' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment, dated 13-10- 1993 passed by a learned Single Judge of the High Court of Sindh in F.RA. No,2 of 1991 filed by the appellant against the fixation of fair rent at the rate of Rs,5 per sq. Ft. In place of about 37 paisas per sq. Ft. By the learned Bird Senior Civil Judge/Rent Controller, Karachi (South), in Rent Case No,195 of 1987 by his order, dated 26-11-1990 under section 8 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, allowing the same in the following terms:--- "5. Mr. Mohsin Tayebally offers Rs,3.50 per sq. Ft. Mr. Rehmat Ellahi accepted the offer. By consent of the parties I determine the rent at the rate of Rs,3.50 per sq. Ft. I think in the interest of justice the rate of rent be applicable from the date of the application for fixation of rent."
2. Leave to appeal was granted to consider the question, whether the learned Judge in Chambers was justified in substituting the operative date of the above order of fixation of fair rent from December, 1990 to that the date of application, though no appeal was filed by the respondent against the order of the learned Rent Controller.
3. The brief facts are that the appellants are the tenants in a building known as Muhammadi House, now vesting in the respondents, aggregate area being 4,962 sq. Ft. The aggregate monthly rent of the above area was Rs,1,882.74 which according to the appellants comes to about 37 paisas per sq.
Ft. It appears that in February, 1987, the respondents filed the above rent case under section 8 of the Ordinance for the fixation of fair rent. The above rent case was resisted by the appellants, but the learned Rent Controller, after framing three Issues, recording evidence and hearing of the parties, allowed the same as under:--- "Keeping in view all the above factors reported in the provisions of section 8(1) of the Sindh Rented Premises Ordinance, 1979, I fix fair rent at the rate of Rs,5.00 per sq. Ft. The opponents' rate of rent has been determined and they have to pay the rent at the rate of Rs,5.00 per sq. Ft. From December, 1990 onwards."
4. The appellants, being aggrieved by the above order of the learned Rent Controller, filed the aforesaid F.R.A., which was disposed of in the above terms. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.
5. In support of the above appeal, Mr. Mohsin Tayebaly, learned Advocate Supreme Court appearing for the appellants, has vehemently urged that since the respondents had not filed any appeal against the above order of the Rent Controller dated 26-11-1990, whereby he granted the respondents' above rent case for fixation of fair rent and fixed terminus a quo for the payment of the fair rent from December, 1990, and not from the date of the above rent case, the learned Judge in Chambers was not justified in substituting December, 1990, by the date of application. His further submission was that even if it is to be held that the provisions of Order XLI, Rules 22 and 33, C.P.C.
Were applicable, the learned Judge in Chambers could not have substituted the above terminus a quo for the payment of the fair rent as it involved about Rs,8,00,000 extra payment by the appellants.
' On the other hand, Mr. Rehmat Elahi, learned Advocate Supreme Court appearing for the respondents, has contended that once the matter was before the learned Judge. In Chambers as the appellate authority under section 21 of the Ordinance, he was competent to substitute the above portion of the order by virtue of the aforesaid provision of the Ordinance and/or because of the provision of Rule 33 of Order XLI, C.P.C.
6. Before taking up the above contentions it may be pertinent to reproduce section 8 of the Ordinance, which empowers the Rent Controller to fix the fair rent, and which reads as under:--- "8.--(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.
(2) Where any addition to, or improvement in, any premises has been made or any tax or other public charge has been levied, enhanced, 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."
A perusal of the above-quoted section indicates that it empowers the Rent Controller to determine fair rent of the premises after taking into consideration the factors mentioned in sub-clauses (a), (b), (c) and (d) of subsection (1). It further shows that by virtue of subsection (2), the Rent Controller can also take into consideration the matters referred to therein while fixing fair rent.
However, it may be pointed out that the above-quoted section does not provide as to the date from which the tenant would be liable to pay fair rent determined by the Rent Controller. In other words, it does not provide that the fair rent will be payable from the date of application or from the date of order determining the fair rent. In this view of the matter, the Rent Controller is competent to order the payment of fair rent from the date of order.
7. It may be observed that the respondents did not file any appeal against the above order of the Rent Controller providing that the fair rent would be payable by the appellants from December, 1990. The appeal was filed by the appellants because, according to them, the increase of the rent on account of fixation of fair rent by the Rent Controller was 1300 per cent.
8. Having dealt with the above provision of the Ordinance, we may now revert to the above submissions of the learned counsel for the parties. In this regard, it may be pertinent to observe that section 20 of the Ordinance confers the power of Civil Court on the Rent Controller and the appellate authority for the matters mentioned therein. The above section 20 reads as follows:--- "20.--(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely:---
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) compelling production or discovery of documents; (0) inspecting the site; and (d) issuing commission for examination of witnesses or documents."
The above-quoted section indicates that subject to the provisions of the Ordinance, the Rent Controller and the appellate authority have been conferred the powers of a Civil Court under the Code of Civil Procedure for the purpose of items specified in above sub-clauses (a), (b), (c) and (d). In other words, Code of Civil Procedure as a whole has not been made applicable. In this view of the matter, a party cannot press into service the provision of Rule 33 of Order XLT, C.P.C. Which provides as under:--- "33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
' Illustration ' A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."
