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First Rent Appeal No. 218 of 1985, decided on 15th October, 1985

‑‑‑Ss. 12 & 21(1)‑‑Repairs of premises‑‑Expenses‑‑Agreement between parties‑‑Option to the Rent Controller‑‑Repairs of premises being subject to agreement between landlord and tenant, Rent Controller before applying his mind to need of repair had first to see if there was any agreement in that respect between parties‑‑Where such "agreement existed between parties, Rent Controller, held, had no option but to make order regarding repair in accordance with agreement.

Muhammad Ali Jan for Appellant.

Muhammad Ibrahim Memon, A.A.‑G. for Respondent.

Date of hearing: 7th October, 1985.

This appeal is directed against the order of Senior Civil Judge and Rent Controller, Karachi, dated 21‑2‑1985, whereby he had allowed a sum of Rs. 13,536 to the respondent towards the charges of repairs. He had calculated the same at the rate of 10 of annual rent and since admittedly for 8 years the repairs had not been carried out, therefore, he allowed 8 years repairs. The calculation made by him was that the annual rent was Rs. 16,920 and total rent for 8 years comes to Rs. 1,33,160, therefore, 10 would come to Rs. 13,536.

2. It appears that the learned Rent Controller has failed to note the provisions of section 12 of the Sind Rented Premises Ordinance, 1979, which provides for repairs but the same is subject to agreement between the parties and, therefore, before applying his mind, as to' what repairs were needed, the Rent Controller had first to see if there was any agreement in this respect between the parties and if such agreement was before him then he had no option but to make an order in accordance with the agreement.

3. The appellant's counsel has drawn my attention to Exh. 2/1 which was an agreement of lease between the parties dated 9th June, 196 and para. 4 of the same is relevant which is hereby reproduced:‑

"4. That the party of Second Part would hand over the vacant possession of the entire building to the Party of the First Part on 1st July, 1967 with complete white‑washing, colouring, varnishing of the building and of any fittings and accessories and complete electrical fittings alongwith 8 ovens of Sui Gas. The white‑washing, colouring, painting etc. will be 'done after every two years by the Party of the First Part and half of, the expenses will be borne by the Party of the Second Part. The expenses would not exceed Rs. 2,000 (two thousand only) in all; over and above of these expenses, if any, would be borne by the Party of the First Part exclusively."

This agreement shows that the white‑washing, colouring, painting was to be done after every two years by the tenant and the half expenses were to be borne by the appellant but the same were not to exceed Rs.1,000 in all. It is further provided clearly that over and above the amount of Rs.2,000 would be borne by the respondent exclusively. It is, therefore, clear to me that the repairs of Rs.1,000 per year were stipulated and half of that was to be borne by the appellant /landlord and the rest even if it was more than Rs.1,000 per year was to be borne by the respondent. Since the allegation in the application of the respondent, was that the repairs had not been carried out since 1976, therefore, the calculation has to be made from 1976 till today which comes to a period of 9 years and, therefore, Rs.500 per year as share of appellant for the said period of 9 years would come to Rs. 4,500 to which the respondent would have been entitled. But the respondent's witness, Mr. Zahid Hussain Siddiqui, has admitted that one month's rent was deducted by them towards the repairs after 1976, therefore, Rs.1,400 shall have to be deducted out of the sum of Rs.4,500 which can be allowed to the respondent against the appellant. Therefore, the total amount of only Rs .3,100 could have been sanctioned by the Rent Controller in favour of the respondent against the appellant and an adjustment of rent to that extent could have been allowed.

4. Accordingly, I accept the present appeal partially and modify the order of the Rent Controller and allow only Rs.3,100 towards the repairs which had not been carried out from 1976 till 1985.

The respondent will be entitled to deduct this amount from the rent provided the respondent produces a certificate from the repairs‑man that the repairs to the extent of Rs.6,200 had been actually carried out as the responsibility of the appellant is only half of the amount of repairs.

H . B . T Appeal partially accepted

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