Rent Process |Process of determining the rent of shops
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| RentProcess of determining the rent of shops |
کیس کی کہانی درج ذیل ہے:
1. تناظر: مالک مکان نے اپنے عمارت (دکانوں) کے کرایہ داروں کے خلاف "سندھ کرایہ دار آرڈیننس 1979" کے تحت دکانوں کے منصفانہ کرایہ کے تعین کے لیے درخواست دائر کی۔
2. کرایہ کا تعین: پہلے دکانوں کا کرایہ طے نہیں تھا، مگر بعد میں عدالت نے یہ فیصلہ کیا کہ کرایہ 9 روپے فی مربع فٹ ماہانہ ہوگا۔
3. اپیل اور فیصلہ: کرایہ داروں نے اس فیصلے کے خلاف اپیل دائر کی، جس میں ان کا کہنا تھا کہ فیصلے میں شواہد کی درست تشریح نہیں کی گئی اور کرایہ بڑھانے کی درخواست غیر منصفانہ ہے۔
4. عدالت کا فیصلہ: عدالت نے کرایہ داروں کی اپیل کو مسترد کر دیا اور مالک مکان کے حق میں فیصلہ برقرار رکھا، یہ کہتے ہوئے کہ کرایہ بڑھانے کے عمل میں تمام قانونی عوامل کو مدنظر رکھا گیا ہے۔
خلاصہ: مالک مکان نے دکانوں کے کرایہ میں اضافے کی درخواست کی، عدالت نے 9 روپے فی مربع فٹ ماہانہ کرایہ طے کیا اور کرایہ داروں کی اپیل مسترد کر دی۔
یہ ایک عدالتی فیصلے کا مکمل متن ہے جو سندھ ہائی کورٹ کے ایک فیصلے کے خلاف اپیل پر مبنی ہے۔ اس کیس میں کرائے کے معاملات پر تنازعہ تھا جہاں مالک مکان نے "عابد چیمبر" کی جائیداد پر کرایہ داروں سے "منصفانہ کرایہ" کے تعین کے لیے کیس دائر کیا تھا۔
فیصلے کے اہم نکات یہ ہیں:
1. حقائق: مالک مکان نے "سندھ کرایہ دار آرڈیننس 1979" کے تحت کرایہ کا تعین کرنے کے لیے درخواست دائر کی تھی، اور کرائے کی مقرر کردہ رقم 9 روپے فی مربع فٹ ماہانہ طے کی گئی تھی۔ کرایہ داروں نے اس فیصلے کے خلاف اپیل دائر کی تھی۔
2. عدالت کے فیصلے: عدالت نے کرایہ داروں کے دلائل کو ناکافی سمجھتے ہوئے ان کی اپیل مسترد کر دی، اور ہائی کورٹ اور نچلی عدالتوں کے فیصلوں کو برقرار رکھا۔
3. قانونی اصول: عدالت نے وضاحت کی کہ "منصفانہ کرایہ" کے تعین کے لیے مختلف عوامل کو مدنظر رکھا جاتا ہے جیسے کہ علاقے میں دوسرے کرایہ داروں کا کرایہ، عمارت کے مرمتی اخراجات، اور نئے ٹیکسز کی عائدگی۔
4. نتیجہ: سپریم کورٹ نے اپیل مسترد کرتے ہوئے کرایہ داروں کو مشورہ دیا کہ وہ مالک مکان سے معاملہ طے کرنے کی کوشش کریں۔
یہ فیصلہ اس بات کی وضاحت کرتا ہے کہ کرایہ کے تعین کے لیے قانونی طریقہ کار کیا ہوتا ہے اور کرایہ داروں اور مالک مکان کے حقوق اور فرائض کس طرح متعین کیے جاتے ہیں۔
CPs 563-K/24 etc
2
M/s Muhammad H.A. Rehman
M/s Abdul Waheed
M/s M.A. Hanfi Brothers
M/s Sultan Enterprises
M/s Manzoor Co
M/s SW & Sons
M/s Tangera Brothers
M/s Consolidated Trading Corporation
Moazzam Ali Khan
M/s Khurram Corporation
(CP 588-K/24)
(CP 589-K/24)
(CP 590-K/24)
(CP 591-K/24)
(CP 592-K/24)
(CP 593-K/24)
(CP 594-K/24)
(CP 595-K/24)
(CP 612-K/24)
(CP 613-K/24)
……Petitioners
Versus
Sheikh Abid & Co. Pvt. Ltd. and others
…Respondents
For the Petitioner:
Mrs. Abida Parveen Channar, AOR
(in all cases)
Mr. Saeed-uz-Zaman, AHC
(in CPLA 563-K/24 with Court’s
permission)
For the Respondents:
N.R.
