P L D 1962 (W (PLP)

WAHIDUDIN, J. (11‑4‑1961)‑This is a petition for a writ of certiorari directed against the order of Mr. Ghulam Hassan A. Shaikh, Chief Judge, Karachi Small Causes Court, in Revision Application No. 72 of 1958 dated November 1958 rejecting the petitioner's application for setting aside the order of Mr. S. Aftab Hussain, Additional Rent Controller, Karachi, arising out of a matter under the Karachi Rent Restriction Act, 1953. Messrs United Commercial Bank, respondent No. 1, occupied the entire ground flour in a building on plot No. 2/A S. R. 2, Serai Quarters, Karachi, known as "Bombay Life Building" as tenant of Messrs Life Insurance Corporation of India, the petitioner., under a registered lease deed dated 7th February 1945, which is effective from the 13th of September 1943, on a monthly rent of Rs. 1,000 for a period of fifteen years. On the 25th of November 1957 respondent No. 1 moved the Rent Controller of Karachi under section 6 of Karachi Rent Restriction Act, 1953 to call upon the petitioner to carry out repairs in the premises occupied by them and in the event of their failure to do so to allow them to carry out the necessary repairs. The learned Additional Rent Controller in Case No. 463 of 1957 by an order dated 27th February 1958 allowed this petition and permitted respondent No. 1 to carry out the repairs in the premises occupied by them within the sanctioned amount of Rs. 3,

000. Thereupon the petitioners filed Revision Application No. 72 of 1958 before the Chief Judge. Small Causes Court, Karachi to challenge the order of the Rent Controller. This revision application was dismissed on the (sic.) of November 1958. The Chief Judge, Small Causes Court, in dismissing the revision application, observed that the learned Rent Controller had considered both the clauses of the covenant and had come to a proper conclusion that the applicant could not escape the liability of making repairs in accordance with the Act. The petitioners have challenged the order in this writ petition. In order to appreciate the point raised before us it will be proper to mention at this stage that the lease deed dated 7th February 1943 contains Clauses 6 and 10 which determine the right of the parties about the repair of the demised premises. They are reproduced below :‑ "

6. To keep the demised premises and all the alterations and additions made to and in the same in good and tenantable repair and condition (reasonable wear and tear and damage by fire and other inevitable accident or any cause beyond the control of the tenants excepted) and in the like condition (except as otherwise provided) to deliver up the same at the determination of the tenancy.

10. To permit the landlords and their agents together where necessary with workmen and appliances at all reasonable times on giving the tenants 24 hours' previous notice in writing to enter upon the demised premises for the purpose of painting the outside thereof and/or doing such external repairs or repairs to any part or parts of the said building as the landlords may deem necessary." It was urged by the petitioners that under the terms of these clauses the responsibility to repair the premises was on the tenant, but this was contested on behalf of the respondents. Clause 6 of the agreement clearly provides that the tenant will keep the demised premises and all the alterations and additions made to and in the same in good and tenantable condition and will deliver the same in like condition at the determination of the tenancy. It was urged by the learned counsel for respondent No. 1 that under clause 10 the responsibility to repair the external portion of the building was on the landlord, but after hearing the learned counsel for the parties it seems to me that in view of the clear terms of clause 6 of the agreement it cannot be doubted that the responsibility to carry out the repairs in the premises in dispute on the terms of the lease deed was on respondent No: 1 and the landlord had nothing to do with it. I will therefore proceed to consider the various points raised by the learned counsel for the parties on the finding that under the terms of the lease deed the responsibility to carry out the repairs was on the tenant. Mr. A. M. Khan, the learned counsel for the petitioners, has urged before us that once it is accepted that the responsibility to carry out the repairs of the demised premises is on respondent No. 1, the Rent Controller had no jurisdiction under section 6 of the Karachi Rent Restriction Act to call upon the petitioners to carry out the repairs and on the failure of the petitioners to do so was not competent to sanction Rs. 3,000 for the repairs of the premises in dispute. The argument of the learned counsel for the petitioners is that section 6 of the Karachi Rent Res triction Act, 1953, is applicable only to those cases where the terms of the tenancy make no provision for the repairs of a building let out, but if the terms of the tenancy impose the responsibility to carry out the repairs on the tenant, section 6 has no application to such cases. In support of his contention the learned counsel for the petitioners argued that under the provisions of the Karachi Rent