is not one of the present applicants and his Flat No. 6 is not one of the tenements involved in the present application. I observe from the judgments of the two Courts below that much emphasis has been laid by the learned Advocate appearing on behalf of the respondent/landlord upon this application for fixation of fair rent made by Haider Mehdi Jafri the occupant of Flat No. 6 of this building in the year 1952 and specially upon the language used by the then Rent Controller, Karachi, in his order on this application dated 8th July 1952. Lengthy arguments on this point have also been addressed to me by Mr. Hafiz Sultan Ahmad appearing on behalf of the respondent/landlord and it is necessary in this judgment for me to review and consider these able arguments.
7. It was first argued before me by Mr. Hafiz Sultan Ahmad that the Rent Controller, Karachi, when deciding the application of Haider Mehdi Jafri has in his order of 8‑7‑1952 Exh. D. 9 determined the fair rent of the whole building which he is empowered to do under section 4 (b) of the Act. Mr. Hafiz pointed out that his client had filed before the then Rent Controller the municipal assessment for the year 1941‑42 in respect of the whole building and not only in respect of Flat No. 6. His client had also filed a statement tenement wise showing the rent realised from each tenement in this building. On these bases it is argued by Mr. Hafiz that in Exh. D. 9 the Rent Controller, Karachi, has determined the fair rent of the entire building and not only of Flat No. 6 of Haider Mehdi Jafri. I observe that this same argument was urged by the same Advocate with equal favour before the learned Sub‑Judge who held thereon as
"I have read the entire order Exh. D. 9 and I fail to see therein the plea made by the Advocate. The Controller did not determine the fair rent of the premises of the other tenements individually, nor the other tenants were present, nor they were parties to that matter, and therefore, they could not be deemed to be bound by it."
I find myself in entire agreement with this finding of the learned trial Court. It is perfectly plain to me that in Exh. D. 9 the Rent Controller has in the operative part of that order fixed the fair rent of Flat No. 6 only and that whatever remarks may have been made by the Rent Controller generally in the previous paragraphs of this order are obiter dicta and can have no application and could never have been meant to apply to the building as a whole.
8. With regard to the argument of Mr. Nizami that Haider Mehdi Jafri is not one of the present applicants in this revision petition and I may remark in passing that I was intrigued to observe that he was one of the plaintiffs in the original suit but later withdrew therefrom‑it has been contended by Mr. Hafiz Sultan Ahmad that fixation of fair rent is in respect of premises and not in respect of persons. But this point according to me is axiomatic and, therefore, it is wholly unnecessary for me to refer to the wealth of case‑law placed before me by the learned Advocate on this point. Besides the language of section 7 of the Karachi Rent Restriction Act of 1953 also shows that fair rent is fixed in respect of premises and not of persons. Accepting this argument I find that the application of Haider Mehdi Jafri relates only to Flat No. 6 and that this tenement is not one of the tenements involved in the present revision application. Therefore, the fixing of the fair rent in 1952 in respect of tenement No. 6 of this building cannot be of any avail to the landlord in respect of the tenements occupied by the present applicants because Flat No. 6 is not one of these tenements. I am, therefore, constrained to hold that the order of the Rent Controller dated 11‑3‑1957 allowing the permitted increase of 71 per cent. upon the total sum spent on renovation of the building in respect of the tenements of the present applicants is an order without jurisdiction and illegal because the essential pre‑requisite as mentioned in section 5(1) has not been complied with.
