' SHAHID ANWAR BAJWA, J.--- This writ petition is directed against the judgment by the 7th Additional Judge, South Karachi in First Rent Appeal No,155 of 2008. The petitioner is the tenant.
Tenancy is in respect of office premises comprising of 3200 sq.Ft. In Mandviwala Building, Old Queens Road, Karachi. The tenancy commenced with effect from 24-3-1972. In 1979 rent was increased to Rs,4000 per month which again in turn was increased with effect from November, 1998 to Rs,8,178 per month. In May, 2004 application under section 8(1) of the Sindh Rented Premises Ordinance, 1979 was filed wherein prayer was for fixation of rent at the rate of Rs,30 per sq.Ft. Was made. The Rent Controller vide his order dated 4-8-2008 decided the rent application and fixed the rent at Rs,25 per sq. Ft. Per month i,e, a total of Rs,80,000 per month. An appeal was filed and vide impugned order announced on 18-10-2008 the Appellate Court concurred with findings recorded by the Rent Controller and upheld its order.
2. The learned counsel for the petitioner primarily made the following submissions:---
(i) That the Rent Controller based his decision on three pieces of evidence. Firstly a letter by Ameer Brothers available at page 123 of the file and produced as Exh.A/3 before the Rent Controller whereby the said Ameer Brothers had given an offer to take the premises on rent at the rate of Rs,30 per sq. Ft. Learned counsel submitted that it was only an offer and cannot be treated as evidence of rent prevailing for similar premises situated in the similar circumstances and in the adjoining locality.
(ii) The second piece of evidence was Lease Agreement dated 5-11-1999 between Messer Prudential Capital Management Limited and Saudi Pak Commercial Bank Limited. Under this agreement the property situated in the same locality was taken on rent by the tenant at the rate of Rs,32 per sq.Ft. The learned counsel invited my attention to para where it was stated that it was mutually agreed that rent agreed to be paid in respect of the lease period shall stand adjusting against the outstanding liability of the lessor. He submitted that stricto senso this cannot be treated as rent agreement because it was adjustment of liability for which rent was to be used under that agreement. Learned Counsel submitted that the cases are not unknown where and when lender enters into an agreement with borrower for adjustment of liabilities, the lender does make allowance for factor of adjustment of liability. He therefore, submitted that this agreement was a special arrangement and is therefore not an agreement of prevailing rate of rent in the locality. Learned counsel, further submitted that the premises under question in this matter is an old building. He stated that he has stated in his written statement that rent for the area is Rs,7 per.
Sq.Ft. And the same was asserted by him in his affidavit-in-evidence.
(iii) Two independent witness produced by the landlord/respondent were one Shahid Aziz an officer of prudential Capital Management Ltd., and other Muhammad Kakil who claimed himself to be. a Director of Ameer Brothers. Witness Asif had no authority to depose on behalf of the Pak Saudi Commercial Bank Limited.
(iv) The learned counsel referred to documents relating to payment of taxes to justify that rent increase granted by the two Courts below is not in accordance with the provisions of the law.
3. About the Appellate Court the learned counsel stated that the Appellate Court did not apply its independent mind and merely stamped decision of the Rent Controller.
4. Learned counsel relied _upon following case-law on question of maintainability of. Constitution Petition and in respect of evidence on merits:--- (1). Amina Nuzhat Babar v. Khan Sher 2002 CLC 1, (2) Muhammad Nawaz and others v. Muhammad Ibrahim and others 1986 CLC 1860, (3) Haji Mohibullah & Co. And others v. Khawaja Bahauddin 1990 SCM R 1070 (4) H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCM R 2115
(5) Mst. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and others PLD 2007 Kar.
50.
5. The learned counsel for the respondent supported both the orders of the Rent Controller and of the Appellate Court, and made the following points in his submissions:---
(i) The writ petition is not maintainable because there are concurrent findings of facts by two courts below.
(ii) Ground of increase of rent were clearly brought out through evidence and the evidence remained unshaken in cross-examination.
