1979 PLP 752 (CLC)

Raja Muhammad Ayub Khan for Respondent. Date of hearing : 11th June, 1979. This appeal is directed against an order, dated the 10th April, 1979, passed by an Additional District Judge, whereby he dismissed the first appeal of the appellant, Abdul Shakoor against an order of a Rent Controller permitting the respondent, Muzaffar Iqbal to carry out certain repairs in the house in dispute.

2. The aforesaid order was passed by the learned Rent Controller on an application made by the respondent, under section 12 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In that a application it was alleged by him that the house in dispute, which is occupied by him as a tenant under the appellant, needed certain repairs but they were not being carried out by the appellant. He therefore, sought permission of the learned Rent Controller to effect those repairs and deduct the cost thereof from the rent becoming payable to the appellant. On this, the learned Rent Controller appointed a Local Commissioner who, after inspection of the spot, reported that there ,a ere certain repairs which were required to be undertaken. The learned Rent Controller, therefore, disposed of the application in terms of the report of the local Commissioner. As indicated above, the order of the learned Rent Controller has also been affirmed by the appellate authority.

3. Learned counsel for the appellant contended that the learned Rent Controller did not decide the application in a proper manner. He pointed out that he did not frame the issues arising out of the pleadings of the parties and also did not allow them opportunity to produce evidence in support of their respective pleas. It was also urged by him that the nature and the extent of the repairs had not. been determined by the learned Rent Controller himself inasmuch as he did nothing except transforming the report of the Local Commissioner into his own order. Another defect in the impugned order, which was pointed out by the learned counsel for the appellant, was that he did not assess the cost of the repairs. He relied on Syed Muhammad Sidik Shah v. Muhammad Ishak (P L D 1965 Kar. 442), Munir Ahmad and 8 others v. Kishomal (P L D 1977 Kar.446) to support his arguments. In the case of Syed Muhammad Sidik Shah it was ruled that it is the duty of the Rent Controller to determine "necessary repairs" and he cannot delegate this power to Local Authority. In the case of Munir Ahmad and 8 others the cost of two items of repairs was not determined arid, therefore, the case was remanded to the Rent Controller to find out the cost thereof.

4. On the other hand, learned counsel for the respondent submitted that the learned Rent Controller did not commit any irregularity in deciding the case before him inasmuch as he invited the objections of the parties to the report of the Local Commissioner before deciding the case on the basis of his report. He, however, agreed that the learned Rent Controller should have determined the cost of repairs but this was not, in fact, done by him.

5. It was also disclosed by the learned counsel for the respondent that a repairs allowed by the learned Rent Controller have already been carried out by the respondent. Learned counsel for the appellant was, however, not in a position to concede or controvert the said averment of the learned counsel for the respondent. 6. 1 have carefully gone through the record of the case and find that although the learned Rent Controller had fixed a date for framing of issues yet he did not do so and proceeded to appoint a Local Commissioner. Oil the receipt of the report of the Local Commissioner he invited objections of the parties bat did not allow arty opportunity to the parties to lead evidence to substantiate the objections. He also did not discuss the objections in the order passed by him and decided the application in terms of the report of the Local Commissioner. I am, therefore, of the view that the learned Rent Controller did not afford a reasonable opportunity to the appellant to defend the application and decided the same without applying his mind. He had, in the matter of the proceedings before him, virtually, abdicated in favour of the Local Commissioner. Such a course has been disapproved in the case of Syed Muhammad Sidik Shah cited by the learned counsel for the appellant.

7. Another reason for which the order assailed herein cannot be upheld is that the respondent has been allowed to carry out certain repairs without determining their cost. In view of this omission on the part of the learned Rent Controller, the respondent will feel tempted to seek deduction of any amount from the rent falling due to the appellant by alleging that he had spent that amount on the repairs ; and, in the event of the appellant's not conceding his claim, the dispute relating to the cost of repairs would require adjudication for which the parties will have to initiate appropriate legal proceedings separately. Although the provisions of section 12 of the West Pakistan Urban Rent Restriction Ordinance, 1959 did not expressly require the Rent Controller to work out the cost of` repairs yet, with a view to avoiding multiplicity of proceedings, he should have determined the cost of repair as well. In the case of Munir Ahmad and 8 others relied upon by the learned counsel for the appellant the cost of repairs was not determined by the Rent Controller and, therefore, the case was remanded to him for fresh decision. With respect, I follow the view) taken in the cited case and hold that since the order under appeal does not specify the cost of repairs it suffers from a material irregularity.

8. The upshot of the foregoing discussion is that the learned Rent Controller did not decide the application in a regular and proper manner. I, therefore, accept the appeal, set aside the impugned order and remand the case to him for fresh decision in accordance with law and the above observations There shall be no order as to costs. M. Y: M. Appeal accepted.