9. The second main argument urged before me by the learned Advocate appearing on behalf of the applicants is that this order of the Rent Controller of 11‑3‑1957 being illegal and without jurisdiction a Civil Court is authorised to interfere in order to correct this illegality. In the case of Rahmatullah v. Maqbool Alam (P L D 1949 Sind 22), it was held that where it was alleged by the plaintiff that the order of the Rent Controller allotting a portion of premises occupied by the plaintiff to the defendant was ultra vires, without jurisdiction and illegal, the Civil Court was authorised to entertain a suit on behalf of the plaintiff to that effect. Vellani, J. in his judgment stated as under : ‑
"For the purposes of this application, I take the view that the plaintiff has produced enough material to establish at least prima facie that the Controller omitted to form and was not of the prescribed opinion before he made the allotments dated 14th February 1949 and 13th April 1949. It cannot be my purpose at this stage to decide the whole suit in which substantially the same questions together with others will arise for final decision ; and I am therefore content to say that upon the state of the matter as it has arisen at the hearing of the application for a temporary injunction, the plaintiff has sufficiently discharged the burden upon him to make out a prima facie case of illegality."
Again in the case of Mst. Waheedan v. Muhammad Yousuf Khan (P L D 1960 Kar. 333), it was held by justice Waheeduddin Ahmed, J.
"Where the Rent Controller or the Chief Judge, Small Causes Court as the Revisional Authority have gone out of their way and assumed jurisdiction in matters which do not fall within its purview, the Civil Court has ample jurisdiction to consider their propriety and declare them illegal."
In the case of M. M. Ispahani Ltd: v. Muhammad Sultan (P L D 1961 S C 76), their Lordships have also indicated that if a Tribunal was not acting within the scope of its authority such action would be without jurisdiction and therefore challengeable in a Court of law. In view of this position of the case‑law on this point I agree with the contention of the learned Advocate appearing on behalf of the applicants that the Civil Court has jurisdiction to interfere with this illegal order of the Rent Controller and to set it aside.
10. Mr. Hafiz Sultan Ahmad vehemently argued that his client the landlord having spent the large sum of Rs. 30,000 on renovating the building, the principles of natural justice require that he must get an adequate return for his money and that the Karachi Rent Restriction Act, 1953, must contain some provision whereby his client is entitled to claim enhanced rent in view of the renovations made by him in his building. With this idea firmly lodged at the back of his mind, the learned Advocate first contended that the two applications submitted to the Rent Controller by his client on 30‑11‑1955 and again on 20‑10‑1956 should be treated as applications under section 4(a) and not under section 5.
Mr. Hafiz contended that the proviso to this section does not stand in the way of his client because the building having been completely renewed and renovated it must be taken to be a new and a different building and in this view the above two applications of his client to the Rent Controller were made within the period of four months from the date of renovation. He referred in this connection to the case of Haji Abdullah v. Dr. S. M. Sattar (P L D 1959 Kar. 330), wherein it was held that‑
"the scheme of the Act is that the fair rent of the premises should be determined by the Rent Controller."
11. I must state at once that I am not impressed by this argument of Mr. Hafiz. In the first instance it seems to me that if his client had intended his two applications to the Rent Controller of 30‑11‑1955 and 20‑10‑1956 to be under section 4 of this Act and not under section 5, then there was no point in his submitting to the same Controller his earlier application of 17‑8‑1953 which admittedly was under section 4 of the Act. Secondly, I cannot agree with Mr. Hafiz that renovating and improving a building is the same as constructing a new building.1 The applicants have been in occupation of this building for a number of years and their occupation therefore cannot be said to commence afresh from the date of the completion of renovation of the building. Besides, it would be a moot point to determine the precise date on which it can be said with certainty that the renovations have been completed and a new building has as it were, taken the place of the old building: I have noticed that Mr. Hafiz advanced this same argument before the learned Sub- Judge who disposed of it in these words
"The novelty of this argument and the position taken by the learned Advocate must be praised : but except novelty and genuity it has no substance in it. The occupation of the tenants before the premises had undergone a change in shape by renovation was with the tenants, and at no time before or after the renovation of the premises they left it or re‑occupied it and, therefore, the question of new occupation for renovation as raised in the argument of the learned Advocate would not arise at all."