Restriction Act wherever the Legislature wanted to modify the terms of the tenancy it has specifically stated so and the general scheme of the Act is that the agreement between the parties, unless a contrary provision is made, is to be respected. The learned counsel referred me to section 7 (b) of the Karachi Rent Restriction Act, 1953, to show that the Legislature has forbidden any agreement for the payment of rent in excess of the fair rent and specifically provided that it shall be null and void in respect of such excess and shall be construed as an agreement for the payment of fair rent. He then invited my attention to section 10 of the Rent Restriction Act to show that the Legislature further provided that no order for the recovery of the possession of premises shall be made by any Court so long as the tenant pays or is ready, and willing to pay the rent payable under the said Act and performs the `other conditions of the tenancy., He emphatically argued that the very fact that section 10 enjoins upon the tenant to perform the other conditions of the tenancy clearly supports his argument and makes it perfectly plain that the terms of the tenancy are to be respected unless they are forbidden by the Act itself. On the other hand, the learned Additional Advocate‑General, Mr. Raymond and Mr. Sayeed Muhammad Hafeez, the learned counsel for the respondents have strongly urged before us that any terms and conditions of the tenancy which are inconsistent with the provisions of the Karachi Rent Restriction Act cannot be considered to be the terms and conditions of the tenancy and override the provisions of the enactment. The learned counsel for the respondents in this connection has invited my attention to section 26 of the Karachi Rent Restriction Act which provides as under :‑ "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment for the time being in force." Mr. Khan, however, pointed out that this section only says that the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment and does not say that they shall have effect notwithstanding anything inconsistent therewith contained in any agreement between the parties. The sole question for determination therefore in this case is what is the effect of the term and condition of a tenancy which Axes the responsibility o#' the tenant to repair the premises on section 6 of the Karachi Rent Restriction Act, which is in the following terms :‑ "A tenant may, after notice to the landlord, make necessary repairs or repairs usually made to premises in the locality and deduct the cost thereof from the rent (a) Such cost shall not exceed one and a half per centum of the total cost of construction within the meaning of clause (c) of subsection (2) of section 2, and (b) the previous permission of the Rent Controller shall be obtained to the making of the repairs." I have given my anxious consideration to the arguments advanced by the learned counsel for the parties on the point under con sideration. It will be noticed that section 6 allows the tenant, after notice to the landlord, to make necessary repairs or repairs usually made to the premises in the locality and deduct the cost thereof from the rent, provided that such cost shall not exceed one and a half per centum of the total cost of the construction within the meaning of clause (c) of subsection (2) of section 2, and the previous permission of the Rent Controller is obtained. The language of section 6 does not provide that the tenant will make demand for such repairs only which are permitted under the terms of the tenancy, but makes a general provision that he will be entitled to call upon the landlord to make necessary repairs or repairs usually made to the premises in the locality and imposes no further restrictions. In my opinion, on the plain language of section 6 of the Rent Restriction Act, the right of the tenant to ask the landlord to make necessary repairs in the demised premises is not dependent on the terms of the tenancy. It is admitted at the Bar that if anything is contained in any enact ment contrary to this provision of law, it will not affect it. Under the Transfer of Property Act the responsibility to carry out the repairs of the premises let out is on the tenant and therefore it is quite plain that section 6 of the Karachi Rent Restriction Act overrides the provisions of section 108 of the Transfer of Property Act in this respect. But it was vehemently argued before us that though section 108 of the Transfer of Property Act has been set at naught, yet an agreement between the parties is not affected by this provision of law. In my opinion this argument cannot stand scrutiny of close examination. At this stage I would like to point that radical changes were introduced in the relationship between a landlord and tenant by Act VIII of 1953 (Karachi Rent Restriction. Act). It laid down a formula whereby the fair rent of the tenements will be fixed and also provided for a permitted increase in relation to different categories of premises. Section 2 (2) (a) deals with the fixation of fair rent of residential premises constructed before the 15th day of August 1947 ; section 2 (2) (b) deals with fair rent of non‑residential premises