1. ' Aggrieved by Order, dated 7th February, 1993 passed by VIIIth Senior Civil Judge, Karachi in Rent Case No,191 of 1988, the appellant landlords have filed this appeal. The appellants had initiated proceedings through application under section 8 of the Sindh Rented Premises Ordinance, 1979 hereinafter referred to as the Ordinance against the respondent for fixation of fair rent in respect of office premises bearing No,23 situated in third floor of the building known as Masood Chamber' on Plot No,W.O. 6/23 Madhumal Quarters. M.A. Jinnah Road, Karachi. The enhancement of rent has been sought from the present rate of Rs,79 per month to Rs,840 per month. The area of subject/premises is '10 x 12'. The enhancement of rent was sought on the grounds that the building in question is looked on one of the main arteries of the city being M.A. Jinnah Road in a predominantly commercial area: betterment tax at the rate of 5% has been levied under the Sindh Finance Act, 1975; K.M.C. Has increased water rates to 9%; the rent paid by the opponent is very low and is not compatible with the rate prevailing in the locality; and the order of construction and maintenance charges had increased by 15%.
2. ' The application was resisted by the opponent who urged in its written statement that the application was frivolous and the current rent was reasonable in comparison to rent of similar premises in the same locality. It was further urged in the written statement that the opponent had become tenant in the year 1979 and the rent was mutually agreed after considering all the taxes and cess payable to the authorities; it was further urged that the appellants had failed to provide the various amenities and the building in question was not being maintained properly. It was also urged that the water supply to the building had been disconnected due to non-payment of water charges by appellant and all the tenants including the respondent had jointly made arrangement for water through boring. The increase in rate of rent commanded by the appellants was opposed as exorbitant.
3. ' On behalf of the appellants, one Masood Ahmad appellant No,4 was examined whereas on behalf of the respondent one Muhammad Ashfaq was examined. The learned Rent Controller settled the following points for determination:---
(1) Whether the rent of Rs,79 per month paid by the opponent to the applicants is fair rent?
(2) What should the order be?
4. ' The learned Rent Controller after considering the documentary and oral evidence produced by the parties decided to allow increase in the rate of rent by 30% and fixed the same at Rs,103 per month. In determining fair rent of the subject premises at Rs,103 per month, the Rent Controller took into consideration size of the subject premises with reference to the rent paid by the other tenants of the same building. The grievance made by the respondent about lack of amenities and failure on the part of the appellants to maintain the building in question has also been considered by the learned Rent Controller. Yet another factor, which has been referred by the Rent Controller is the provisions contained in section 9 of the Ordinance, which provides a limit upon increase in rent.
5. ' I have heard the learned counsel for the parties. It was urged by the learned counsel for the appellants that the provision contained in section 9 of the Ordinance would not be attracted to the present case and the case of the appellants has to be determined by reference to the various factors mentioned in section 8 of the Ordinance. The learned counsel for the appellants further urged before me that the documentary evidence produced by the appellants through Exh. "A/3" to Exh. "A/9" shows that the rate of rent in respect of various premises in the same building was much higher when the amount of rent paid by the respondent. She further relied on Exh. "A/2" which is a notification, dated 29-11-1990 about increase in water and conservancy charges, issued by K.M.C., to substantiate her claim on the basis of imposition of additional/new taxes. On behalf of the respondent, it was contended that the various receipts filed as Exh.A/3" to Exh."A/9" did not provide relevant data to determine fair rent of the subject premises and in any event, the amount of rent shown in such receipts was much lesser then the rate claimed by the appellant.
6. ' The provisions of law which were pressed by the learned counsel in the matter are contained in sections 8 and 9 of the Sindh Rented Premises Ordinance, 1979 which are as follows:--- "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 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.
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 or 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."
