' RANA BHAGWAN DAS, J.---These appeals with the leave of the Court arise out of common judgment dated 11-3-1998 passed by learned Single Judge of the High Court of Sindh directed against identical orders dated 5-8-1997 passed by learned Rent Controller, Karachi under section 8 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). By the impugned judgment learned High Court dismissed two First Rent Appeals preferred by the appellants whereas two First Rent Appeals preferred by the respondents were allowed to the extent that the rate of fair rent was modified from Rs,7.00 per sq.Ft. Per month to Rs,8.57 per sq.Ft. Per month.
2. Appellants are the tenants of the respondents in respect of office premises in Habib Bank Square, situated' on M.A. Jinnah Road, Karachi. They were paying rent at the rate of Rs,0.50 per sq.Ft. Per month to the respondents since 1955. In December, 1991, respondents filed separate applications for determination of fair rent under section 8 of the Ordinance. After evidence, learned Rent Controller determined the fair rent at Rs,7.00 per sq.Ft. Per month. Both the parties being aggrieved filed First Rent Appeals in the .High Court, which were disposed of as stated hereinabove. Through present appeals appellants have questioned the vires of the High Court's judgment.
3. In order to comprehend the controversy, in its true perspective, between the parties it would be appropriate to reproduce the provisions of section 8 of the Ordinance which read 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
4. Mr. Muneeb Ahmed Khan, learned counsel for the appellants assailed the correctness of the view taken by the learned Rent Controller in directing the fixation of fair rent with effect from the date of rent application which was decided after the lapse of more than 5-1/2 years whereas in Rent Case No,1090 of 1993 decided by the same Rent Controller on 16th January, 1997 he had directed the payment of fair rent with effect from the following month. Learned counsel vehemently contended that discriminatory approach of the Rent Controller in burdening the appellants with the huge arrears of rent was highly unreasonable and open to exception deserving serious consideration of this Court. When asked whether this ground was taken before the High Court, learned counsel in the first instance responded in affirmative but on scrutiny of the memorandum of appeal it turned out that no such ground was taken before the High Court. In law ordinarily, an appellant is not entitled to raise a ground of appeal on which leave was not granted or which was not raised before the High Court but in exceptional cases where a pure question of law is raised or non- consideration of a material issue is likely to cause serious miscarriage of justice and prejudice to any of the parties then the Court would be within its rights to allow the same.
5. Learned counsel for the respondents stated at the Bar that appellants are the tenants of the respondents in the demised premises since 1955 and there has been no increase of rent in the past. It may also be pointed out that the life insurance business was nationalised by virtue of Life Insurance (Nationalization) Order, 1972 (Order 20 of 1972) whereafter the respondent-Corporation was incorporated as a body corporate. Apart from the considerations stipulated in section 8 of the Ordinance it is a matter of common knowledge that there has been enormous inflation in the cost of living, cost of construction, maintenance, renovation and upkeep of the urban properties. 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 of payment of fair rent because it would depend on the facts and circumstances of each case.
6. In Rent Case No,1090 of 1993 cited by learned counsel for the appellant it appears that. The State Life Insurance Corporation of Pakistan had rented out the premises to the tenant with effect from 1- 8-1988 at the rate of Rs,3.00 per sq.Ft. Per month and the rate of rent had already been increased by 30% before approaching the Rent Controller for fixation of fair rent. It was in the peculiar circumstances of the case that presumably Rent Controller thought it just and equitable to direct payment of the fair rent with effect from the next month. 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 dates keeping in view the circumstances of a particular case. It was affirmed that if an appeal against the order of fixation of fair rent is preferred, the appellate Court would be competent to fix a date for payment of fair rent. In the cited case, Khyber Insurance Company Limited v. Pakistan National Shipping Corporation (PLD 1994 SC 725), Miran Devi v. Birbal Dass (AIR 1977 SC 219) and Raja Ram v.
Sham Lal (AIR 1954 Punjab 208) cases were also referred.
7. It may be pertinent to point out that in the case of Khyber Insurance Company Limited (supra), Rent Controller fixed the fair rent and directed its payment with effect from the first of the next month against which, an appeal was preferred by the landlord. In appeal before the Sindh High Court by consent of the parties' counsel, rate of fair rent was reduced from Rs,5.00 per sq.Ft. To Rs,3.50 per sq.Ft. And payment thereof was made operative from the date of filing application for fixation of fair rent. Leave to appeal was granted to consider the question whether learned Judge in Chambers was justified in substituting the operative date of the above order of fixation of fair rent.
In the circumstances, it was laid down by this Court that as section 8 of the Ordinance did not specify the date from which fair rent would be payable by a tenant, it was open to the Rent.
Controller to order payment of fair rent from such date as ordered by him as it did not violate any provision of the law nor it infringed any equitable principles. We are thus convinced that no exception can be taken to the findings arrived at by the Rent Controller and affirmed by the High Court in appeal as to the date of payment of fair rent.
