P L D 1964 Supreme Court 103 (PLP)

S. A. RAHMAN, J.

This is an appeal by special leave, which calls in question an order passed by a learned Single Judge of the High Court of West Pakistan, Karachi Bench, in revisional jurisdiction. The relevant facts are these. The appellant, Lt. Commander M. I. Khan, is a tenant in a premises belonging to the respondent, Abdul Qadir, in Karachi. The respondent made an application under section 27 of the Small Causes Court Act, for a distress warrant to be issued against the appellant, on the ground that the latter had failed to pay arrears of rent due. The application was heard by the Judge, Small Causes Court. The appellant appeared before him and claimed a set‑off to the extent of Rs. 500, which he asserted he had spent on repairs to the building, under the authority of the Karachi Municipal Corporation, who had given notices for repairs to the landlord, that had not been com plied with. The claim for a set‑off was contested o7 behalf of the landlord but the learned Judge, Small Causes Court, passed an order for adjustment of Rs. 500, due to the appellant, in the demand for rent. As the arrears of rent said to be due were less than Rs. 500, the petition for a distress warrant was dismissed. From this order, a revision was taken to the High Court of West Pakistan. A learned Single Judge took the view that the powers of the Corporation to order repairs to a premises situate in the Karachi area, was confined to the four corners of section 190 of the City of Karachi Municipal Act, 1933, as amended from time to time, and that this section controlled section 235 of the Act. Under the former section, necessary repairs could only be ordered to be effected to a premises which was in a dangerous state of disrepair, entailing risk to public safety. On this view, the learned Judge thought that the repairs claimed to have been effected by the appellant, which were of an ordinary character, could not have been authorised under the Act. The order passed by the learned Judge, Small Causes Court, was therefore set aside. The tenant was allowed to pay the rent demanded within two months, during which time the distress warrant was not to be executed. The main question for determination in the case is whether the view that prevailed in the High Court as to the effect of section 190 of the Act vis‑a‑vis section 235 thereof, was correct or not. The relevant sections of the Act are reproduced below :‑‑ "190. (1) If in the opinion of the Chief Officer, any building, wall, structure or anything axed thereto is in a ruinous or dangerous state, the Chief Officer may, by notice in writing, require the owner or occupier thereof forthwith either to remove the same or to cause such repairs to be made thereto as he considers necessary for the public safety ; and if the danger appears to him to be imminent, he may forthwith take such steps as may be required to avert such danger, including the for cible removal without notice from such building of all the occupiers thereof and their property. (2) Any expenses incurred by the Chief Officer under sub section (1) shall be paid by the owner concerned. (3) Except with the permission in writing of the Chief Officer no person shall enter into or remain in any building from which the occupier has been removed under subsection (1)." "

235. 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 will be seen that the scope of section 190 is limited to the removal of buildings in ruinous or dangerous state, or to their effective repairs, in the interest of public safety. Section 235 however is more general in character. If any work can be requir ed to be executed under the provisions of the Act and the owner fails to comply with the requisition, an occupier of the building in question, with the previous approval of the Chief Officer, could undertake the work and he would then be entitled to recover the reasonable expenses incurred therein, from the owner. With out prejudice to any other right of recovery, the tenant would be able to deduct the amount thus spent, from the rent due from him from time to time. The question therefore resolves itself into an inquiry whether the repairs in question which the appel lant effected in the premises, had been authorised by the Chief Officer of the Corporation under any provision of the Act. Our attention was invited by Mr. Ibadat Yar Khan on behalf of the appellant, to section 281 of the Act, which provides that the Schedules to the Act as amended from time to time, shall be deemed to be part of the Act. Section 282 further empowers the Corporation to add to certain Schedules, rules not inconsistent with the provisions of the Act, to provide for any of the matters dealt with in such Schedules or for any of the purposes specified in section 286, subject to a proviso which is not material for our purpose. Section 286 enacts that rules made under section 282 may provide for or regulate, inter alia, the cleansing, lime‑washing or painting of such buildings and keeping of them in proper repair, vide clause (c) of item 41 of that section. It is thus clear that beside repairs to dangerous buildings, ordinary repairs of the character above‑mentioned, can also be directed to be made by the Corporation, if rules are framed for the purpose. Chapter I of Schedule VI to the Act deals with drains and drainage works, including water closets, and gives powers to the Chief Officer to give directions with regard to them to owners of premises by a written notice, to put them in order. There are provisions in Chapter II of that Schedule with regard to water supply system and their fittings. Similar powers are conferred on the Chief Officer to have certain works executed under this Chapter. Chapter VII of this Schedule contains provisions of a like character bearing on scavenging and cleansing of premises. Rule (3) thereof specifically refers to the requirement of cleansing and lime‑washing a building. It does not therefore appear to be correct, as seems to have been assumed by the learned Judge, that the authority of the Municipal Committee extends no further than the ambit of section 190 of the Act. Confronted with the relevant provisions of the law, Mr. M. K. Chandnani appearing for the respondent, frankly conceded that he was unable to support the view taken by the learned Judge in this respect. Our attention has also been drawn to a recital in the judgment of the High Court to the effect that there was nothing on the record to show that the owner of the building was ever required by the Municipality to execute the work in question. This does not appear to be correct. There is a statement of Mr. J. Robert, Health Inspector of the Municipal Committee, at page 28 of the printed record, in which he had stated on oath that the K. M. C. had authorized Lt. M. I. Khan to carry out repairs to the entire building, after giving six notices to the landlord, that Mr. Khan submitted bills of repairs which were verified by the Building Engineer of the K. M. C. and that the total amount spent was Rs.

500. At page 23 of the record is a letter issued by the Municipal Corporation, Health District, to Lt. M. I. Khan, distinctly authorizing him under section 235 of the Act, to carry out certain sanitary requirements. The requirements in question are categorized under six heads in which specifically, notices have been referred to, that were probably issued to the landlord. Apparently, the attention of the learned Judge was not invited to these materials on the file. The two grounds on which the judgment of the High Court proceeded, are therefore found to be erroneous. The question of merits of the claim made by the appellant has not been adjudicat ed upon by the high Court. We therefore allow the appeal, set aside the order passed by the learned Single Judge and remit the case to the High Court for decision of the case on the merits in the light of the observations made above. Costs will abide the final event. K. B. A. Appeal accepted. Case remanded.