Date of Hearing:
19.07.2024
Muhammad Ali Mazhar, J. The aforesaid civil petitions for leave to
appeal are directed against the judgment dated 03.04.2024, rendered
by the High Court of Sindh, Karachi, in CPs No.S-490, S-488, S-491,
S-492, S-497, S-498, S-501, S-502, S-509, S-510, S-512, S-514, S-
518, S-520, S-521, S-524, S-525, S-526, S-530, S-532, S-538, S-544,
S-545, S-551, S-552, S-554, S-555, S-556, S-557, S-558, S-550, S-
560, S-562, S-522 and S-549/2010, whereby the constitution
petitions were dismissed and the order passed by the Rent Controller
for fixation of the fair rent and the judgment passed by the Appellate
Court in the First Rent Appeals were affirmed.
CPs 563-K/24 etc
3
2. Mr. Saeed-uz-Zaman, Advocate High Court, has filed CMA
No.669-K/2024 in the CPLA No.563-K/2024 for permission to
represent the petitioner. On the basis of grounds raised in the
aforesaid Civil Miscellaneous Application, it is allowed and we
permitted the learned counsel to argue the case.
3. The brief facts of the case are that the respondent No. 1, being
owner of the building (Abid Chamber) constructed on Plot No.6/9,
Sharah-e-Liaquat, New Challi, Karachi, had filed individual rent cases
against the petitioners for fixation of fair rent by the Rent Controller
under Section 8 of the Sindh Rented Premises Ordinance, 1979
(“Ordinance”). In the first round, the Rent Applications were decided
by the Rent Controller ex-parte but on filing First Rent Appeals by the
petitioners, the ex-parte orders were set aside and the petitioners were
allowed to file their written statement in the rent cases within one
month. After recording evidence and hearing the arguments of the
parties, the learned Rent Controller fixed the fair rent of the rented
premises at the rate of Rs. 09/- per sq. foot per month from the date of
presentation of the application. Being aggrieved, the petitioners filed
First Rent Appeals but after hearing, the Appellate Court dismissed all
the appeals. Being aggrieved against the concurrent findings recorded
by the Rent Controller and the appellate Court, the petitioners filed the
aforesaid Constitution Petitions but the Sindh High Court by means of
impugned consolidated judgment dismissed all the petitions.
4. The learned AOR appearing for the petitioners and the learned
advocate appearing on special permission argued that the order of the
learned Rent Controller is based on misreading of evidence which
failed to advert to the requirements of fixing fair rent under Section 8
of the Ordinance. It was further averred that the landlord failed to
produce any witnesses to prove the prevailing rent in the same locality
with comparable rented premises. It was further contended that the
Rent Controller failed to discuss the facilities available in other
buildings as compared to the tenement in issue including the
inadequate amenities in the rented premises. It was further avowed
that the rented premises were obtained on the basis of lump sum rent
but the landlord filed the application for fixation of rent on the basis of
square foot, which was against the terms and conditions of tenancy. It
was further argued that the landlord demanded the exorbitant rate of
CPs 563-K/24 etc
4
rent without any lawful justification which aspect was also ignored by
the lower fora.
