MUHAMMAD TASNIM, J.---Through this petition the petitioner, Sadiq Brothers, has called in question the judgment, dated 24-8-2009, passed by learned II-Additional District Judge, Karachi South in F.R.A. No.32 of 2005, whereby the appeal filed by the petitioner was dismissed and the judgment, dated 18-1-2005 passed by the learned VII Rent Controller, Karachi South in Rent Case No.1265 of 2001, allowing the application of the respondent No.3 under section 8 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called "SRPO"), was maintained.
2. Facts leading to filing of the present petition are summarized as under:
3. The petitioner is tenant of the respondent No.3 in respect of tenement No.3 having area 264 sq. ft. in building constructed on Plot No.SR-9/12/1, Kanhaya Lal Street, Karachi (hereinafter referred to as "the Premises"). As per the averments made in the petition, in the year, 1955 the petitioner obtained said premises from its previous owner, namely, Adam Ali, on a monthly rent of Rs.12 against payment of "Pagree". Subsequently, somewhere in 1960-61 the said property was purchased by the present respondent No.3 whereafter the petitioner started tendering rent to him and rent was increased to Rs.130 per month. Respondent No.3 filed Rent Case No.1265 of 2001 under section 8 of the SRPO before the VII-Senior Civil Judge and Rent Controller, Karachi South for fixation of fair rent in respect of the Premises. The petitioner contested the matter by filing written statement on 28-9- 2001. The respondent No.3 examined himself as his witness by filing his affidavit-in-evidence and was cross-examined by the opposite side. As against this, the petitioner examined Abdul Rehman Sadiq and Afzal Hussain by filing their affidavit-in-evidence and they were cross-examined by the Advocate for the respondent No.3. Learned Rent Controller, after hearing the parties, vide his judgment, dated 18-1-2005, allowed the application filed by respondent No.3 in the following terms:- "In light of the discussion on foregoing point, I fix the faire rent at the rate of Rs.12 (rupees twelve only) per sq.ft. per month for the tenement in question from the date of institution i.e. 16-8-2001.
Resulting thereto application in hand is allowed with no order as to costs."
4. Being aggrieved by the above judgment of the learned. Rent Controller, the petitioner challenged the same by way of filing F.R.A. No.32 of 2005, The learned Appellate Court heard the parties and vide judgment, dated 27-8-2009, dismissed the said F.R.A. by holding that he did not find any illegality or irregularity in the order passed by the Rent Controller and the order of the Rent Controller needs no interference. The said two judgments of the Courts below have been challenged through this petition.
5. I have heard Mr. Khalid Javed, Advocate for the petitioner and Mr. K.A. Whab, Advocate for respondent No.3 and have examined the record with their assistance.
6. Mr. Khalid Javed, learned counsel for the petitioner, submitted as under:--
(i) That both the Courts below have misread the evidence and have based their findings on inadmissible evidence, hence the same cannot be sustained in the eyes of law.
(ii) That both the Courts below have passed their respective judgment in violation of the well- settled principle of law laid down by the Hon'ble Supreme Court of Pakistan.
(iii) That both the Courts below failed to consider the factors, namely, (a), (b) (c) and (d) of section 8 of the SRPO as the rate of rent fixed by the Courts below is extremely exorbitant inasmuch rent has been increased from Rs.130 per month for both the tenements to Rs.3168 per month without any evidence on record for such increase.
(iv) That both the Courts below have granted increase in the rent from the date of filing of rent application instead of from the date of order or any other date in between.
In support of his above submissions, the learned counsel has placed reliance on the following cases:--
(a) 2001 SCMR 1103 (Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan.
(b) 2008 CLC 517 (State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt.) Ltd. and 2 others.
(c) 1986 CLC 1570 (Banasri Silk Cloth Museum v. Mst. Aetna Bai).
(d) 1992 SCMR 505 (Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others).
(e) PLD 2007 Karachi 485 (Mst. Masudah Jawad through her Daughter v. State Life Insurance Corporation of Pakistan, Karachi and another).
(f) PLD 1993 Karachi 9 (Messrs Eastern Automobiles (Private) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi).
(g) 1991 CLC 351 (Muhammad Shafi Khan v. Meher Sultan).