7. ' During the arguments it was agreed by both the learned counsel that Exh."A/3" and Exh."A/6" only pertained to offices on the third floor of the building in question. As regards tenement No,30, carrying monthly rental of Rs, 167 shown in Exh."A/3", it was stated to consist of two rooms, each of which is claimed to be bigger in size than the subject premises. The other document namely Exh."A/6" pertaining to the same floor, where the subject premises is situated ex facie, pertains to two Tenements Nos.23 and 23-A and the amount of monthly rent is shown as Rs,248. The appellants, besides the above evidence, have not led any evidence to justify increase in rent. The various ingredients, for determination of fair rent under section 8 of the Ordinance are mutually exclusive and have to be satisfied for justifying an increase in the amount of rent. While every factor is distinct and independent of each other, a landlord seeking fixation of higher rent is obliged to produce positive evidence and establish reasons for increase as are relatable to such factors.
8. Such interpretation is clearly reflected from use of words, if any, in clauses (c) and (d) of subsection (1) of section 8 of the Ordinance. The Rent Controller, under section 8 of the Ordinance, is guided in determining the fair rent, inter alia, by the rate of rent prevalent for similar premises situated in similar situation in the same locality, the rise in the cost of constructions and repairs charges, imposition of new taxes after commencement of tenancy; and, annual value of the premises on which the property tax is levied. In the present case, however, the appellants have not led any specific evidence to substantiate their claim on the basis of clauses (b), (c) and (d) of subsection (1) of section 8 of the Ordinance. The only evidence which has come on record and which has rightly been treated by the Rent Controller as the guiding factor for determination of fair rent, is the rent received by the appellants in respect of Tenements Nos.30, 23 and 23-A of the same building. Such premises are admittedly located in the similar situation as are the subject- premises. With the increase of 30% allowed by the learned Rent Controller, the rent of the subject- premises comes almost at par with the aggregate amount of rent received in respect of the above referred premises which are identically located. The appellants, as rightly pointed out by the learned counsel for the respondent, have failed to produce any evidence to justify increase in the amount of rent on the basis of the three other factors mentioned in section 8 of the Ordinance.
9. While it is true that the factors contained in section 8 of the Ordinance are not exhaustive, the appellants have failed to produce any material to substantiate their claim on any other ground either.
10. As to the applicability of section 9 of the Ordinance, suffice to observe that the limit upon increase in the rate of rent, prescribed by section 9 of the Ordinance cannot be attracted to a case where determination of fair rent is undertaken for the first time. The pre-condition for applicability of section 9 of the Ordinance like section 8(2) thereof is that the fair rent of the premises, should have been fixed earlier. In the present case, admittedly, fixation of fair rent was sought for the first time, and therefore, the limits prescribed by section 9 of the Ordinance would not be applicable. I am supported in my said view by judgment in the case of Muhammad Jameel v. Muhammad Rahim, reported in 1987 CLC 176.
11. ' The learned counsel for the appellant cited the following cases in support of her contentions:
(i) Amanullah Khan v. Mehar Elahi, etc. Reported in 1992 CLC 739.
(ii) Abdul Ghaffar v. Noor Yehan Malik, reported in 1987 CLC 2182.
12. ' The first two reports cited by the learned counsel for the appellant, pertain to the same case which was possible cited separately due to oversight. In that case, a learned Single Judge of this Court (Late Qaisar Ahmad Hamidi, J.) after consideration of the provisions contained in section 8 of the Ordinance, held that the above section postulates determination of fair rent by Rent Controller, upon consideration of all the four factors independently. In the last mentioned case, another learned Judge of this Court (Muhammad Mazhar Ali, J.), while repelling the contention of appellant therein, held that clause (a) of subsection (1) of section 8 permits the Rent Controller to take into consideration the rate of rent in respect of premises situated in the same building.
13. ' The learned counsel for the appellant was not able to show any other factor to warrant increase in the amount of rent paid by the respondent. The learned counsel for the respondent, however, made a statement at Bar that his client is ready and willing to pay the rent fixed by the Rent Controller. Such offer is quite fair, in the circumstances of the case. Consequently, the present appeal fails and the order passed by the Rent Controller is maintained. The parties to bear their own costs.