6. Learned counsel relied upon following case-law in this regard:-
(1) Messer Oceanio International Pvt. Ltd., v. Messer Lalazar Enterprises and others 2009 MLD 91, (2)
Messer Olympia Shipping & Weaving Mills Ltd. And others v. State Life Insurance Corporation of Pakistan 2001 SCM R 1103 (3) United Bank Limited v. Qamar Hussain and 2 others 1991 CLC 1184
(4) Habib Insurance Co. Ltd. v. State Life Insurance Corporation of Pakistan Ltd. And another PLD 2006 Kar.
294.
(5) Muhammad Azhar Khan v. Abdul Matin 1985 MLD 185 (6) Muhammad Azhar Sohail and others PLD 1981 SC 246 (7) Ali Muzaffar v. Syed Muhammad Ali 2006 CLC 379 (8) Messer Shamim Akhtar v.
State Life Insurance Corporation of Pakistan, Karachi and 2 others PLD 2005 Kar.
554.
7. While exercising his right of reply, learned counsel for the petitioner stated that rent increase allowed by the Rent Controller is exorbitant and therefore prayed that the matter may be remanded to the Rent Controller for fresh decision in accordance with the law.
8. I have considered the arguments submitted by the learned counsel. I have also gone through the record as well as case-law by the learned counsel. I will first deal with the question of maintainability of constitution petition where there are concurrent findings of fact by two courts below.
9. In Amina Nuzhat Babar's case (supra), it was out of a matter relating to an ejectment application which application was dismissed by both the courts below and the matter was taken in by the High Court in writ petition. The High Court examined evidence on record and noticed that the landlady after applying for obtaining sanction from Municipal Corporation instituted the ejectment appreciation on ground of default and reconstruction and evidence regarding construction had not been considered by both the courts below. The High Court therefore, set aside both the orders below and allowed the Constitution Petition and remanded the matter for fresh decision. The High Court held that where concurrent findings are based on (a) misreading of evidence; (b) non- reading of evidence; (c) erroneous assumption of facts and (d) misapplication of law the High Court can interfere with concurrent findings while exercising its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
10. In Muhammad Nawaz's case (supra) the High Court observed that supervisory jurisdiction conferred on the High Court under Article 199 of the Constitution is essentially both discretionary and acquirable and must be exercised to aid and to subserve the cause of justice but surely not to defeat it. The orders of court below were upheld in this case.
11. Facts of Haji Mohibullah & Company's case (supra), were that the respondent in that case filed ejectment application in respect of a godown on ground of default and personal need of his son.
Rent Controller and the Appellate Court concurred and dismissed the application by holding that though it was not mandatory on part of appellant to disclose the purposes for which he required the premises claimed, but, in order to ascertain his bona fide, it was necessary to examine the basis on which he sought ejectment of his tenant and since the landlord in that matter had not mentioned in his petition anything about the agency for which he had applied and for which he sought ejectment and as to how much space were required by him. The two courts below dismissed application and the appeal respectively. However, writ petition was accepted by the High Court. The matter ended in the Supreme Court. The Supreme Court concurred with judgment of the High Court and observed that in writ petition the High Court does not interfere with concurrent findings of the fact recorded by the court blow. However, where there is misreading of evidence or omission to take into consideration material evidence, or where any statute law or rule of law laid down by a superior court has not been applied by the Courts below, the High Court can interfere. The Supreme Court after observing that it is settled law that there is no legal requirement on the part of landlord to disclose nature of business he intends to conduct in the premises, for which he has made an application seeking possession and that though there may be a failure on part of the landlord to mention in his eviction petition that he was not occupying smilar commercial property in the same area suitable for his needs, it would not be fatal to his case, if otherwise his bonafide need was established. Since the two courts below had misread the evidence on facts as well as not appreciated the legal position properly the Supreme Court upheld order of the High Court by which order concurrent decisions recorded by the two courts below had been set aside by the High Court.