(h) 1992 MLD 1588 (Abdul Hamid v. Abdul Ghani).
7. As against the above Mr. K.A. Wahab, learned counsel for respondent No.3, has supported the judgment passed by the Courts below, and submitted as under:
(i) That both the Courts below have recorded their findings strictly in accordance with law and the rules laid down by the Superior Courts.
(ii) That the findings of fact recorded by the Courts below cannot be disturbed in the constitutional jurisdiction of this Court.
(iii) That all the ingredients of section 8 of the SRPO are not needed to be fulfilled and on compliance of any one of them fair rent can be fixed by the Rent Controller.
In support of his contentions, the learned counsel has cited the following judgments: Sr.Name of TenantsArea of TenementMonthly Rent (1)Remani Printing Press900 sq.ft Rs. 4,250 (2)Zaki Ahmed 120 sq.ft Rs. 1,050 (3)Shamsuddin Niazuddin180 sq.ft Rs. 1,200 (4)Seedat Traders 115 sq.ft Rs. 875 (5)Shabbir S. Antaria110 sq.ft Rs. 875(a) PLD 2005 Karachi 554, (Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others).
(b) 1993 CLC 1726, (State Life Insurance Corporation of Pakistan v. Pakistan National Shipping Corporation).
(c) 1993 SCMR 2115, (H. Cooper and others v. State Life Insurance Corporation of Pakistan).
(d) 2001 SCMR 1103, (Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan).
(e) 2009 YLR 1124, (State Life Insurance Corporation of Pakistan, Karachi v. Messrs Victor Restaurant through Partners and others).
8. Now, taking up the first and third submissions of Mr. Khalid Javed, learned counsel for the petitioner, that both the Courts below have recorded the findings contrary to record and have passed the judgments while relying upon inadmissible evidence, and the Courts below failed to consider the factors of section 8 of the SRPO. Further submitted that fair rent is extremely exorbitant from Rs.130 per month to Rs. 3168 per month. The learned counsel invited my attention to paragraphs 2 to 6 of the affidavit-in-evidence of respondent No.3, Nooruddin. He also invited my attention to the following cross-examination of respondent No.3:-- "(2) That with the passage of time the Property Tax, Water and Conservancy Charges have increased considerably.
In the year, 1989 the Water Conservancy Charges were Rs.1801/50 as compared to Rs.14,465 in the year, 2000. I produce herewith photocopies of the same as Exhibit A/1 and Exhibit A/2. Likewise the property tax in the year, 2000 was Rs.7122 as compared to Rs.2322 in the year, 1989.
(3) That the tenement in question is situated in a prime commercial area in the centre of the city of Karachi and the monthly rate of rent of similar premises situated in the similar circumstances is not less than Rs.20 per sq. feet per monthly which comes to Rs.5,280 per month.
(4) That due to inflation and devaluation of Pak currency as well as taking into consideration the cost of construction, repair and maintenance now prevailing as compared to 1960-61, when the rent @ Rs.130 per month was fixed have been increased manifold and the monthly rent @ Rs.130 is no manner fair and reasonable.
(5) It may be submitted that in the same building the other tenants are paying monthly rent as under:-- In another building in the same locality which is also owned by the applicant the tenants of the said building are paying rent as under:-- Sr.Name of TenantsArea of TenementMonthly Rent (1)Yousaf Bhai 96 sq.ft Rs. 1,050 (2)Khurshid Trading Corp163 sq.ft Rs. 1,000 (3)Relax Medical 163 sq.ft Rs. 1,000 (4)Shafa Medico 170 sq.ft Rs. 1,050 (5)Ali Muhammad 16 sq.ft Rs. 600
(6) That the building in which the rented premises is situated is in a good condition. It is denied that only land was rented out by the previous landlord and all the construction was raised thereon by the opponent themselves at their own cost as alleged."
In the cross-examination, the witness stated as under:-- "It is correct that opponent himself spent amount over renovation, repairing, fitting and fixture on both the premises at his own cost, within the boundary."
"The electricity available in the shop subject-matter of the Rent Case No.1266 of 2001 and so also Water. Electricity connection is available in the shop subject-matter of R.C. 1265/2001 but not available and wash room."
