ABDUL HAMID Versus ABDUL GHANI

By the impugned order, dated 29=3‑1989, the Rent Controller, deciding the rent application filed by the respondent/landlord for fixation of fair rent under section 8 of the Sindh Rented Premises Ordinance, 1979, fixed the fair rent of Rs.5()0 per month in respect of the shop located in the Main Bazar of Shah Faisal Colony No.1, Karachi, which has been on rent with the appellant/tenant since 1959 at the rate of Rs.40 per month, according to the landlord, but which was Rs.30 per month, according to the tenant and tenant's version was accepted in Rent Case No.393/71 filed under the old law, namely, West Pakistan Rent Restriction Ordinance, 1959 and decided on 18‑10‑1980. I have heard Mr. Hafiz Abdul Baqi, learned counsel for the appellant and Mr. Anwar Muhammad, learned counsel for the respondent.

Mr. Hafiz Abdul Baqi, learned counsel for the appellant, has taken me through the impugned order dated 29‑3‑1989 and it is apparent that fair rent has been fixed by the Rent Controller while deciding the rent application under section 8 of the Rent Ordinance, 1979 only on the basis of his finding regarding prevalent rent, in the locality, of similar shops. Learned counsel for the appellant has submitted that this was not warranted by law as section 8 refers to four factors required to be considered by the Controller while fixing fair rent under section 8 of the 1979 Ordinance. Section 8(1) of the Sindh Rented Premises Ordinance, 1979 reads as follows:‑

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."

3. 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 the 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 199() (Mst. Muneera Kaleemuddin and others v. 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 lave. 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 aforesaid 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.

5. As a result, this appeal is allowed and the impugned order, dated 29‑3‑1989, passed in Rent Case No.850/87, is set aside and the matter is remanded to the Rent Controller to decide the application afresh after taking into consideration all the four factors referred to in section 8(1) of the Sindh Rented Premises Ordinance, 1979. Both the parties are at liberty to lead further evidence before the Rent Controller either by recalling their witnesses and or examining more witnesses. As the matter is now periling for nearly five years, the Rent Controller is to dispose of this matter by 31‑7‑1992. A report about the disposal of the rent case within the time prescribed will be sent by the Rent Controller to the Registrar of this Court.

There will be no order as to costs.

H.B.T./A‑1212/K Appeal allowed,