12. H. Cooper's case (supra), was a case relating to an application under section 8 of the Sindh Rented Premises Ordinance, 1979. Application was filed by the respondent/landlord for fixation of fair rent. The Rent of the flat at the time of application was Rs,146 and 100 per month respectively and application was made for increase of rent at the rate of Rs,1,200 per month and Rent Controller fixed fair rent of each flat at the rate of Rs,500 per month with effect from 31-3-1992. Landlord filed appeal and the Appellate Court increased rent to Rs,800 per month payable with effect from one month of filing the application. The question before the Supreme Court was whether increase of rent would take effect from date of application or from date the order was passed by the Rent Controller. Amount of fair rent was not questioned in the Supreme Court. The honourable Supreme Court held that the provisions contained in section 85 of the Sindh Rented Premises Ordinance, 1979 do not provide as to the date from which tenant would be liable to pay fair rent by the Rent Controller. Therefore, the honourable Supreme Court held, it did not mean that Rent Controller could not fix rent from the date of application and where the statute does not provide date, he can fix date for the payment of fair rent either from date of application or from the date of order or even from the date in between the above two dates keeping in view circumstances of a particular case.
13. In Mst. Masudah Jawad's case (supra), which was decided by the learned Single Judge of this Court, the petitioner before High Court was tenant Of a commercial property in Karachi for about 56 years. Previously the petitioner used to pay rent at the rate of Rs,115 per month. However, with mutual consent rate of rent was increased to Rs,800 per month. Thereafter the landlord filed a case in 1993 for fixation of fair rent at Rs,8,000 per month. Application under section 8 of the Sindh Rented Premises Ordinance, 1979 was dismissed by the Rent Controller. The matter was remanded by the Appellant Court and upon remand the Rent Controller fixed rent at Rs,2500 per month. The Appellate Court increased it to Rs,6400 per month. In writ petition only prayer made was that amended rate be made applicable with effect from date of the order. The High Court followed H.
Cooper's case and after considering the fact that the Rent Controller had fixed rent at Rs,2500 per month and the Appellate Court had increased it Rs,6400 per month ordered to pay fair rent from the date of the order of the Appellate Court.
14. Mst. Tahira Dilawar Ali Khan's case (supra), was a case decided by Mr. Justice Anwar Zaheer Jamali, as a Judge of this Court (as his lordship then was). Eviction was ordered by the Rent Controller on ground of personal need which order was maintained by the Appellate Court. It was held that Constitutional jurisdiction cannot be exercised to reappraise evidence and to come to its own independent findings where order is recorded by the forums below after giving good reasons in support of it. It was further observed that Superior Courts had ample jurisdiction to refuse a relief when granting it would amount to injustice because High Court was not bound to grant relief to aggrieved person simply because he was entitled to the same, if grant of such relief was immoral, unfair or against dictates of good conscience and fair play. It was further observed that while hearing constitution petitions under Article 199 of the Constitution arising out of cases under Sindh Rented Premises Ordinance, 1979, the High Court does not act Court of 2nd Appeal. On the question of burden of proof regarding non-disputing of certain assertions by the petitioner in his affidavit in cross-examination it was observed that after leading of evidence by both the parties the burden of proof loses its significance and it is only a matter of preponderance of evidence which enables the court to record correct conclusion on the basis of evidence led by both the parties. Writ petition was dismissed because the learned two courts below in that case had correctly reached the conclusion that they had reached.
15. Since Muhammad Azhar Khan's (supra), was firstly a decision in First Rent Appeal and secondly on the question of ejectment for personal bona fide need and default in payment of rent and since both these questions are not involved in the matter before me, the case-law is clearly distinguishable.