constructed before the 15th day of August 1947 ; section 2 (2) (c) deals with all kinds of premises constructed after the 15th day of August 1947 ; and section 2 (4) deals with the question of permitted increase and provides the formula applicable to different types and categories of premises. The fair rent in certain cases not only includes the rent at which the premises were leased out but also adds with it the permitted increase. Section 2 (2) (c) provides that the Rent Controller in fixing the fair rent of the premises after the 15th day of August 1947 will see that such rent shall secure to the landlord a net return of 6% per annum of the total cost after deducting the taxes, insurance premium and an amount of one and a half per centum of the total cost for expenses for maintenance and repairs. It further provides that the total cost shall include the value of the land and the cost of the construction of the premises. There is no doubt that in fixing the fair rent of the premises constructed after the 15th day of August 1947, the landlord is given an allowance for expenses for maintenance and repairs of the premises. Now coming to the question of permitted increase, it will be noticed that here also the Legislature has taken into consideration the amount spent in necessary repairs or repairs usually made in the premises in the locality. For instance in section 2 (4) (a) it is provided that in respect of those cases which are covered by clause 2 (a) (i) or clause 2 (a) (ii), the landlord is entitled to a permitted increase of 25% of the rent of the premises let on the first day of December 1941 etc. and is further entitled to an amount not exceeding seven and a half per centum of the cost of any addition, improvement or alteration (not included in necessary repairs or repairs usually made to premises in the locality) at the landlord's expense. The same formula is followed in section 2 (4) (b) and section 2 (4) (c). It is therefore quite obvious to me that the Legislature in laying down a formula for the fixation of fair rent has kept in mind the expenses incurred on the necessary repairs or repairs usually made in the locality and which throughout is considered as the responsibility of the landlord. It is in this light that one should consider the pro visions of section 6 of the Karachi Rent Restriction Act. I may point out that the fair rent can be fixed in all the cases including those where there exist a written agreement between the parties or otherwise. Thus in the present case also if any of the parties wanted to have fair rent fixed, they could go to the Rent Controller and get it fixed on the formulae or principles indicated above. It is therefore quite clear to me that section 6 of the Karachi Rent Restriction Act applies to all tenancies and is applicable to all cases whether there is any agreement between the parties in respect of the repairs of the premises or not. I will now examine the various arguments advanced against this view. The argument of Mr. Khan that section 10 of the Karachi Rent Restriction Act, namely that the tenant is entitled to remain in occupation of the premises as long as he is ready and willing to pay the rent payable under the Act and performs the other conditions of the tenancy, impliedly keeps the term of the agreement alive, has not in the least impressed me. The weakness of this argument can be demonstrated in so many ways. Now section 10 (1) provides, that except in those cases where the landlord had obtained a certificate from the Rent Controller, no order for recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under the Act and performs the other conditions of the tenancy. If the argument of Mr. Khan is accepted, the provisions of section 10 will become nugatory in those cases where the lease deed provides that the tenant shall vacate the premises on the termination of the tenancy either by a notice or by efflux of time because after all it is a term and condition of the tenancy and apparently there is nothing inconsistent to it in this subsection, but this is not the object of the Act. This subsection is governed by subsection (2) which provides the circumstances in which a landlord can eject his tenant after obtaining a certificate from the Controller. The object of the Act is to create statutory tenancies and the idea behind it is that if the tenant pays the rent regularly and also performs the other conditions of the tenancy which are no inconsistent with the provisions of the Act, he is entitled to remain in occupation of the premises. Mr. Khan argued that there is nothing in section 10 to say that the conditions of the tenancy should not be inconsistent with the provisions of this section. In my opinion this is an implied term of section 10 of the Karachi Rent Restriction Act. A similar situation arose in an English case reported in Artizans, Labourers and Gener al Dwellings Company, Limited v. Whitaker ((1919) 2 K B 301). There also it was argued that one of the conditions of the tenancy was that the tenant would go out of the premises the moment the tenancy had come to an end and as there was nothing inconsistent in the provisions of the enactment, the tenant could be evicted. Astbury, J. while