12. Finally Mr. Hafiz argued that if his client could not obtain the desired relief of enhanced rent under section 4 then, certainly, he could claim this relief under section 12 (a) of this Act. In order to appreciate and adequately deal with this argu ment it is necessary to set out here section 12 (a) :
"In any of the following cases, the Controller may fix the fair rent at such amount as, having regard to the provisions of this Act and the circumstances of the case, he deems just
(a) Where, by reason of any premises having been let at one time as a whole and at another time in parts or where a tenant has sublet or sublets a part of any premises let to him, or for any other reason, any difficulty arises in giving effect to this Act."
Mr. Hafiz has led stress upon the words "or for any other reason" appearing in sub section (a) and he has argued that inasmuch as on account of the peculiar language of section 5(1) difficulty arises in giving effect to this Act, the Rent Controller under the provi sions of this general section 12(a) is empowered to fix the fair rent of this building. Mr. Hafiz compared this section 12(a) to section 151 of the Code of Civil Procedure and said that it is a general section under which his client's case could fall because of the difficulty that has arisen in giving effect to the provisions of this Act.
13. Again, I am constrained to say‑and I do so with genuine regret‑that I am not able to accept this argument of Mr. Hafiz, If this argument were to prevail then any time‑barred application for fixation of fair rent under section 4, no matter however late it may be, will have to be accepted despite the bar of limitation contained in the proviso to section 4. In like manner, any application for re‑determination of the fair rent after improvements made would necessarily have to be accepted under section 5 even though not preceded by an earlier application for fixation of fair rent under this Act. Thus, instances can be multiplied showing how, if the argument of Mr. Hafiz were to prevail, the legal impediments imposed in the earlier sections of this Act could be easily surmounted by the specious plea that they create difficulties in giving effect to this Act.
14. There is also a further objection to this argument of Mr. Hafiz and that is that the words "or for any other reason" appearing in section 12 (a) cannot mean any reason at all E occurring to human ingenuity but must necessarily mean a reason ejusdem generis or analogous to the preceding words or phrases. Mr. Nizami placed before me the Bombay Rent Ac 1947 and invited my attention to section 11 (1)(c) which is in the same terms as section 12(a) of our Act. He cited 50 Bombay Law Journal 115 which is the same as A I R 1948 Bom. 306 where a Bench of the Bombay High Court in the case of Rustomji Pestonji v. Sorabji Dadabhoy held that the words "for any other reason any difficulty arises in giving effect to this part" must neces sarily be construed ejusdem generis with the words preceding Mr. Nizami also invited my attention to Order XLVII, rule 1 (c) which before the amendment of 1962 contained the words: "or for any other sufficient reason". In the case of Bisheshwar Pratap Sahi v. Parath Nath (AIR 1934 P C 213), the Privy Council interpreted these words as meaning "a reason sufficient on grounds at least analogous to those specified immediately previously". My attention was also invited to Maxwell on Interpretation of Statutes, Tenth Edition, pages 338 to 343, to Crawford on Statutory Construction, 1940 Edition, page 326 and to Craies on Statute Law, 5th Edition, pages 82 and 170. Mr. Hafiz in reply quoted the case of Bashir Ahmad v. Sikandar Bakht (P L D 1961 Lah. 515), where it was remarked by a Full Bench of this High Court
"The modern tendency of the Law is to attenuate the application of the rule of ejusdem generis. Before the principle could be invoked, there must be a distinct genus or category."
This ruling went on to say that where this is lacking, the rule cannot apply, and if the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. I have referred to the authorities cited before me on the ejusdem generis theory ; but for the purpose of disposing of this matter I think it is quite unnecessary to enter upon a discussion as to the precise meaning of these words "for any other reason". I am perfectly satisfied in my own mind that these words appearing in section 12 (a) of the Karachi Rent, Restriction Act of 1953 cannot give a licence to the Rent, Controller to override the legal impediments imposed by sections 4 and 5 of the Act in determining fair rent and that therefore this final argument of Mr. Hafiz must be rejected.
15. In the result, therefore, this revision application is allowed with costs and the order of the Additional District Judge, Karachi dated 21‑3‑1961 set aside.
K.B. A.
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