' SHAHNAWAZ TARIQ, J.---Through the captioned Constitution petition, the petitioner Messrs Muslim Commercial Bank has invoked the Constitutional jurisdiction of this Court under Article 199 of Islamic Republic of Pakistan 1973, and agitated the Judgment dated 01.03.2011, passed by the learned V Additional District Judge, Karachi South, in FRA No. 218/2009, whereby the petitioner has sought following reliefs:- i. Set aside the judgment passed by the learned V-Additional District and Sessions Judge, South Karachi, dated 01.03.2011 in FRA No.218/ 2009, being illegal and void. ii. Declare that the order dated 16.07.2009, passed by the learned VI Rent Controller, South Karachi, in Rent Case No. 768/ 2007, is quite lawful and proper to the extent of enhancement of rent but from the date of judgment viz 16.07.2009. iii. Cost of this petition may please be awarded. Iv. iv. Any order or better relief or reliefs, which this Hon'ble Court may deed fit and proper, also be awarded.
2. The relevant facts spelt out from the instant petition are that the petitioner is tenant of respondent No.3 with regard to the portion of property admeasuring 1300 sq. Ft located on the ground floor of the building, constructed on plot No.91, survey sheet No.SR-9, admeasuring 277 sq.Yds, Kauji Tulsidas Street, near Pakistan Chowk, Zia-ud-Din Ahmed Road, Karachi. The respondent No.3 let out the demised premises to the petitioner vide tenancy agreement dated 26.08.2005, which commenced on 01.09.2005, and expired on 25.08.2008, at the monthly rent of Rs.14,365/-. The respondent No.3 sent a letter to the petitioner for entering into a fresh tenancy agreement and also demanded rent at the rate of Rs.75,000/- per month which was declined by the petitioner. The respondent No.3 filed rent application under section 8 of the Sindh Rented Premises Ordinance, 1979 (herein after referred as ,SRPO, 1979) against the petitioner. The Rent Controller after concluding the rent proceedings enhanced the rent vide judgment dated 16.07.2009, at the rate of 10% per annum from 26.08.2005, whereas the rent application was filed on 19.05.2007. The respondent No.3 challenged the said judgment vide FRA No. 218/2009, which was decided by the Court of learned V Additional District Judge, Karachi South, and enhanced the rent at the rate of Rs.65,000/- per month from the date of institution of rent application i.e. 19.05.2007.
3. Learned counsel for the petitioner contended that learned appellate Court has failed to consider the law and evidence adduced by the parties; while passing the impugned judgment which is arbitrary and illegal. He further contended that as per section 9 of SRPO, 1979, it is clear that the enhancement in rent shall not exceed 10% from the existing rent, whereas the appellate Court has enhanced the rent in deviation and derogation from the established law. He also contended that the order passed by the appellate Court for enhancement of rent of more than 400% is without jurisdiction. He submitted that there are conflicting findings of the Courts below and the learned appellate Court has not considered the material facts and circumstances pertaining to the demised premises. He further submitted that the said building was either constructed in 1950 or 1960 and there is no clause in expired tenancy agreement that the rent in forth coming tenancy agreement would be enhanced up to Rs.65,000/- or 75,000/- per month. He vehemently contended that respondent No.3 has failed to produce any witness or documentary evidence in support of her case, as such the enhancement of the rent by the appellate Court is void and liable to be set-aside. He relied upon 2001 SCMR 1161 and PLD 2007 Karachi 485.
4. Learned counsel for the respondent No.3 submitted that she is a widow and earning her livelihood through rent being paid by the petitioner. He further submitted that other banks are paying the rent at the rate more than Rs.65,000/- per month for the rented premises situated in same locality of Pakistan Chowk and despite requests made by the respondent No.3, no written certificate or copy of the rent receipts being paid by the banks were given to the respondent No.3, therefore, such documents could not be produced before the learned trial Court. He contended that respondent No.3 had moved application dated 14.09.2007, before the Rent Controller under section 20(1)(a) of SRPO, 1979, to issue notices to the banks of locality which was allowed and Managers of Standard Chartered Bank and ABN AMRO Bank were directed to appear in person or depute their representatives to give evidence regarding monthly rent being paid to their respective landlords. He further contended that representative of ABN AMR() Bank had deposed that total covered area of ground plus first floor admeasuring 2937 sq. Ft. Is under tenancy of Messrs ABN AMRO, Paper Market Branch, Shahrah-e-Liaquat for which bank is paying Rs.3,26,517/- per month with enhancement of 8% each year w.e.f.
04.07.2003. The representative of Standard Chartered Bank had deposed that his bank has been paying rent for Paper Market Branch at the rate of Rs.1,68,000/- per month for the covered area of 1200 sq. Ft.