dealing with this question, observed as under: "As such he was, I think, a "tenant" within section 1 subsection (3) of the 1915 Act, and except in the cases therein referred to no order for recovery of possession can be made against him so long as he continues to pay rent at the agreed rate, and so long as he performs the other conditions of the tenancy. He has paid his rent and performed the other conditions except the condition for giving possession at the expiration of the tenancy. That condition raises a difficulty, but it is clear that, if the landlord had given notice, and the tenant had refused to give possession in compliance with the condition, the Act would have applied. Otherwise the section would be more or less a nullity. I do not think. I am at liberty to read the section differently where the tenancy has expired by the tenant's act. It may seem whimsical that an Act passed for the relief of tenants should apply when the tenant has himself put an end to the tenancy ; but the language admits of no other construction." This decision was approved by the Appellate Court in two English decisions in Barton v. Fincham ((1921) 2 K B 291) and Remon v. City of London Real Property Company Limited ((1921) 1 K B 49). Scrutton, L. J. in (1921) 1 K B 49 at page 57 commented on the above mentioned decision and observed as under :‑ "Under the original Acts the statutory tenant was allowed to stay if he `performed the other conditions of the tenancy'. But one of those conditions might be to give up the premises at the expiration of the tenancy by agreement. To insist on this as a condition would be to render the whole Act nugatory, and Astbury, J. in Artizans Dwellings Co. v. Whitaker (1919) 2 K B 301 held that this part of the conditions of the tenancy was inapplicable.' Similarly, in (1921) 2 K B 291 the same Lord Justice at page 297 observed: "One of these facts is that an obligation of the tenancy so far as the same is consistent with the provisions of this Act, has been broken. This qualification was necessary, for every tenancy contains an obligation to deliver up possession at the end of the tenancy, of which obligation staying in possession is a breach. The qualification was not contained in the Act of 1915, but was held, I think rightly, by Astbury, J. in Artizans Dwellings Co. v. Whitaker (1919) 2 K B 301 to be necessarily implied, as without it the whole subsection would be meaningless." In Regional Properties, Limited v. Osley ((1945) A C 347) a tenant urged that the proviso in the tenancy agreement for giving him credit on punctual payment was not inconsistent to section 15 of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. But the House of Lords rejected this contention and held it was not consistent with the provisions of the said enactment and the tenant was no longer entitled to its benefit. It will be profitable to reproduce the observation of Lord Simonds in this respect at page 359 of the report: "This is the simple issue in the case. The Act in effect says that the tenant shall pay a rent of

901. With permitted increases, which may for this purpose be disregarded ; the original contract of tenancy says that he shall pay a rent of 901, with the qualification that it shall be reduced upon punctual payment. Are these two obligations the same or different? If they are different, there is an inconsistency and the obligation imposed by the Act must prevail. It is to my mind clear that they are different. An irreducible rent and a rent reducible in a certain event are not the same thing from the point of view of either landlord or tenant. It cannot, in my opinion, make any difference whether the provisions for reduction is found in the so‑called addendum or in some other part of the document. Wherever it is found it operates to qualify a rent which the Act imposes without qualification. The conventional must give way to the statutory provision." I am, therefore, clearly of the view that though there is nothing in section 10 that the terms and conditions of the tenancy should be consistent with the Act but this is inherent in it and should be considered as one of its implied terms. As indicated by Lord Russel of Kellowen in the last mentioned case the true question to ask oneself in a case like this is, will the importation of this term into statutory tenancy affect in any way the provisions of section 6 ? If it does, it is not consistent with the provisions of the Act. In my opinion the only answer to this question is that clause 6 of the agreement of tenancy is inconsistent with section 6: I may further refer to section 26, Karachi Rent Restriction Act, which specifically provides that the provisions of the enactment shall have effect notwithstanding anything contained in any other enactment. Now it is needless to point out that an agree ment of tenancy is only enforceable under the provisions of the Contract Act and Transfer of Property Act. It therefore appears to me that the contract of tenancy is clearly affected by this overriding provision of law. This view is fortified by the observations of an Indian decision reported in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. (A I R 1959 S C 689). In that case an