1. ' This is a tenant's appeal pertaining to repairs of the disputed premises in terms of section 12 of the Sindh Rented Premises Ordinance, 1979. The premises in question comprise of Godown 1'4).18, Universal Insurance Building, Karachi, which is tenanted by the appellant at a monthly rent of Rs,53.78. As adverted to, an application for its repairs under section 12 of the Sindh Rented Premises Ordinance, 1979, was moved by the appellant-tenant and was numbered as Rent Case No,1389/80.
2. The principal pleas in defence of the respondent-landlord were that there being no agreement between the parties, meaning thereby no agreement in writing, section 12 of the Ordinance was not inviolable and that the application was moved solely to project a contrived defence in eviction proceedings covered by Rent Case No,154 of 1979, which having been earlier filed was pending against the appellant-tenant. The learned Controller, on examination of evidence, has disallowed the application. Hence this appeal.
3. ' Before proceeding further, it will be instructive to reproduce the relevant portion of section 12 of the Ordinance:-- "12. Repairs.---(1) 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 fit to make, direct that such repairs or white-washing may the made by the tenant and the cost thereof may be deducted from the rent payable to the landlord.
(2) ---------------------------------- (3)----------------------------------- ' The learned Controller has found that the obligation of a landlord to bear costs of repairs in relation to a tenant-hold is dependent upon the subsistance of an agreement to that effect between the parties and if there be no such agreement the repairs, if any, and even if necessary would be the pecuniary responsibility of the tenant himself. Supporting this proposition learned counsel for the respondent has referred me to the decision of Zahoorul Hag, J., in Mst. Ahida Salahuddin v. Secretary Education, Government of Sindh, 1986 CLC 724, a case in which the learned Judge found that where there was a specific agreement providing for repairs of the tenanted premises such agreement had to be implemented without any option to the contrary. This view hardly supports anything that the learned Controller has concluded or the respondent has contended. It is obvious, upon a plain reading of section 12 of the Ordinance, that subsection (1) of the provision, spelling out an obligation for a landlord to bear the necessary repairs, is subject to an agreement. In other words, the concept of repairs is to be subordinated to the terms of an agreement, if such are specific on the subject of repairs. In cases of that genus whatever is provided in the agreement, as to repairs, shall have to prevail and would be required to be given effect to. So much so that even the jurisdiction of the Controller under section 12 ibid, relevant to making directions for necessary repairs would come to be regulated by a specific agreement on the subject if such be available and applicable in a given situation.
4. However, the point which is missed is that under the section, bereft of an agreement, specific to repairs, the primary responsibility to carry out repairs is Limn that of the landlord. Yet for such purpose and subject to a contrary agreement, in case of default on the part of the landlord, the tenant can neither withhold rent nor otherwise undertake the carrying out of repairs without duly approaching the Controller under section 12(1) of the Ordinance.
5. ' Question vital to this case is that, admittedly, there is no written agreement of tenancy between the parties, what to say of any supervening term agreed upon between them regarding the matter of repairs. The tenant did make due application for repairs and because nothing to the contrary was envisaged in the terms of tenancy, it could rightfully to do so. As such, the learned Controller was in error in holding that because there was no written tenancy, envisaging or conferring a right on the tenant to seek repairs, none could be sought by it.