5. Heard the arguments. The order of the Rent Controller depicts that
the evidence was adduced by the authorized representative of the
landlord to satisfactorily prove the increase in taxes, water charges,
cost of construction, repair charges and rate of rent in the same
building and locality, but the evidence of such authorized person was
not shattered during the cross-examination by the tenants. On the
contrary, the tenants in the cross-examination admitted that since
July 1997, they are paying the same rate of rent. It was further
admitted by them that no receipt or documents were available to show
the payment of the pugri (goodwill) amount. They also admitted that
since July 1997 the rate of rent has not been enhanced with the
further admission that taxes have been enhanced with the passage of
time. After recording the evidence and arguments of the parties, the
learned Rent Controller, keeping in mind the criteria provided under
Section 8 of the Ordinance for fixation of fair rent, rightly fixed the fair
rent of the demised premises at Rs. 9/- per square foot per month
payable from the date of application instituted for fixation of fair rent.
It also reflects from the record that the landlord claimed to have borne
heavy expenditure for the renovation of building including sanitary
work, making two lifts serviceable, and revamping the electricity wiring
but such assertions could not be refuted by the tenants in the
evidence. The learned Appellate Court in the First Rent Appeals also
appreciated the entire evidence led by the parties to get the drift of
whether the claim of fair rent was justifiable or not vis-à-vis the
application filed for the fixation of fair rent and the order of the learned
Rent Controller with the line of reasoning. The landlord’s authorized
witness, in the affidavit of evidence, jotted down all necessary details
including the details of the other tenants in the same building, who
have already increased the rent after considering the relevant factors
that justified the enhancement of rent including the development work
carried out by the landlord. The said representative also deposed that
the taxes and repair charges have been increased tremendously. The
proceedings of the lower fora also expound that in many cases, the
petitioners/tenants, after filing of the written statements, disappeared
from the scene, and in some rent cases failed to lead the evidence and
CPs 563-K/24 etc
5
even
did not
conduct
cross-examination
of
the landlord’s
representative/witness or even in their turn could not lead any
evidence that would inspire confidence or was sufficient to rebut the
claim of the landlord. Hence, for all practical purposes, the testimony
of the landlord’s representative remained unshaken and unrebutted;
hence, it was rightly cogitated by the learned Rent Controller as
convincing and trustworthy beyond question. The impugned judgment
of the learned High Court in paragraph 13 reflects that at an earlier
time, the same landlord filed rent cases against some other tenants of
the ground floor of the same building and fair rent was fixed to Rs.9/-
per square foot, which order was not only affirmed by the learned High
Court but was also maintained by this Court and even the Review
Petitions were also dismissed.
6. In fact, the objectivity of promulgating the Ordinance was to make
effective provisions for regulating the relations between landlords and
tenants and protect their interests in respect of rented premises within
urban areas. According to Section 2 (a) of the Ordinance, the term
“building” means any building or part thereof, together with all fittings
and fixtures therein, if any, including any garden, garage, out-house
and open space attached or appurtenant thereto. Since we are dealing
with the issue in the context of fixation of fair rent, therefore, it would
be expedient to highlight its definition provided in Section 2 (c) of the
Ordinance according to which “fair rent” means the fair rent of any
premises determined by the Controller under this Ordinance.
7. In order to achieve the payment of fair rent of the premises by the
landlord or even by the tenant of the rented premises, a rent case can
be filed by both under Section 8 of the Ordinance before the concerned
Rent Controller, who has the statutory duty to fix the fair rent of the
rented premises after taking into consideration (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. A further rider is provided under sub-section (2)
that where any addition to, or improvement in, any premises has been
made or any tax or other public charge has been levied, enhanced,
CPs 563-K/24 etc
6
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,
notwithstanding the provisions of Section 9 be determined or, as the
case may be, revised after taking such changes into consideration. It is
somewhat noticeable that the legislature has allowed a remedy under
Section 8 of the Ordinance for making an application not only by the
landlord for determination of fair rent of the premises but also by the
tenant to safeguard the interest of the tenant against the exorbitant or
unrealistic demand of rent by the landlord. Sanguine to the fulfillment
of consideration required to be fulfilled before fixation of fair rent by
the Rent Controller, it is clearly provided under Section 9 of the
Ordinance that where the fair rent of any premises has been fixed, no
further increase thereof shall be effected unless a period of three years
has elapsed from the date of such fixation or commencement of this
Ordinance, whichever is later. While sub-section (2) of Section 9
accentuates that the increase in rent shall not, in any case, exceed ten
percent per annum on the existing rent.
