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Civil Second Appeal No. 93 of 1962, decided on 27th November 1964.

S. 12‑Words "necessary repairs other than structural altera tions"‑Word "repairs" indicates work to be done to restore premises to its previous condition‑Tenant choosing to occupy premises of poor quality or in bad condition‑Cannot claim to have improvements made so that he may live in better premises than those bargained for‑Determination of "necessary repair" Duty of Rent Controller‑Power cannot be delegated by him to Local Authority.

Jamaluddin for Appellant.

Mansoor Arfin for Respondent.

Date of hearing : 27th November 1964.

This Second Appeal is directed against the order of the learned District Judge, Hyderabad, dated the 23rd July of 1962 by which he has set aside the order of the Rent Controller and accepted the First Appeal of the landlord, who is the respondent in these proceedings.

2. Briefly, the facts are that the present appellant, is the tenant of the respondent and is in occupation of the premises which according to the appellant were in a ruinous condition and likely to collapse at any time. The appellant, therefore, gave notice to this effect to the respondent. The notice is Exh. 19 and is dated the 2nd July of 1960. Thereafter, the appellant made an application under section 12 of the West Pakistan Urban Rent Restriction Ordinance of 1959 to compel the respondent to carry out repairs to the premises. Section 12 is as follows:‑--

"If a landlord fails to make the necessary repairs other than structural alterations, to a building, it shall be competent for the Controller to direct, on application by the tenant and after such inquiry as the Controller may think necessary, that such repairs may be made by the tenant, and that the costs thereof may be deducted from the rent which is payable by him."

The estimated cost of the repairs, according to the application of the tenant, was about Rs. 5,000 but after the premises were inspected, according to counsel, that cost was found to be Rs. 9,000. The application did not contain the details of the repairs, which, according to the tenant, were necessary, but the premises were inspected by the Rent Controller as well as by the First Appellate Authority. The description of the premises given by the learned District Judge in his inspection note is as follows:‑

......I feel, considering the shocking condition of the building from several possible points of view namely that the condition of, the walls which are cracked at several places, that most of the walls in the building have no lime patch on them, the brick masonry below being visible, that the roof specially in the Hotel premises has a tin ceiling, that the stair case leading to the first floor is almost in a broken down condition, that the doors and windows possibly inserted several years ago are without panes and the general condition of the building is bad that these repairs are necessary and that these must be immediately carried out."

3. The above condition of the premises must have been noted by the Rent Controller when he inspected them, but his order does not contain the details of the repairs that were to be made. He accepted the application of the present appellant and ordered as follows :‑

" I have therefore no other option but to direct the applicant to carry on the necessary repairs and the costs thereof may be deducted from the rent which is payable by him. The account of expenses incurred by the applicant shall be submitted to the local authority concerned which shall after due verification, clarify the costs of the repairs and the applicant may thereon deduct the amount so certified, from the rent payable by him."

The above order indicates that there was nobody to decide as to what were the necessary repairs which were to be carried out and that this question was left open with a provision only that the costs of such repairs be ascertained by the Local Authority concerned. The Rent Controller had no power to issue such a direction to the Local Authority anti the power that he had, namely, to determine as to what repairs were necessary, was not exercised by him.

4. The landlord, who is the respondent in these proceedings, went in First Appeal against that order which was accepted, as pointed out above, by the learned District Judge, Hyderabad. The following observations made by the learned District Judge in his order are noteworthy:--

"The pleadings in the application filed by the respondent are vague inasmuch as they do not give any specification regarding necessary repairs but only claim a sum of Rs. 4091‑5‑3 for the purpose. It was only in course of the evidence that the point was developed."

Further:

"The law as contained in the Ordinance, particularly under section 12, also does not warrant the view that the landlord can be compelled by the tenant to make the premises according to his desire . . .

Undoubtedly, the landlord must continue to maintain it as it was at the time of the contract, namely to keep it habitable and safe but he cannot be compelled to improve it according to the whims and desires of the tenant and against the will of the landlord."

The learned Judge has pointed out that if a tenant chose to occupy premises the condition of which could not be tolerated by him, then the choice for him was either to stay on in it or to vacate them.

5. Counsel for the appellant, that is, the tenant, has urged in this Court against the order of the learned District Judge that the premises were inspected by the learned Judge in December 1961, in which he had observed that repairs were necessary and that they must be immediately carried out, but the final order, from which the above extracts have been reproduced, was made in July 1962, with the result that, according to counsel, the impressions were obliterated from his mind and he proceeded to make an order of a different nature from that of the inspection note. But this criticism is not correct, because the time spent upto the final order was not taken for writing the order. On the contrary the final hearing had yet to take place after the inspection. At the time of making the final order the learned District Judge had examined the situation more fully which he had not done at the time of making the inspection as has been pointed out by him in the Inspection Note in the following words:

"I have just inspected the premises and whilst this is not a final order which will be passed after hearing counsel on either side specially Mr. Hassan Ahmad Shah who has certain legal pleas to make, I feel . . . . . .".

6. The appreciation of the legal pleas that the learned District Judge has set out in his order is, to my mind, correct. Counsel for the appellant has emphasized in these proceedings that the words "the necessary repairs other than structural alterations" which occur in section 12 of the Ordinance indicate that excepting for structural repairs, any other alteration can be ordered by the Rent Controller under the section. This view of the provision, to my mind, is erroneous. The structural alterations are excluded even if they be considered to be necessary, and the scope of the demand of the tenant is further limited by the words "necessary repairs". The word "repairs" indicates that work which is to be done to restore the previous condition of the premises. Further, the word "necessary" indicates that such restoration should be of a necessary nature. It is, therefore, to my mind, clearly wrong to take the view that the word "necessary repairs" have any connection with the conveniences which the tenant may propose to enjoy by remaining in the demised premises. If he chooses to take on rent premises of poor quality or in bad condition then he is entitled to live in such premises, and not to expect that improvements would be made so that he may live in better premises than those he bargained for when he entered into the contract.

7. In this case, as pointed out by the learned District Judge there is nothing to indicate that the work which the appellant desired to get done was of the nature of repairs, much less of the nature of "necessary repairs." The impression created on the mind of the learned Judge, therefore, rightly was that the object of the appellant was to get improvements made in the premises. That object could not be sustained under section 12 of the Ordinance.

8. I may add lastly that counsel for the appellant tried to create an impression in the end that, owing to the inspection of the learned District Judge made in December 1961, the appellant had actually spent Rs. 3,000 on the repairs of the premises, but counsel for the respondent pointed out that this was not the stand of the appellant even in the memo of this appeal. I may add that this was not the stand of the appellant at the time of the final order made by the learned District Judge, although it was made after a long time of the date of the inspection. The contention advanced by counsel for the appellant, therefore, does not deserve, consideration.

9. The appeal is accordingly dismissed with costs.

K.B.A. Appeal dismissed.

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