6. ' This brings us to the further question whether, on evidence, the application of the present appellant could be granted. It is not disputed that substantial evidence was led from the side of the appellant-tenant supporting the demand for repairs. Not only this, a learned Advocate of the Court namely, Mr. Saleh Memon was appointed as Commissioner for site inspection and such Commissioner also duly confirmed the requirement of repairs in the tenant-hold. However, the learned Controller has bypassed all this material on the short ground that the deponent of the affective-in-evidence from the side of the respondent-landlord was not cross-examined and that being so the respondent-landlord's case stood admitted. This also was incorrect. Normally. On principles emerging from the Qanun-e-Shahadat, 1984, failure to cross-examine a witness from the opposite side may and can have adverse implications on the claim or defence of the party un- explainably failing to make due cross-examination. Such could even constitute; in appropriate cases, an admission of what is stated by the witness who has unaccountably been left without being duly cross-examined. The rule, however, is not always absolute and can never he divested from the overall considerations fairly and lawfully arising upon the record. The place of all procedure in the administration of justice should be and is none else but to secure and assure a just and fair determination of disputes. In the instant matter, apart from evidence from the side of the appellant-tenant, which alone, at the worst, could have been negatived for want of necessary cross-examination of the opposite side, there still remained an uncontroverted Commissioner's report. That such was of probative value is beyond doubt. Besides, it hardly needs any dissertation that a Commissioner is always a neutral person and what he opines in a report, duly submitted, has the stamp of an impartial and non-partisan approach to the question entrusted to him. If it be otherwise, it is routinely open to a disputant to lodge due objections whereupon it comes up before the judicial or quasi-judicial authority, as the case may he, to determine how far the Commissioner's version is acceptable, on being duly tested. Once the report is accepted such carries no ordinary weight. The acceptance may be, as said, on the basis of rejection of objections, or alternatively on no objections being raised at all. The last is the situation in this case. According to the Commissioner's report, irrespective of the version of the parties, the property requires repairs.
7. This had to he accepted by the learned Controller and in not doing so, he again acted irregularly and improperly in the exercise of powers conferred upon him.
8. ' It is urged that what the Commissioner has found is a case of massive repairs and even of renovations none of which is claimed to be permissible by law. Now, in so far as repairs are concerned, as long as such be repairs alone, it may not always be of essence whether the same are minor or massive in character. However, section 12 in the Ordinance does not (on its own) permit nor does it envisage any renovations whatever; for that matter neither has the Commissioner recommended any.
9. ' It has then been contended from the side of the respondent that the rental of the premises is only Rs,53.78 whereas according to the claim of the appellant itself, repairs in the tune of Rs,18,457.50 are likely to be incurred. On this basis, argument is that it would take years on end to seek adjustment from the appellant-tenant, in the event repairs, as prayed for, are allowed. This argument again proceeds on the assumption that the quantum of expense, as claimed by the appellant has an element of sanctity. It has none. Moreso because the appellant-tenant has failed to cross-examine the solitary witness produced from the side of the respondent landlord. The sole credible evidence on the question of repairs is the report of the Commissioner and that report does not place any huge amount towards the likely costs of the projected repairs. At any event, the learned Controller has not adverted to the element of costs at all. So much so that even the rental of the premises has not been referred to by him in the impugned order. Undoubtedly, the quantum of rent vis-a-vis the costs of repairs would also be a relevant factor for the purpose of exercise of powers under section 12 of the Sindh Rented Premises Ordinance. Indeed section 12(1) itself confers a discretion on the Controller to allow or not to allow repairs in a given dispute, even when a case for repairs, other than one under an agreement, has been set up and established. Such discretion has assumed reinforced importance in the context of age-old and antiquated tenancies with rents rendered pitiably meager and costs of repairs rising manifold on account of unabated inflationary trends in the economy. In matters involving hardship or injustice, a Controller would, therefore, be perfectly within his discretion to refuse an application for repairs but that, again, is a question which has not been touched at the level of the Controller at all. Here, however, it would require to be added that as held in the case of Abida Salahuddin, referred above, in controversies which are governed by a specific agreement, covering repairs, there would be no discretion with the Controller to allow or not to allow repairs; the terms of such agreement alone would come up for implementation. The discretion would be relative to only those situations, as here, when, in the absence of an agreement, a tenant seeks to enforce his right to get necessary repairs executed on the tenant-hold under the terms of section 12(1), unaided or unfettered by any agreement.
10. ' Lastly, though the point has only faintly been mentioned, an application for seeking repairs under section 12(1) of the Ordinance is to be approached on its own merits and whether an eviction petition has preceded or followed it would only be an outside factor, if at all, while addressing an entitlement for repairs, if any. Such defence to the claim is to that extent conditioned.
11. ' In that the learned Controller has not exercised his powers in accordance with the above-referred principles, the impugned order is bad. It is set aside, with a direction to him to proceed to dispose of the dispute in accordance with the dictates of Section 12 ibid. Appeal is allowed.