"The Shop Nos.10 and 11 having area about 3016 sq. feet. The Shop No.3 in Case No.1265 of 2001 having Area of 264 Sq.ft."
"The building is known as Rababhai Mulla Salehbhai Anjarwala Building, consisting upon seven tenements, which are shops. The two shops are located in backside while seven other shops located on front side."
In support of above contention learned counsel for petitioner has invited my attention to the case of Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others reported as 1992 SCMR 505, wherein Hon'ble Supreme Court of Pakistan has observed as under:- "The High Court in constitutional jurisdiction could not have sat as a Court of appeal on the question of fact. The finding of fact recorded by a competent Tribunal can be interfered with by a High Court in exercise of constitutional jurisdiction if the same is based on no evidence or is founded on misreading of evidence or is recorded by ignoring material evidence on record.
However, a finding of fact cannot be interfered with by the High Court in exercise of constitutional jurisdiction merely on the ground that a different view on the basis of same evidence was possible."
Learned counsel for petitioner also brought to my notice another judgment of Hon'ble Supreme Court of Pakistan reported in PLD 2006 SC 24, wherein Hon'ble Supreme Court of Pakistan held as under: "(8) The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court."
9. Keeping in view of above legal position, it can be safely concluded that a High Court in its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot sit as a Court of appeal on the question of fact, however, a finding of fact recorded by a competent forum can be interfered with by the High Court in its constitutional jurisdiction if the same was based on no evidence or was recorded by ignoring material evidence on record. Finding of fact cannot be interfered with by the High Court in its said jurisdiction merely on the ground that a different view on the basis of the same evidence was possible.
10. Keeping in view the above settled law, when the judgment of the learned Rent Controller is examined it is found that other tenements in the same building and so also in the adjoining buildings owned by respondent No.3 have been quoted by the respondent in his affidavit-in--- evidence and the learned Rent Controller came to the conclusion that the Rent of the other tenements is higher than the tenements in possession of the petitioner. To deal with the point in issue it would be advantageous to quote provisions of section 8 of the SRPO, which reads as under:-- "(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."
11. The careful examination of the above quoted provision of section 8 of the SRPO indicates that Controller shall on application filed by tenant or landlord shall determine fair rent of the premises after taking into consideration the factors namely the rent of similar premises situated in the similar circumstances, in the same or adjoining locality, the rise in cost of construction and repair charges, the imposition of new taxes, if any, after commencement of the tenancy and the annual value of the premises, if any, on which property tax is levied.
12. From the reading of the facts of the case in hand and from the reading of the above provision of law it is clear that admittedly case premises were let out to the petitioner in the year, 1955 at the rate of Rs.12 per month, which were subsequently enhanced to Rs.130 per month, when the cost of construction and the cost of land even in the heart of city was nominal in comparison to the prevailing cost of land and cost of construction. No doubt respondent No.3 has not raised any construction in between, but the cost of the land has gone up manifold. Learned Rent Controller while fixing the rent of the case premises at the rate of Rs. 12 per sq. feet per month has taken into consideration not only this aspect of the case but other aspect relating to which documentary evidence was brought on record, whereby imposition of property tax has also water and conservancy taxes were brought on record to show that aforesaid two taxes have been raised drastically. Learned Rent Controller while fixing the rent at the rate of Rs.12 per sq. feet per month has already taken into consideration the rent of other premises located in the same building or in the adjoining buildings. The examination of the above rent of the same building or of the adjoining building shows that rent of all the tenement ranges between Rs.7 and 8 per sq. feet per month per shop and such rent was fixed about nine years prior to passing the impugned order by the learned Rent Controller in the present case, hence considering the period of pendency of rent application, the learned Rent Controller has rightly fixed the rate of rent at the rate of Rs. 12 per sq.feet per month which does not call for interference by this Court in the constitutional jurisdiction. Such findings of learned Rent Controller neither suffer from any illegality nor are based upon any misreading of evidence nor have been recorded by ignoring material evidence on record.
