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Second Appeal No. 329 of 1972, decided on 21st February 1977.

----S. 12‑Repairs of premises‑Words "structure"; "structural"‑ Meaning‑‑Replacement of roof of wooden beams and rafts by another roof of same material or of different material‑Held, amounts to structural alterations which a landlord cannot be compelled to carry out at his costs.‑[Words and phrases].

Murray's Dictionary ; R. B. Andhyarujina on Principles of Rent Control, p. 141 ; Free v. Callender's Trustees (1927) S L T 17 and Strood Estates CoM Ltd. v. Gregory 1938 A C 118 ref.

‑‑ S. 12‑Repairs‑"Necessary repairs"‑Meaning‑White‑washing‑ Held not covered by words "necessary repairs"‑Landlord under no obligation to carry out white‑washing of leased out premises. [Words and phrases].

Monk v. Noyes 1 C 8t P 265 ; Dredge v. Conway (1901) 2 K B 42 an4' Black's Law Dictionary ref.

‑‑ S. 12‑Repairs‑Amount of Rs. 3,200 allowed to be spent in carry ing out repairs of premises leaned out on rent of Rs. 2.50 p.m. Whether unjust and improper [Quaere].

Ahmad Ali for Appellants.

Maroof Ali Khan for Respondent.

The respondent is tenant of the appellant in respect of house bearing No. D‑48, Pano Akil.

On an application made by the respondent under section 12 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) being Rent Application No. 6 of 1969, Civil Judge and Controller, Ghotki by his order dated 8‑9‑1970 directed the appellant to carry out the following repairs to the house and on his failure to carry out the same allowed the respondent to carry out the same and sanctioned a sum of Rs. 3,200 on account thereof.

"(a) Masonry in under pinning of walls.

(b) Replacing of sand, thatched roofing of wooden beams, rafts, and' serkanda matting as the wooden beams and rafts of two rooms have been badly affected by white ants.

(c) Repairs of outer boundary wail.

(d) White washing of the entire house."

The a0peal filed by the appellant against this order before the Additional District Judge. Sukkur failed. Therefore, the appellant has come up to this Court in this second appeal.

I have heard Mr. Ahmed Ali, Advocate for the appellant and Mr. Maroof Ali Khan, Advocate for the respondent.

Mr. Memon submitted that the rent of the premises is Rs. 2.50 per month and Controller has allowed repairs in the amount of Rs. 3,200 which will con sume rent for a period of 106 years and therefore, he contends that the order is unconscionable. He also contends that the Controller by the impugned order has allowed structural alterations inasmuch as he has ordered to replace the roof of sand and thatched by replacing of wooden beams and rafts which is not permissible under the provisions of section 12 of the Ordinance.

On the other band the learned Advocate for the respondent contended that no limitation as to the amount of expenditure in carrying out repairs has been prescribed under section 12 of the Ordinance and, therefore repairs involving expenditure of any amount could be sanctioned thereunder. It. is further contended by the learned counsel that none of the repairs allowed to be carried out involved structural alteration. Now I would take up the second contention of the learned counsel first which involves the consideration of the question whether by the impugned order the Controller has sanctioned expenditure on alteration in the structure of the premises. The repairs for which the permission was sought I have already mentioned above. The learned counsel for the parties agreed that masonry in under pinning, of walls and repairs of outer boundary walls are items of repairs. However, the controversy is with regard to the replacement of sand thatched roofing of wooden beams, rafts, and serkanda mattings. It is admitted, position that the wooden beams and rafts of two rooms have been badly affected by white ants and require replacement. These however, cannot be replaced unless the entire roof is demolished. Therefore, the further question is whether replacement of roof by another roof of wooden beams and rafts or by other material will amount to alteration of structure. Therefore, it is, necessary to consider the meaning of the word 'structural alteration' used in section 12 of the Ordinance.

"Structure" is defined as that which is built or constructed according to Murry's Dictionary, and "structural" means pertaining to structure (ibid). The word "structural" usually is used in the sense of "pertaining to structure of a building". The expression "structural alteration" is nowhere defined in Ordinance or judicially interpreted in Pakistan. It implies some sort of reconstruction of the house either partly or wholly, affecting the frame of the building, in its essential parts and it may be minor or it may be major as opined by R. B. Andhydrujina in his well known Book "Principles of. Rent Control" at page 141 thereof. He has also referred to several cases decided in foreign jurisdiction in order to show what are "structural alterations". Here, I may refer to two of them.

In Free v. Callender's Trustees (1927 S L T 17) it was held that the substitution of a water closet for an earth closet was improvement or structural alteration.

Similarly in Strood Estates Co. Ltd. v. Gregory (1938 A C 118), it was held that replacement of an old system of sanitation by a modern one is a structural alteration or reasonable improvement.

I am therefore, of the opinion that replacement of the roof of wooden beams and rafts by another roof which may be of the same material or of different material will amount to structural alterations, which a landlord cannot be compelled to carry out at his costs under the provisions of section 12 of the Ordinance.

As regards the item of white‑washing or painting, there is no doubt it is ordinary implied in the term 'repairs' as held in two English decisions namely, Monk v. Noyes (I C & P 265), Dredge v. Conway ((1901) 2 K B 42), but in section 12 of Sind Rent Restriction Ordinance, 1959, the phrase used is 'Necessary repairs'. The word 'Necessary' must be considered in the connection in which it is used, as it a word susceptible of various meanings. According to Black's Law Dictionary, it may import absolute physical necessity or inevitability, or it may impost that which is only convenient useful, appropriate, suitable, proper, or conductive to the end sought. It is an adjective expressing degree, and may express mere convenience or that which is indispensable or essential or an absolute physical necessity".

In my opinion the Legislature has used the adjective 'necessary' meaning as indispensable or an absolute physical necessity, for painting and white washing is usually provided for by the terms of lease.

I am therefore, of the opinion that the white‑washing , is not covered by the word 'necessary repairs' used in section 12 of the Ordinance and therefore, the landlord/appellant is under no obligation to carry out the same, and it has therefore, been wrongly allowed by the Controller.

As regards the remaining two items of repairs, it is not known as to what would be the costs thereof for there is nothing on record to show the costs of these items. It is therefore, necessary to remand the case to the Controller to find out the costs thereof.

The second question that the amount of Rs. 3,200 allowed to be spent in carrying out repairs on the above four items is unjust and improper keeping in view the rent of the premises which is Rs. 2.50 per month only, in my opinion does not arise at this stage in view of the above finding. I therefore, need not express any opinion thereon.

Mr. Memon further stated that the house collapsed during 1976 rains and has now become totally irreparable if it was not already irreparable. In support of the statement the appellant has produced a certificate from the administrator, People's Town Committee which is to the above effect. But this position is not admitted by the learned counsel for the respondent. I am therefore, of the view that this question can also be decided by the Controller on remand of the case.

I therefore, set aside the two impugned orders and remand the case to the Controller to decide the same afresh by giving finding on the following issues which are framed by consent of the parties in the light of the observa tions made hereinabove and after recording such evidence as the parties may choose to produce.

(1) Whether the house has collapsed and has become totally irreparable 7

(2) If not, what repairs are necessary and whether the same should be allowed

In the result the above orders are set aside and the appeal is allowed to the above extent.

S. Q. Order accordingly.

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