P L D 1975 Kar (PLP)

Ismail Munshi for Respondents. Date of hearing: 5th May 1975. By this 2nd appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as `the Ordinance) the appellant has challenged the juogment of the Additional District Judge, Dadu dated 20‑9‑1969 whereby he set aside the orders passed by the Civil Judge and Rent Controller dated the 17th December 1968.

2. The facts in brief are that the respondent No. t is the appellant's tenant in Shop Nos. 1056/1 and 1015 Cinema Road, Dadu since 1962 at a monthly rent of Rs.

100. In 1964 the appellant installed a spiral staircase by the side of the door of the shop of the respondent No. 1 and leased out the roof of the shop to respondent No. 2 who annexed the same to his hotel which was run by him on the first floor of the adjoining building. The appellant is also said to have closed down the ventilators of the shop which were used as passage for light and air and thus gave a cause of complaint to the respondent No.

1. The respondent No. 1 moved the Rent Controller under section 10 of the Ordinance seeking restoration of the amenities. He specifically prayed that the spiral staircase be got removed as it had .obstructed the view of the shop and had also obstructed the passage of the ‑light and air in the shop and that the ventilators which had been closed down should be get reopened. This application was, however, withdrawn.

3. After the withdrawal 'of the above‑mentioned application, a second application (from which the present appeal emanates) was filed before the Rent Controller for the reliefs which were already incorporated in the earlier application. . The only difference was that in this application the respon dent No 2 who was the lessee of the roof was impleaded as a party to the case and it was further prayed that the respondent No. 1 should be restrained from using the roof of the shop.

3. The Rent ‑ Controller framed the issues on the points on which the parties were at variance and decided that the appellant should remove the spiral staircase and open the ventilators for the passage of the light and air in another portion of the shop which he specifically pointed out in his order. He, however, held that the roof did not form part of the tenement and, therefore, its possession could not be ordered to be restored to the respondent No. 1.

4. It is stated by the appellant that in compliance with the orders of the Rent Controller he removed the staircase and opened the ventilators in the shop to restore the easements of which the respondent. No. 1 had hitherto been deprived of. Despite this, the respondent No. 1 did not feel satisfied and he filed a time‑barred appeal in the Court of the District Judge, Dadu challenging the validity of the Rent Controller's orders dated 17‑12‑1968 and praying that the original ventilators should be ordered to be restored. The possession of the roof was also demanded. The learned Additional District Judge allowed the appeal vide his order dated 20th September 1969, and ordered that the original ventilators should be got opened by the appellant and newly opened ventilators be closed down, the staircase be removed and in case the same was not removed by the appellant it shall be removed at his cost after the expiry of one month. It was further ordered that peaceful possession of the roof should also be restored to the respondent No. 1 as the roof of the shop formed part of the tenancy along with the shop.

5. The points for determination in this appeal are (1) Whether the time‑barred appeal could be entertained by the learned District Judge by condoning the delay of 13 days caused in the filing of the appeal ? and (2) Whether the roof of the shop formed part of the tenancy and went along with the shop ?

6. As far as the first point is concerned, the learned counsel for the appellant has argued that the Rent Controller decided the case on 17th December 1968, and the first application to obtain copy of his judgment was filed on 14‑1‑1969, but as the costs of the copy were not paid, therefore, that application was consigned to records without further action. Thereafter, without any cogent reason he kept silent till 28‑1‑1969 when he filed another application for copy. The copy was issued on 30‑1‑1969 on which date the appeal was also filed. The appeal before the District judge was, as such, filed with a delay of 13 days. The respondent No. 1 had supported his appeal by an affidavit wherein he has stated that he was ill and confined to bed from 14‑1‑1969 to 28.1‑1969 and therefore. he could not file application for obtain ing copy of the judgment of the Rent Controller earlier. He also filed a certificate of a private practitioner namely Dr. Mahboob Alam Alvi who certified that the appellant was suffering from Typhoid from 14‑1‑1969 to 27‑1‑1969 and that he was recommended rest during the period of his illness, The learned counsel for the respondent No. 1 has argued that the condonation of delay in filing the appeal being discretionary, the order of the District Judge who had exercised discretion in favour of his client was not open to criticism. The exercise of discretion is always to be reasonable and based on sound footings and not whimsical or arbitrary. In this case 13 days' delay has been condoned simply on the basis of a certificate of a private practitioner without taking into. consideration that the respondent No. 1 could authorise anybody else on his behalf to obtain the copies or at least he could ask his counsel to do the same for him. It is a mater of common knowledge that typhoid is not such disease which may suspend or paralyse the senses of its victim to such an extent that he may not be able to think of such an important matter. Not appointing of an agent to obtain the copy of the order therefore seems to be a deliberate act, the advantage of which should not accrue to the respondent No.