13. The learned Appellate Court has minutely dealt with the case and has noted that entire evidence brought before the learned Rent Controller was considered and finding of fact was recorded by the learned Rent Controller. The learned appellate Court upheld the finding of fact recorded by the learned Rent Controller and came to the conclusion that finding of facts recorded by the learned Rent Controller was in line with the evidence on record, no misreading or non- reading of evidence was brought to the notice of the learned Appellate Court. Since the findings of fact recorded by the two forums below take care of all the evidence i.e. documentary or otherwise available on record, hence cannot-be disturbed in the constitutional jurisdiction of this Court under Article, 199 of the Constitution of Islamic Republic of Pakistan, 1973.
14. The other aspect of the case argued by Mr. Khalid Javed, learned counsel for petitioner that Courts below did not consider the factors namely (a), (b), (c) and (d) of section 8 of the SRPO while fixing the fair rent of the premises of the petitioner from Rs.130 to Rs.3168. To appreciate the above contention of the learned counsel for petitioner the rule laid down by the honourable Supreme Court of Pakistan can be referred, wherein honourable apex Court while interpreting the provisions of section 8 of the SRPO in the case reported as Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103), While concluding the judgment honourable Supreme Court of Pakistan has taken into consideration all the judgments on the subject and has finally concluded as under: "(15) Besides the above decision of this Court, there are a number of reported as well as unreported judgments of this Court and the Sindh High Court in which it has been held it is not an invariable rule of law that for determination of fair rent, all the four factors postulated in section 8 of the Ordinance must co-exist. A reference may be made to Shakeel Adilzada v. S.M. Rafi (1995 MLD 181) decided by one of us (Rana Bhagwan Das, J.) in the Sindh High Court holding that it was not at all necessary that all the four grounds must co-exist in each and every case for fixation of fair rent. In this case apart from referring to the judgments passed by this Court in C.P.L.A., No.180-K of 1988 and in the case of Mst. Muneera Kaleemuddin (supra), an unreported judgment by Dr. Tanzilur Rehman, J. (as he then was) in F.R.A. No.275 of 1986, Messrs Eastern Automobile (Pvt.) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi (PLD 1994 Karachi 9) and Mst. Agila Khatoon v. Abu Bakar Khan (PLD 1987 Karachi 541) were also taken into consideration. There is yet another unreported judgment from the Sindh High Court in Messrs Kadvavi Company v. Mian S.M. Yousuf Baghpati (F.R.A. No.610 of 1998, decided on 9-2-2000) by Sabihuddin Ahmed, J., taking the view that all the four factors enumerated in section 8(1) of the Ordinance have to be cumulatively taken into consideration for determination of a fair rent. Nevertheless they are only required to be taken into consideration for the purpose of exercising judicious discretion and cannot be applied mechanically. Identical view was expressed by Nazim Hussain Siddiqui, J. in the Sindh High Court in Noori Trading Corporation (Pvt.) Ltd. v. Abdul Ghafoor (1997 CLC 205) observing that no doubt section 8 of the Ordinance reveals that in case of fixation of fair rent four factors are to be taken into consideration, but it is not necessary that all the four factors would be available in each and every case.
(16) Viewed in the light of the language employed by the Legislature and the earlier precedents it may be observed that four factors incorporated in law are in the nature of guiding 'principles for the Rent Controller for determination of fair rent. The cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight. Nevertheless, common ground available in most of cases would be the prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality. It may thus, be made clear that existence of all ,the four conditions is not the invariable rule of law and presence of all factors in a case might lead to appreciation in determining rate of rent for the purpose of fair rent.
Absence of any of the factors would not, in any case, prejudice the case of the applicant before the Rent Controller."
15. Applying the above rule laid down by the honourable Supreme Court of Pakistan to the facts of the present case it is found that findings recorded by the two courts below go in line with the rule laid by the honourable Supreme Court of Pakistan in the above referred case. It is also clear from the record that al the factors of section 8 of the SRPO, which were attracted in the circumstances of the case have been taken note of by the Courts below.
16. Now taking up the second submission of Mr. Khalid Javed, the learned counsel for the petitioner that both the Courts below have passed their respective judgments in violation of well-settled principle of law laid down by the honourable Supreme Court of Pakistan. This point stood answered in view of findings recorded by me in the above paras, hence no further discussion on the issue is called for.