16. The matter in dispute in Messer Olympia Shipping & Weaving Mills Ltd., and others case was a question relating to fixation of fair rent. The appellant before Supreme Court was tenant in an office premises in Karachi and was paying rent at the rate of Rs,0.50 per month since 1955. In 1991 the respondents filed application for determination of fair rent under section 8 of the Sindh Rented Premises Ordinance, 1979. The Rent Controller determined fair rent at rate of Rs,7 per sq.Ft. Both the parties filed appeals in the High Court, as at that time the appellate forum was the High Court increased rent from Rs,7 per sq.Ft. To Rs,8.57 sq.Ft. The Supreme Court noted that very wide discretion has been conferred by law on the Rent Controller to fix fair rent from date of application or from date of order in suitable cases even from a date between the two events. Discretion vested in Rent Controller as well as Appellate Court is however, not arbitrary or whimsical. It was further held in this case that four factors incorporated in section 8 of the SRPO are in the nature of guiding principles for the Rent Controller, cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion. Nevertheless, main ground in most cases would be the prevalent market rent of similar premises situated in similar circumstances in the same or adjoining locality. Existence of four conditions is not aii invariable of rule of law. Concurrent findings were not interfered with by the Supreme Court.
17. In Messer Oceanic International (Pvt.) Limited's case it was held by a Single Judge of this court that if knowledge of court itself is beneficial towards decision of one issue then there is no restriction under law that such knowledge was not be exercised. In this case question related to increase of rent and High Court did not interfere with order passed by both the courts below.
18. In United Bank's case an application for ejectment on account of personal need was allowed by the Rent Controller and appeal was dismissed by the Appellate Court. It was held by the High Court that appreciation of evidence could not be undertaken in exercise of Constitutional Jurisdiction of High Court.
19. In Habib Insurance Company's case it was held that findings of facts, normally, are not to be interfered with in exercise of constitutional jurisdiction unless it was shown that the findings were recorded by misapplication of evidence and against well-settled principles for appraisal of evidence. In Muhammad Sharif's case the Supreme Court held that if another conclusion is possible on evidence adduced, it does not make it a case for interference with findings of facts recorded by the courts below. In Ali Muzaffar's case and other cases similar conclusions have been rendered by various Courts. It would be adding only to volume and not to weight by citing those authorities.
20. In Messer Shamim Akhtar's case relevant facts were that an application under section 8 of the Sindh Rented Premises Ordinance, 1979 was filed before Rent Controller and it was stated that though rent was Rs,100 per month but rent in the adjoining locality was ranging between Rs,4 to Rs,18, per sq. Ft. Rent at the rate of Rs,17/-per sq. Ft. Per month was claimed. Actual rent of certain other premises in the same locality was cited in the application. Rent Controller disposed of application by fixing fair rent at the rate of Rs,12 per sq. Ft. Per month. Order was maintained by the Appellate Court. Regarding scope of constitutional jurisdiction it was observed as under:--- "(13) Before discussing factual aspects of the case and examining the above noted contention of the learned counsel, it would be appropriate to mention here that the jurisdiction of this Court under Article 199 is extraordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate courts, where jurisdiction has been conferred upon it by some specials statutes. Moreover, as held by this Court in the case Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 M LD 1033 "jurisdiction of this Court under Article 199 of Constitution cannot be invoked to circumvent the provisions of rent laws so as to serve the purpose of second appeal, which has been specially done away by the legislature, while promulgating the Ordinance of 1979, unless the findings recorded by the Tribunal are found to be based on patent misreading of evidence or the same are arbitrary, capricious and perverse and have resulted in gross miscarriage of justice".
21. Regarding merits of the case it was observed as under:---
22. Above survey of the case-law cited by the learned counsel IA indicates that scope of interference in constitutional jurisdiction is very limited particularly so when there are concurrent findings by the courts below. The case-law indicates that High Court should interfere with concurrent findings, in, inter alia, the following circumstances:---
(a) When there is a misreading of evidence;
(b) When there is non-reading of evidence;
(c) When there is erroneous presumption of facts;
(d) When there is a misapplication of law;
(e) In the aid and to sub server cause of justice but surely not to defeat it;
(t) When a rule of law laid down by the superior Courts has not been correctly applied by the Courts below;
(g) Constitutional jurisdiction cannot be exercised to reappraise evidence unless lower courts appraised evidence in violation of well-settled principles for appraisal of evidence;
(h) Even if a different conclusion is possible, the evidence shall not be reappraisal and such conclusion shall not be recorded by the High Court in exercise of its constitutional jurisdiction;
(i) Constitutional jurisdiction cannot be used as a second appeal;
(j) If the conclusion of the courts below are not found to be arbitrary, capricious or perverse.