8. It is clearly elucidated in Section 20 of the Ordinance that the Rent
Controller and the appellate authority for the purpose of deciding any
case under this Ordinance have powers of a Civil Court under the
Code of Civil Procedure, 1908 (“CPC”) in respect of only (a) summoning
and enforcing the attendance of any person and examining him on
Oath; (b) compelling production or discovery of documents; (c)
inspecting the site; and (d) issuing commission for examination of
witnesses or documents. In tandem, Section 22 commands and
connotes the way that every final order passed under this Ordinance
shall be executed by the Controller and in order to attain the finality
and avoid multiplicity of proceedings, it is further provided in this
special law, confined to a prescribed field of action or operation, that
all questions arising between parties and relating to the execution,
discharge or satisfaction of the order shall be determined by the
Controller and not by a separate suit, with an explanation that in the
execution proceedings relating to the order of ejectment, no payment,
compromise or agreement shall be valid unless such payment,
compromise or agreement is made before or with the permission of the
authority passing the order.
CPs 563-K/24 etc
7
9. What is fair rent? Indeed, the determination of fair market rent is an
essential component of any rented premises, not only for the landlord
but also for the tenant. A proper determination of fair rent helps in
avoiding the occasion of charging the rent too high or too low,
therefore multiple parameters and benchmarks have been fixed in the
Ordinance for the assistance of the Rent Controller which he must
watch out for and mull over at the time of fixing fair rent of any rented
premises in his jurisdiction. There is no standardized formula of “onesize-fits-all” or any other orthodox method which can be applied across
the board or universally for every rented premises but each rented
premises has its own features such as its location, property category
and size, parallel rent statistics, and distinctiveness, therefore, the
Rent Controller is obligated to follow, with a conscious approach, the
yardstick/indicators provided under Section 8 of the Ordinance for
determination of fair rent with regard to such particular rented
premises for which an application has been made for determination of
fair rent before him. It is not the intent of the legislature that at the
time of fixing fair rent by the Rent Controller for any premises, the
litmus test of all constituents and characteristics provided under
Section 8 of the Ordinance should be present in unison or conjointly,
but such conditions are provided as a yardstick which are required to
be considered by the Rent Controller. The opposing party cannot claim
that all conditions should work together or be congregated with strict
proof on the touchstone of conditions word by word, but in our view, if
one or two grounds are proved satisfactorily and others are not, even
in that set of circumstances, the Rent Controller may fix the fair rent
proportionately and equitably, being mindful to the proven grounds;
but cannot decline the application on the ground that the applicant
has failed to prove or substantiate all preconditions as sine qua non for
fixation of fair rent as provided under Section 8 of the Ordinance.
10. Indubitably, the purposefulness of exercising jurisdiction under
Article 199 of the Constitution of the Islamic Republic of Pakistan,
1973, is to foster justice, and if the error is so patent, the High Court
can interfere. Even the concurrent findings, recorded erroneously by
the for below, may not be considered so revered or untouchable that it
cannot be upset. The impugned judgment divulges that all relevant
factors and grounds raised were properly considered and answered by
CPs 563-K/24 etc
8
the learned High Court and the same does not require any interference
by this Court. The concurrent findings of the three courts neither
suffer from any illegality or material irregularity affecting the merits of
the case nor are the same based on any misreading or non-reading of
evidence. The learned counsel for the petitioners also failed to convince
us that there is any factual, legal or jurisdictional error in the
impugned judgment which may warrant any interference by this
Court. However, the learned counsel for the petitioners, as a fallback
position, made a request that the petitioners may be allowed to pay the
arrears of rent in installments. In our view, it is a matter between the
landlord and tenants, therefore the petitioners may approach to the
landlord and now all such questions can only be decided by the Rent
Controller under Section 22 of the Ordinance.
11. As a result of the above discussion, all aforesaid civil petitions are
dismissed and leave is refused.
Judge
Judge
KARACHI
19th July, 2024
Mudassar/
Approved for reporting
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