8. In the instant case a number of lease deeds executed by the respondent-Corporation in favour of various tenants were produced and exhibited before the Rent Controller but the learned High Court took into consideration lease deed Exh.A/19 executed between the parties on 10th October, 1992 and was effective from 6th April, 1992 which premises were let out at Rs,8.57 per sq.Ft. Per month while other lease deeds produced and exhibited were not considered for fixation of fair rent presumably for the reason that either the premises were situated in different buildings in some other locality or were situated not on the same floor of the same building. In some of the ase deeds rate of rent was fixed at Rs,10.00 per sq.Ft. While in others, premises were leased out even at the rate of Rs,12.00 and Rs,16.00 per sq.Ft. But the High Court advisedly did not rely upon such deeds in view of the guiding principles stipulated in law for revising the rate of rent as fair rent.
9. Learned counsel for the appellants made a grievance of the circumstance that M/s. Adamjee Insurance Company Limited being a larger company with huge equities could afford to pay higher rate of rent as demanded by respondents, while the appellants could not afford to pay the revised rate of rent. We are not inclined to agree with the learned counsel as this factor can hardly be treated as relevant consideration for fixation of fair rent. In case the rate of rent fixed by the Courts below was not acceptable to the appellants they were at liberty to abandon the tenancy and to secure some other premises more suitable for their requirements. Learned counsel submitted that after the decision by the High Court appellants have surrendered the premises involved in Appeals Nos.1278 of 1998 and 1279 of 1998 and 1655 sq.Ft. Area in Appeals Nos.1280 and 1281 of 1998 in favour of the respondents, as it was not possible for them to continue with the tenancy at the said rate of rent in the given circumstances.
' Be that as it may, we are not persuaded to upset the view taken by the learned Judge in Chambers and the Rent Controller for the sole reason that the appellants are unable to continue with the tenancy because of fixation of fair rent whereby rate of rent has been revised considering that if argument advanced in support of plea is accepted, very object behind the statutory provisions would be frustrated.
11. Having dealt with aforesaid contentions of the appellant's learned counsel it may be pertinent to observe that the Rent Controller as well as learned Single Judge in the High Court having examined, analysed and scrutinized the evidence adduced by the parties arrived at a definite finding that this was a fit case for fixation of fair rent which was accordingly determined as observed.
12. During the course of arguments, learned counsel has been unable to impugn the concurrent findings of fact on the question of fixation of fair rent except that the rent so fixed was seventeen times higher than the rate of rent which was being paid by the appellants. It may not be out of place to state here that in case value of property has appreciated in a particular locality, so also there has been increase in the cost of construction, maintenance, repairs, renovation or increase in local taxes or Property Tax etc. By the Legislature, the rate of rent could be revised which could be at higher percentage than the normal increase of 10% per annum. Consequently, fixation of fair rent cannot be said to be unfair or inequitable. In C.P.L.A. No,414-K of 1989, decided on 15-1-1990, Muhammad Afzal Zullah, C.J. (as his lordship then was), observed that it was not merely lesser rents in locality which were to be kept in mind but also those being paid at higher rate would have also to be taken into account. It is settled proposition of law that this Court would not generally interfere with the. Concurrent findings of fact unless it is shown that findings are recorded by misappreciation of evidence and/or misconstruction of law and against the settled principles for appraisal of evidence. Obviously, appellants have not been able to bring their case within the exception clause with the result that we are not inclined to interfere with the findings Of fact and the discretion exercised by the Rent Controller and the High Court.
13. On his part Mian Mushtaq Ahmed, Advocate Supreme Court, representing the respondents while supporting the impugned judgment earnestly urged that in this case leave was granted by this Court also to consider the contention that the learned Rent Controller as well as the learned Judge in Chambers erred in not taking into consideration all the clauses of subsection (1) of section 8 of the Ordinance while determining the fair rent. A reference was made to the leave granting order passed in Mst. Muneera Kaleemuddin v. Muhammad Mahmood Alam (1991 SCMR 1028) but the learned counsel pointed out that there was no decision on merits in appeal as the parties had compromised. He earnestly urged that as there is no authoritative decision of this Court on this issue, this question might be resolved once for all in this case.
14. In order to satisfy ourselves about the final decision in the case of Mst. Muneera Kaleemuddin we have summoned the file of Civil Appeal No,818-K of 1990. A perusal of the judgment dated 6-6- 1991 contradicts the statement of the learned counsel as the above appeal was decided on merits and while setting aside the judgments of the Courts below, case was remanded to the learned Rent Controller with the following observations: ' "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."
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 that 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, M/s. Eastern Automobiles (Pvt.) Ltd., Karachi v.
Pakistan National Shipping Corporation, Karachi (PLD 1993 Karachi 9) and Mst. Aqila 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.
17. For the aforesaid facts and reasons we find no merit in these appeals which are accordingly dismissed with no order as to costs.