17. Lastly Mr. Khalid Javed, the learned counsel for petitioner contended that both the Courts below have granted increase in the rent from the date of filing of rent application instead of from the date of order or any date in between. This aspect of the matter has been dealt with by honourable Supreme Court of Pakistan in the above referred judgment (Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103), wherein the apex Court has observed that section 8 or the SRPO does not lay down any fetters on the powers of Rent Controller of the appellate authority to fix fair rent from a particular date. It would thus follow that very wide discretion has been conferred by law on the Rent Controller to fix faire rent from the date of application or from the date of order and in suitable cases even from a date in between the two events. The discretion vested in the Rent Controller or the appellate authority is, however, not arbitrary or whimsical. Discretion in fixing the fair rent as well as the period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust. The honourable Supreme Court of Pakistan further held that no inflexible rule of law can be laid down as to date or payment of fair rent because it would depend on the facts and circumstances of each case. The Rent Controller can fix fair rent from the date of application or from the date of order or from the date in between the said two dates keeping in view the circumstances of a particular case. The honourable Supreme Court of Pakistan in the case of Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan (2001 SCMR 1103), while dealing with the point in issue has held as under: "So far as the law is concerned, section 8 does not lay down any fetters on the power of the Rent Controller or the Appellate Authority to fix the fair rent from a particular date. It would thus, follow that very wide discretion has been conferred by law on the Rent Controller to fix the fair rent from the date of application or from the date of order and in suitable cases even from a date between the two events. The discretion vested in the Rent Controller as well as the Appellate Court is, however, not arbitrary or whimsical. Discretion in fixing the fair rent as well as the period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust. No inflexible rule of law could be laid down as to date or payment of fair rent because it would depend on the facts and circumstances of each case".
Honourable Supreme Court of Pakistan further held as under:-- "The question of law raised in these appeals has, however, been clinched by a judgment of this Court in H. Cooper v. State Life Insurance Corporation of Pakistan (1994 SCMR 2115) laying down that the Rent Controller can fix fair rent from the date of application or from the date of order or from the date in between the said two daces keeping in view the circumstances of a particular case".
18. Applying the above rule to the case in hand, it would be seen that since last so many decades very nominal monthly rent is being paid by the petitioner to the respondent No.3 total Rs.130 for the premises. Hence the learned Rent Controller has rightly fixed the fair rent from the date of filing of application under section 8 of the SRPO before the Rent Controller.
19. At the end Mr. Khalid Javed, the learned counsel for petitioner submitted that since the rent has been fixed from the date of filing of application, it is very difficult to pay the entire arrears of fair rent in one go. This aspect of the case has been set at rest by the honourable Supreme Court of Pakistan in the case reported as H. Cooper and others v. State Life Insurance Corporation of Pakistan (1994 SCMR 2115), wherein the honourable Supreme Court of Pakistan while dealing with the issue has held as under:-- "On the basis of evidence it is undoubtedly clear that the rent of the similar premises prior to the institution of application was Rs.800. The High Court, therefore, was right in fixing the fair rent from the date of application. The respondent could not move fresh application under section 9 of the Ordinance in view of delay in disposal of rent applications. As regards the difficulty of the appellants for deposit of rent for about 10 to 12 years, sufficient time may be granted to the tenant for deposit of arrears of rent. Even an order for payment in instalment can be passed to avoid the hardship, as a result of the act of the Court in consuming sufficient time in disposing of the rent applications. The appellants shall pay the arrears of rent in six (6) installments within the period of 18 months."
20. From the reading of the above rule laid down by the honourable Supreme Court of Pakistan, one thing is clear that an order for payment of instalments can be passed to avoid hardship as a result of the act of the Court in consuming sufficient time in disposing of the rent application. Applying the above rule and keeping in view the hardship and delay in disposal of the case, it is ordered that petitioner shall pay arrears of rent in six equal installments within period of 18 months.
21. Findings recorded by me in the above paras leave no room for dealing the arguments of learned counsel for respondent No.3, as points raised by him have been answered in the above paras.
22. With the above modification in payment of arrears of rent I find no merits in this petition, which is accordingly dismissed with no order as to costs.