A plain reading of the above-quoted provision of C.P.C. Shows that an Appellate Court under the C.P.C. Has been empowered to pass a decree and make any order which ought to have been passed or Rade and to pass or make such further or other decree or order as the case may require and the power contained therein is exercisable notwithstanding the fact that the appeal is as to part only of the decree. It further shows that the above power may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. It may further be noticed that the proviso prohibits an Appellate Court from passing an order under section 35-A i,e, granting of compensatory costs in the matters referred to therein. Whereas the illustration explains the scope of the above provision by giving an example that the Appellate Court upon appeal filed by a codefendant can pass a decree against the other co-defendant against whom the trial Court had not passed any decree.
9. There is no doubt that the above provision empowers an Appellate Court to pass an order in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. Since we have held that C.P.C. As a whole is not applicable, the above provisions cannot be invoked by the learned counsel for the respondents in support of the impugned judgment. There. Is no doubt that in some of the cases this Court has held that though C.P.C. Is not applicable to proceedings under the Ordinance but the Court in the interest of justice may apply any of the principles enunciated under the various provisions of the C.P.C. The above principle, which is an exception to the rule that C.P.C. As a whole, is not attracted to the present case. As pointed out hereinabove that section 8, does not specify as to the date from which fair rent is to become payable by a tenant upon the determination of the same by the Rent Controller and, therefore, it was open to the Rent Controller to order that the fair rent would be payable from December, 1990 as the order was passed on 26-11-1990. The above order does not violate any provision of the law nor it infringes any equitable principle which may warrant the application of the provision of Rule 33 of Order XLI, C.P.C. On the basis of the above exception.
10. Mr. Mohsin Tayebaly, learned Advocate Supreme Court for the appellants, has submitted that even if this Court were to hold that the above provision of Rule 33 of Order XLI, C.P.C. Is applicable, the learned Judge in Chambers could not have substituted December, 1990, by the date of application as the date for the payment of fair rent, as it involved payment of about Rs,8,00,000, more than what the appellants were liable to pay under the order of the learned Rent Controller. In furtherance of his above submission, he has referred to the case of Province of West Pakistan through the Vice-Chairman, Pakistan Western Railway, Lahore v. Syed Moharram Ali and 93 others PLD 1970 SC 292, the case of Muhammad Khaleef Shirazi and Sons v. Les Tanneries Lyonnaises and another AIR 1926 PC 34 and the case of Anath Nath Biswas and others v. Dwarka Nath Chakravarti and others AIR 1939 PC 86.
' The above cases do not touch upon the controversy in issue as the facts of the same are distinguishable.
11. Whereas Mr. Rehmat Elahi, learned counsel for the respondents, has referred to the case of the Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590, the case of Messrs S.M. Yusuf & Bros. v. Mirza Muhammad Mehdi Pooya and another PLD 1965 SC 15, the case of Ilam Din and others v. Desondhi of Lahore AIR 1935 Lah. 378 and the case of Raja Ram v. Sham Lal and another AIR 1954 Pb.
208.
' The above first three cases reiterate the principle enunciated in the above-quoted Rule 33 of Order XLI, C.P.C. It has been inter alia held that the above provision is of widest amplitude to enable the appellate Court to pass decrees according to the justice of the case and that the language used in affirmative is further strengthened by non obstante clauses giving the clear impression that the intention is beneficial so that no legal right should be denied which the appellate Court should consider should be allowed within the framework of the suit.
' Whereas in the last case, a Division Bench of the East Punjab High Court, while construing section of the East Punjab Urban Rent Restriction Act, 1949, which pertains to the fixation of standard rent, has observed as follows:--- "(5) Under the Punjab Act, too, the Rent Controller has the power to fix the date from which his order shall take effect but this date cannot be antecedent to the filing of the application. He can, however, fix subsequent date. He can even fix two separate dates as may well happen in a case where certain improvements or additions to the premises have been made by the landlord. But it seems to me that if there is no direction fixing the date from which the standard rent shall take effect the standard rent becomes payable from the date of the application because that is the date on which the landlord or the tenant comes to Court and prays that his rights be determined. It is quite clear that the order passed by the Rent Controller is in the nature of a declaratory decree. It cannot be executed by itself and the landlord must file a separate suit for the recovery of the standard rent due to him."
12. The above portion of the judgment does not touch upon the controversy in issue. On the contrary, it impliedly supports the conclusion that the learned Rent Controller in the instant case ,could fix December, 1990, as the terminus a quo, from which the fair 'rent was to be paid.
13. This leads us to the last limb of the submission of Mr. Rehmat Elahi that even under section 21 of the Ordinance, the learned Judge in Chambers acting as the appellate authority, was competent to substitute December, 1990, by the date of application.
14. The above contention is untenable. It is true that under subsection (3) of section 21 of the Ordinance, the appellate authority after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, may make an appropriate order, which shall be final. In our view, the above power does not entitle the appellate Court to pass an order in favour of a respondent who had not filed an appeal against the Rent Controller's order under appeal to give him benefit of about Rs,8,00,000. The power under the above provision of subsection (3) of section 21 of the Ordinance is to be exercised reasonably, justly and fairly within the framework of the controversy which has been brought before the appellate authority and not in respect of a matter against which the respondent had no grievance and because of that had not filed any appeal.
15. The upshot of the above discussion is that the above appeal is allowed to the extent that the portion of the judgment providing payment of fair rent from the date of application is set aside and December, 1990, is restored as contained in the order of the learned Rent Controller. However, there will be no order as to costs.