1. There is also no explanation as to wily he did not make any application before 14‑ 1‑1969 and that what had prevented him from depositing the costs of the copy on 14‑1‑1969 when he made application. He did not even seek restoration of the application dated 1 a‑1‑1969 and to obtain copy of the judgment on the basis thereof so that the period of limitation could be covered. The condonation of delay under section 5 of the Limitation Act is always resorted to in very special circumstances and the delay of each day is to be accounted for. In the instant case no such circumstance existed at all. It cannot, therefore, be said that the respondent No 1 was completely deprived of his senses from 14‑1‑1969 to 27‑1‑1969 and, therefore he was disabled from making application for the copy either himself or by someone else on his behalf to do so including his Advocate. In these circumstances, I find that the interference with the order of the District Judge will be justified. I, therefore, hold that there was no sufficient cause for the District Judge for condoning the delay of 13 days in the filing of the appeal. The appeal before him was obviously time‑barred and should have been dismissed on this ground alone.

7. As far as the second point is concerned, the learned counsel for the appellant has argued that it is open for owner of any premises to construct upper storey on the building leased out by him. In that event the tenant would not be justified under law to stop him from raising such construction. On the other hand the counsel for the respondent has argued that as long as no permanent building was raised on the roof, the roof went along with the tene ment of the shop and would form a part of the same for all purposes. As far as this case is concerned, his argument is that the roof of the shop was used for storing empty cases by the respondent No.

1. He argued that the shop, as it is, was transferred to the appellant by the Settlement Department and that all what had been transferred to him by the Settlement Department in the shape of the shop was leased out by him to the respondent No. 1 and the latter was entitled to its use without any interference or changes. The learned counsel has placed reliance on Muhammad Sharif v. Shaikh Muhammad Ilyas (1974SCMR 61) wherein it is held that mere non‑mention of the roof in the transfer document issued by the Settlement Department would not mean that the roof was separately transferable. It would go with the main building and form part of the transferred premises. The facts of this case do not apply to the instant case as in cases of transfer of property by the Settlement Department the position is materially different than ‑the one with which we are faced in this case. As far as above said case is concerned, it strictly pertains to the transfer of property by the Settlement Department whereas the question involved in this case is whether the upper portion of roof of a premises formed part of the tenement or not. It is an admitted fact that every, landlord is allowed to construct a second storey on the roof of the premises, and lease it out to a person of his choice. It would, therefore, mean that practically the upper portion of the premises does not form part of the) tenement unless otherwise provided. Judging from this angle it is manifest that if the roof can form part of the upper storey, and leased out separately then why the roof can not be leased out by the landlord as an independent unit. In this case the roof was leased out for the first time in 1964 whereas objection was raised in 1967 when application under section 10 of the Ordinance was filed. If the roof had been a part of the tenancy or the same was used by the respondent No. i, then objection should have been raised immediately when it was leased out to respondent No. 2, The respondent) No. 1's silence over the, matter for three years and omission to take up this ground in the first application filed by him under section 10 of the Ordinance c shows that he was indifferent about the roof of the shop and, therefore. he allowed it to be used by the respondent No.

2. He woke up from slumber when staircase was fixed by the side of his shop and ventilators were closed down. The plea regarding the roof was included in the application just for the sake of a controversy and not because he experienced any genuine difficulty by the fact that the roof was separately leased out. The outcome of this discussion; therefore, is that the roof of a building does not form part of the tenement and its upper portion can be used by the landlord for construction of upper storey or for any other purpose subject to the condition that it does not in any manner disrupt the peaceful enjoyment of the premises by the tenant. The contention, therefore, that the roof formed part of the tenement and it could not be separately leased out is also without force and is hereby repelled.

8. As a result of above discussion I set aside the order of the learned Additional District Judge, Dadu dated 20‑9‑1969 but with no order as to costs. Appeal allowed.