23. In the present case there have been three pieces of evidence brought by the landlord; (a) a letter by a property dealer stating that he is prepared to take the property on rent at the rate of Rs,30 sq.Ft. The said property dealer appeared in evidence and learned counsel for the petitioner failed to point as to on what score his evidence not be believed. Secondly lease agreement between Saudi Pak Commercial Bank Ltd., and Messer Prudential Captain Management Ltd., whereby rate of rent was agreed at Rs,32 per sq.Ft. Learned counsel for the petitioner very strenuously argued that as per Clause 3 of the agreement rent was used for the purposes of settlement of outstanding liabilities of the landlord. The learned counsel emphasized in most cases it is not unknown when a lender settles with the borrower he gives due allowance to the borrower. I think this is normal course of human events. However, fact which cannot be lost sight of it is that rent of the premises according to the lease agreement was firstly on the basis of lease executed in 1999 and secondly it was Rs,32 per sq.Ft. Whereas in this case the Rent Controller has allowed increase in rent at the rate of Rs,25 per sq.Ft. Per month and Rent Controller order was with effect from filing of the application i,e, a date in the year 2004. 5 years time difference between effective as per order of the Rent Controller and lease agreement with Saudi Pak Commercial. Bank Ltd. And then a rate which is almost 25% less than rate of Saudi Pak Commercial Bank Ltd., do indicate that this aspect facts have not been lost sight of by the Rent Controller.
24. Learned Counsel for the petitioner stated that it was exclusive liability of landlord, to establish rent in the same locality. I cannot agree with it without any reservation. Rent litigation is civil litigation. In civil litigation as soon as both the parties have produced their evidence burden of proof loses its significance as it is only a matter of preponderance of evidence which enables the Court to record correct conclusion on evidence led by the parties. What was the evidence led by the present petition in this case. The petitioner in his written statement merely stated (in para-9) that rental value in the area was not more than Rs,5 to Rs,7 per sq.Ft. In his affidavit-in-evidence in para 12, the petitioner merely reported what he has stated in his written statement. In cross- examination petitioner's witness admitted that it is not in his knowledge that the rate of rent in that area is about Rs,50 per sq.Ft. He did not thus lend support, at least on this score, to his own affidavit in evidence. All the other elements of increase such as increase in property tax construction cost, conservancy charges and other were brought in evidence by the landlord. However, the petitioner did not produce any evidence whatsoever to establish that either rate was Rs,7 as pleaded by him in his written statement or increase as stated by the Respondents No,3 in his pleading and in his evidence were not realistic. Therefore, merits of the case also do not justify any interference with concurrent findings.
25. On behalf of Saudi Pak Commercial Bank one Mr.Asif was produced as witness. The learned counsel submits that since he did not have specific power granted to him by the Board of Directors to come as a witness he could not do so and his evidence should be discarded. In case of a company, law does not require that everything to be done by a company, be it purchase of pin cushion or hiring of a gardener or writing a letter to the government department should be done only and only if Board of Directors specifically approve it. Board of Directors exercises overall superintendence and in each case approves appointment of Chief Executive, who subject to supervision and control of the Board of Directors, carries on affairs of the company. To claim that Chief Executive cannot even wag his pencil without having every wag being separately and specifically authorized by Board of Directors would be stretching the things to the extent of incredulity. No doubt, essential principal and fundamental things like appointment of principal officers, institution of litigation etc., must be done with the approval of Board of Directors but if in a case a witness is sent in which the company is not even a party, I do not think that approval of the Board of Director would be required for such a minor act.
26. I therefore, do not find merits in this petition and the same is therefore, dismissed in limine. The parties are left to bear their own costs.