QAISER AHMAD HAMIDI, J.- This appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, has given rise to an interesting question, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. The appellant is the owner/landlord of residential premises bearing No. 2, P.I.B. Colony. Karachi, which is in occupation of the respondent as tenant at a monthly rent of Rs.1100/-. The tenancy is regulated by an agreement dated 3.11.1982, which was subsequently renewed through an agreement dated 08-10- 1983. It is alleged that the appellant has failed to make such repairs on whitewashing as may be necessary to keep the said premises in proper shape and consequently on 23.8.1986 the respondent filed an application under section 12 of the Sind Rented Premises Ordinance', 1979, in the Court of V Senior Civil Judge and Rent Controller (East) Karachi, seeking permission for carrying out necessary repairs.
3. The appellant resisted the application made by the respondent for the reasons that the said premises does not require any repairs and that the repairs, if any, were to be carried out by the respondent in terms of the agreements regulating tenancy.
4. The parties went to trial on the following issues:-
(i) Whether the opponent being the landlord of the demised premises was liable to carry out annual repairs and maintenance of the demised premises ? If yes, whether he has failed to carry out the repairs and maintenance of the demised premises?
(ii) What should the order be ?
5. The respondent examined himself (PW-1), while the appellant examined himself (DW-1), and Haji Muhammad Jameel Khan (DW-2).
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided issue No. 1 against the appellant and as a necessary corollary to this Finding allowed the application with the following direction:- " ln view of the finding to issue No. 1 the application is allowed and the opponent is directed to carry out the annual repairs and maintenance of the demised premises within two months from the date of this order, failing which the applicant is entitled to do so at his own cost, adjustable towards the future rent."
This order dated 5.3.1990 is the subject matter of the present appeal.
7. I have heard Mr. K.B. Bhutto, learned counsel for the appellant and Mr. S.M.A. Mahmood, learned counsel for the respondent. I have also examined the record of this case carefully.
8. Sub-section (1) of section 12 of the Sind Rented Premises Ordinance, 1979, provides that, subject to the agreement, if the landlord fails to make such repairs or white-washing as may be necessary to keep the premises in proper shape, the Controller may, on application made to him by the tenant and after such inquiry as the Controller deems fil to make, direct that such repairs or whitewashing .May be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord. If we analyse and break up the above provision, it will be clear that structurally it is divisible into three parts, namely:-
(i) Subject to the agreement between the parties;
(ii) If the landlord fails to make such repairs or white washing as Mr. Be necessary to keep the premises in proper shape; and
(iii) The Controller may, on application made to him by the tenant and after such inquiry as the Controller deems Fit to make, direct that such repairs or white washing may be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord.
9. Obviously, therefore, the first part provides a basis for the remaining two, and postulates that for the purpose of an order under section 12 of the Sind Rt tiled Premises Ordinance, 1979, the discretion of the Rent Controller is limited one depending upon the terms of agreement between the parlies.
In the case of Mst. Abida Salahuddin vs. The Secretary of Education. Government of Sind and others, reported in 1986 CLC 724, Muhammad Zahoorul Haq, J. (as he then was) examined this question, which was answered in the following words:- 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."
10. The tenancy agreements are on record (Ex.5 and 6) and one of the conditions of lease according to these agreements is that the minor repairs will be carried out by the lessee, viz., the respondent. The words 'minor repairs' are not defined any where, but they certainly include periodical white-washing and repairs of ordinary nature like affixing of glass panes of doors and windows, or replacement of something already in existence of a petty nature which has become dilapidated or worn out. It, therefore, follows that the appellant was not obliged to carry out 'minor repairs' during the period when the agreements (Ex.5 and 6) were in force. Admittedly the agreement (Ex.6) expired on 30.9.1984 and was not renewed thereafter. In the case of Sheikh Abdus Sattar vs Malik Muhammad Af/al and others, reported in PLD 1985 S.C. 148, it was held that after the expiry of tenancy agreement the rights and liabilities of tenant are to be governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 (Sind Rented Premises Ordinance, 1979), which regulated the terms between the parlies. The case of Mrs. Zarina Khuwaja vs. Auha Mahboob Shah, reported ln PLD 1988 S.C. 19Q, provides a complete answer to the following point formulated by their Lordships of the Supreme Court:- " Whether on termination of an agreement of tenancy when the tenant remains in occupation as of right subject to liability under the Rent Restriction Law, the terms of agreement become irrelevant for regulating to tenancy?