5. Learned counsel for the respondent No.3 further contended that the tenancy commenced on 01.09.2003 had expired on 31.08.2006, and she demanded enhanced rent for Rs.75,000/- per month but the petitioner Bank offered for the enhanced rent for Rs.30,000/- per month which was not agreed being less from the rent of other banks situated in the same adjoining locality. He submitted that the entire surrounding area of Pakistan Chowk is a commercial area irrespective of main roads or connected streets, and prices as well as rents of shops are very high. He also submitted that fair rent of the demised premises was never fixed by any Court, therefore, the provisions of section 9 of SRPO, 1979, are not attracted in present case. He contended that the rent demanded by the respondent No.3 is justified and the impugned judgment passed by the appellate Court is just and proper, therefore, the petition is liable to be dismissed.
6. Perusal of the record and consideration of the arguments advanced by the parties emanated that petitioner bank is tenant of the respondent No.3 vide tenancy agreement for the period of 3 days (sic) which commenced w.e.f.
26.04.2005 and expired on 25.08.2008, regarding the portion of demised premises admeasuring 1300 sq. Ft against Rs.14365/- per month. On the expiry of the tenancy agreement, the respondent No.3 sent a notice for the renewal of the tenancy agreement with the enhanced rent of Rs .75,000/- per month which was declined by the petitioner but agreed to increase the rent for Rs.30,000/- per month which was not acceded by the respondent No.3.
7. For the convenience, sections 8 and 9 of SRPO, 1979, are reproduced as under:-- ' Section 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 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.
Section 9: Limit of fair rent.---(1) 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 of commencement of this Ordinance whichever is later.
(2) The increase in rent shall not, in any case, exceed ten per cent per annum on the existing rent.
8. From the bare perusal of the above referred sections, it is worthwhile to mention that sections 8 and 9 of SRPO, 1979, are self-determining provisions having their independent domain. Section 8 provides the parameters for the enhancement of rent by the Rent Controller to fix the fair rent of a tenement considering the four conditions envisaged in said section minutely and judiciously and if the landlord succeeds to establish any one of the four conditions referred supra, he shall fix fair rent with care and caution. There is no restriction or limit which may minimize the authority of the Rent Controller to fix the rent of a demised premises. While section 9 of SRPO, 1979, imposes certain restrictions upon Rent Controller that if fair rent of the demised premises had already been fixed then the rent would not be enhanced for the next three years. The bar stipulated under sub clause 2 regarding enhancement of rent up to 10 % per annum only would be applicable if the fair rent was already fixed. Therefore, the sub clause 2 of section 9 has no nexus with the section of SRPO, 1979.
Likewise, while fixing the fair rent under the provisions of SRPO, 1979, the Rent Controller, and the Appellate Court have ample powers to assess all the relevant circumstances while fixing the fair rent, and the scope of their such discretion could not be constrained under 9(2) of SRP0,1979.
9. In present case the respondent No.3 never approached the Rent Controller for the enhancement of rent nor any fair rent was fixed after the inception of the tenancy between the parties. Indeed the respondent No.3 did not produce any documentary evidence to strengthen her claim but she filed her affidavit in evidence and categorically deposed that she made her sincere efforts to produce certificate of rent or rent receipts, nevertheless the concerned banks declined her requests.
Thereafter on her application, the learned Rent Controller called the representatives along with relevant documents of ABN AMR() Bank and Standard Chartered bank, Paper Market Branches to ascertain the quantum of monthly rent being paid to their respective landlords. As per evidence of the representative of ABN AMR0 Bank, said bank is paying monthly rent for Rs .3,50,000/- per month with the enhancement of 8% per annum for the covered area of 2937 sq. Ft. While the representative of the Standard Chartered Bank deposed that said bank is paying Rs.1,68,000/- per month for the cover area of 1200 sq. Ft.
10. The petitioner has vehemently denied the claim of the respondent No.3 for the proposed enhanced rent to be unjust and unfair on the ground of failure to adduce the adequate documentary evidence by her to establish the plea of enhancement of rent. But undoubtedly, the petitioner bank itself had offered rent of Rs.30,000/- per month which prima facie established that the present quantum of rent is less and not in accordance with the prevailing rent of the locality, therefore, it can be safely concluded that the plea of the petitioner is self contradictory.
11. Admittedly, the demised premises is situated in a thickly populated area which is famous for business and commercial activities. Undeniably, the inflation in cost of construction and hike in cost of land have also caused invariable increase, in rental value of the premises of the locality of Pakistan Chowk. The respondent No.3 has agitated her D claim on oath and the representatives of ABN AMR Bank and Standard Chartered Bank had produced their documentary evidence and were properly cross examined but the counsel for the petitioner had failed to disprove their evidence during the course of cross examination and same is available on the record which has wholly established the claim of the respondent No.3.
12. The appellate Court has properly considered the evidence led by the parties and adjudged all the relevant documents produced by them and modified the judgment passed by the Rent Controller and directed E the petitioner to pay the enhanced rent at the rate of Rs .65000/- per month from the date of institution of the rent application.
13. Considering the facts and circumstances, the petitioner has failed to point out any illegality or irregularity committed by the learned appellate Court while passing the impugned judgment dated 01.03.2011, which does not call for any interference, hence maintained. Consequently, the instant Constitution petition having no legal substance stands dismissed.