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Civil Revision No. 158 of 1960, decided on 5th September 1962.

"Repairs" mentioned in S, 235 has reference to S. 190‑Owner of building not required by Municipality to execute work‑Tenant carrying out repairs, albeit with permission of Health Officer, not entitled to recover cost under S. 235.

--Can be interfered with in revision.

Tulsidas Ramchand and another v. Pritbai (w/o Rewachand) and others A I R 1942 Kar. 543 ; Messrs Muhammadi Steamship Co. Ltd. v. Messrs Abdul Aziz Ali Mohammed P L D 1959 Kar. 269 and F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri P L D 1957 Kar. 832 rel.

Sid Krishan Saigal v. Arjan Singh A I R 1936 Pesh. 1 and Sunderdas Ghanshamdas v. Tarasingh Premsingh and another A I R 1944 Sind 168 ref.

M. K. Chandnani for Applicant. Talmiz Burney for Respondent. Date of hearing : 5th September 1962.

This is an application in Revision under section 32 of the Karachi Small Causes Court Act. The applicant made an application under section 27 of the Small Causes Court Act for distress warrant on the ground that the opposite‑party (herein after called the tenant) had failed to pay the arrears of rent. The tenant claimed a set‑off in the sum of Rs. 500. The arrears of rent claimed came to Rs. 471. The tenant stated that he had spent a sum of Rs. 500 under the authority of the Karachi Municipal Corporation under section 235 of the Municipal Act (hereinafter called the Act) and therefore was entitled to recover the same from the landlord and could deduct the same from the rent due.

2. Mr. Chandnani, the learned Advocate for the applicant, contended that the tenant was not entitled to claim a set‑off of Rs. 500. In order to appreciate the contention of the learned Advocate it would be useful to reproduce section 235 of the Act. It runs as under :‑

"Whenever the owner of any building or land fails to execute any work which he is required to execute under this Act, the occupier of such building or land may execute the said work with the previous approval of the Chief Officer; and for doing so he shall be entitled to recover the reasonable expenses incurred therein from the owner and may without prejudice to any other right of recovery deduct the amount thereof from the rent which from time to time becomes due by him to the owner."

It would appear from the above provision that the main ingredients of the section are :‑

(1) that the owner of the building or the land should have failed to execute the work that he may have been required to execute;

(2) that the work that the owner may have been required to execute should be one under the Municipal Corporation Act ;

(3) the occupier of the building may execute the work but with the previous approval of the Chief Officer ;

(4) if the occupier so executes he will be entitled to deduct the amount from the rent.

The most important point therefore to consider is, keeping the ingredients of section 235 of the Act, whether the owner was required to execute the work under the Act. There is nothing on the record to show that the owner of the building was ever required by the Municipality to execute the work. On the other hand, it would appear from a letter of the Assistant Health Officer, Karachi Municipal Corporation, addressed to the tenant that it was on his application that he was authorised to carry out the repairs to the sanitary fittings of the building. In this connection it would be necessary to mention that the only provision under which the Municipality can ask the repairs to be carried out is section 190 of the Municipal Corporation Act. Under this section if the Chief Officer is of the opinion that any building is in a ruinous or dangerous state he may by notice in writing to the owner or occupier require him to remove the same or to cause such repairs to be made thereto as he considers necessary for the public safety. In this case the Chief Officer never required the landlord to carry out any repairs whatsoever which may have been necessary for the public safety. The repairs mentioned under section 235 has a reference to my mind to section 190 of the Municipal Act.

3. It would further appear from the letter dated the 2nd February 1959 of the Health Officer addressed to the tenant that the repairs that had to be carried out were of a minor nature such as cleaning and white washing the premises. The repairs that the tenant was authorised to carry out could not be said to be of such a nature which, in the absence of the repairs having been carried out, would have dangered public safety. However, this point is not of much importance so long as the ingredient of section 190 of the Act has not been fulfilled inasmuch as the Chief Officer never gave any notice to the landlord or the occupier requiring them to carry out the repairs in the interest of public safety. For the reasons that I have given above I am of the view that the tenant was not entitled to recover the sum of Rs. 500 under section 235 of the Municipal Act.

4. Mr. Burney, the learned , Advocate for the tenant, however, contended that it was not urged by the landlord before the Small Causes Court Judge that the tenant was not entitled to recover the sum of Rs. 500 under section 235 of the Act. He contended that all that was urged before the Small Causes Court Judge was that‑the tenant was entitled to a set‑off only for what he has spent on'' the portion of the building in his occupation and not what he has spent on behalf of others. It was however the duty of the Small Causes Court Judge himself to see whether the tenant was entitled to recover this amount under section 235 of the Act from the landlord. This is a pure question of law whether the tenant is entitled to recover Rs. 500 under section 235 of the Act ; the applicant can be allowed to urge this point at this stage.

5. Mr. Burney, the learned Advocate for the opposite party, contended that no Revision would lie against the order passed by the Small Causes Court Judge as sub stantial justice has been done. He relied on the following cases :‑

(1) A I R 1936 Pesh. 1 (Sir' Krishan Saigal v. Arjan Singh);

(2) A I R 1944 Sind 168 (Sunderdas Ghanshamdas v. Tarasing Premsing and another).

On the other hand, Mr. Chandnani has relied on the follow ing cases :‑

(1) A I R 1942 Kar. 543 (Tulsidas Ramchand and another v. Pritbai (w/o Rewachand) and others).

(2) P L D 1959 Kar. 269 (Messrs Muhammadi Steamship Co. Ltd. v. Messrs Abdul Aziz Ali Mohammad).

(3) P L D 1957 Kar. 832 (F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri).

The provision of section 32 of the Small Causes Court Act is very clear. Under this section the Chief Court may, for the purposes of satisfying itself that a decree or order made in any case by the Court was according to law, call for the case and pass such order with respect thereto as he thinks fit. The pro vision is wide enough to empower the Court to satisfy itself whether the order passed by the Small Causes Court Judge wash according to law. In this case, as I have held above the learned Small Causes Court Judge did not act in accordance with the law inasmuch‑as the tenant was not entitled in law to recover the amount of Rs. 500 under section 235 of the Act. I respectfully agree with the view taken by the learned Judges in the cases relied upon by Mr. Chandnani.

6. I would, for the reasons given above, allow the appli cation and set aside the order of the learned Small Causes Court Judge allowing a set‑off to the tenant. In the result the distress warrant will continue till the amount of Rs. 471 is paid by the tenant. Mr. Burney prays for two months time to pay the sum of Rs. 471 to the applicant. Mr. Chandnani has no objection to the time prayed for. I would allow the tenant to pay the amount within two months. In the meantime, distress warrant should not be executed. I would make no order as to costs in the circumstances of the present case as the applicant did not take the point urged before me in the Small Causes Court.

K. s. A.

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