In the following words:- " We have carefully considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy, after its termination.
Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines: ONE: notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with:
(a) the general law; and
(b) the terms of tenancy between the parties,- But, subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect; TWO: during the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant, the regulation of that relationship particularly vis-a-vis the determination and payment of rent; as also the eviction, shall be governed by the covenants contained in the agreement; provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; THREE: after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section '2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a tenant would include "a tenant continuing in possession after the termination of the tenancy in his favour." The definition of tenant in the present Sind Law also provides that a tenant would include "any person who continues to be in possession or occupation of the premises after the termination of his tenancy". Not only this, the present Sind Law made it more clear when the provisions contained in sections 6 and 15 (2)(i) of the Sind Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre-existing law before the re-enactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sind Law is explicit on this point. Same was the position in the repealed law.
Similar would be the case relating to some other situations, for example, the determination of the fair rent. Similarly the vice versa position would also be correct. The terms of the co-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for re- . Construction, all covenants which support the conditions in section 15 of the Sind Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SCM R 184. We accordingly answer the 4th and hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also."
11. The liability of carrying out minor repairs by the tenant in tenancy agreements (Ex.5 and 6), which expired on 30.9.1984, being directly in conflict with section 12 of the Sind Rented Premises Ordinance, 1979, cannot be enforced now in view of the above- ceremonious authority of the Supreme Court, and from 1.10.1984 it was the obligation of the appellant/landlord to carry out such repairs and while-washing as may be necessary to keep the premises in proper shape.
12. Reverting to the second part of section 12 of the Sind Rented Premises Ordinance, 1979, referred to in paragraph 8 ante, it may be observed that it is the failure of the landlord to make such repairs or white-washing as may be necessary to keep the premises in proper shape, that empowers the Rent Controller to embark upon an inquiry of the nature contemplated in section 12 of the Sind Rented Premises Ordinance, 1979. The liability of the appellant to carry out necessary repairs or while-washing in respect of disputed premises accrued from 1.10.1984 and the present application was filed on 23.8.1986 before the expiry of a period of two years. Paragraph 3 of the application made under section 12 of the Sind Rented Premises Ordinance, 1979, is relevant and for the sake of convenience is reproduced below:- "That the opponent has been deliberately avoiding and delaying the repairs and maintenance required to be done annually and causing harassment to applicant".
While taking a wholesome view of the provisions relating to the repairs of the premises, it is apparent that section 12 of the Sind Rented Premises Ordinance, 1979, does not speak of -annual white washing'. It only provides for such 'repairs' or 'white-washing' as may be necessary to keep the premises in proper shape. There is word against word and no satisfactory evidence is brought on record by the respondent to prove about the existing conditions of the premises to justify its repairs or while-washing, as the case may be. The burden of proof plays an important part in the discussion of the evidence and the arriving at of a conclusion on the basis thereof. The evidence adduced by the respondent is vague and sketchy. No details whatsoever of the repairs are disclosed in the evidence. No qualified person or an expert witness was examined by the respondent to satisfy as to whether the disputed premises needed repairs,? If so to what extent?.
The finding of the learned Rent Controller is based on mere surmise and not on any evidence.
Having approached the issue from a wrong angle, he misled himself by confining his attention to words 'annual repairs' and 'annual white-washing', the terms which arc unknown to section 12 of the Sind Rented Premises Ordinance, 1179.
13. The learned Rent Controller has again allowed the repairs without specifying the repairs so permitted and fixing the limits, ln fact he appears to have granted card-balance to respondent to incur any amount as cost of such repairs adjustable towards the future rent, which is an erroneous approach.
14. As regards to third part of section 12 of the Sind Rented Premises Ordinance, 1979, referred to above about the scope of inquiry by the Rent Controller, it may be added that the legislature not having defined the limits, no had and fast rule can be laid down circumscribing it. However, in cases of this nature (he inspection of site by the Rent Controller will enable him to arrive to a just and proper finding.
15. For the foregoing reasons the impugned order cannot be sustained and is set-aside. The appeal is allowed, but the parties are left to bear their own costs.