argument before the learned Judges of the Supreme Court of India was advanced that as the subletting was permitted under the contract between the parties, it would prevail on the prohibition contained in section 15 of the Bombay Hotel and Lodging House Rates Control Act, 1947. Kapur, J. repelled this contention and observed that this will apply to contracts also as all contracts would fall under the provisions of the law relating to contracts, i.e. the Contract Act. Moreover, it is an elementary principle of interpretation of statutes that a provision of law should be construed in .a way which best harmonises with the context and with every other part and which promotes in the fullest manner the policy and objects of the Legislature. I have tested the petitioner's counsel's argument on this principle. It will be noticed that under section 2(2)(c), the standard (rent) of any premises constructed after August 1947 must be such as shall secure to the landlord a net return of six per centum per annum on then total cost after deducting the taxes, insurance premiums and an amount equal to one and a half per centum per annum of the total cost by way of expenses for maintenance and repairs. Thus in this way the landlord gets allowance for carrying out the repairs to the premises. It is not disputed that this clause applies to cases of written agreements. If that is so, it is inconceivable that the Legislature intended to give double relief to the landlord namely to get the standard rent fixed on this basis and also to enforce the clause of the tenancy fixing the responsibility of the repairs on the tenant. It is therefore not possible to accept the inter pretation of the petitioners counsel which will be most uncon scionable and defeat the object of the Act. The learned counsel for the petitioner, invited my attention to a decision of the Bombay High Court reported in D. N. Cooper and another v. Shiava Cowasji Combata and another (A I R 1949 Bom. 131 at p. 137) In that case the question was to reconcile two provisions of law and as explained by Chagla, C. J. in a subsequent decision P. D. Aswani v. Kavashah Dinshah and others (A I R 1953 Bom. 426), it is not an authority for the proposition that a party is entitled to contract out of the statute. I may also point out that in all the contemporary legislations on the subject under consideration, wherever the Legislature wanted to protect the interest of the landlord in respect of repairs it has been specifically so provided. For instance in the Assam Urban Areas Rent Control Act, 1949, The Bihar Building Act, 1947, Delhi and Ajmer Merwara Rent Control Act, 1947, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and East Punjab Rent Restriction Act, 1949, it is specifically provided that the landlord will carry out repairs only in those cases where there is no agreement to the contrary or the tenant has undertaken to do the repairs. The same is the position under the ‑English statute. There also the responsibility of repairing the premises in cases where the tenant has under taken to do it is not on the landlord. But in the only two Rent Restriction Acts applied to West Pakistan the responsibility of doing the repairs of the premises is on the landlord. This is evident from the provisions of the West Pakistan Urban Rent Restriction Act, 1958 and is also clear from the Punjab Urban Rent Restriction Act, 1947. It is possible that this position was also maintained in Karachi Rent Restriction Act, 1953. Having regard to the scheme and object of the Karachi Rent Restriction Act, 1953 and keeping in view the provisions of sections 6 and 26 of this enactment, I am clearly of the view that the responsibility to repair the premises in dispute is no longer on respondent No.

1. In my opinion the view taken by the learned Chief Judge, Small Causes Court, Karachi is in accordance with law and no exception can be taken to it. I therefore find no force in this writ petition and dismiss it with costs. QADEERUDDIN, J.‑This is a dispute between the landlord and tenant. The landlord relies on clause 2 (6) of the lease deed and contends that the tenant is liable to repair the demised premises. The tenant, on the other hand, relies on the evidence that repairs were made and promised to be made by the landlord, on clause 2 (10) of the lease deed and section 6 of the Karachi Rent Restriction Act, 1953. The evidence is not material for determining the rights and obligations of the parties, but the contentions based on clause 2 (10) of the lease deed and section 6, need examination. They are respectively that the landlord is liable to carry out repairs to the exterior of the building, and that the landlord has been made liable by the statute to make repairs irrespective of the agreement of the parties.

2. Clause 2 (10) merely deals with the right of the landlord to enter upon the premises for executing such external repairs as may be deemed necessary by it. It is, therefore, not a covenant which can be said to modify clause 2 (6) of the lease deed. Under the latter clause, the tenant is liable to keep the premises "in good and tenantable repair and condition." This covenant is of a wide import, and leaves no doubt that the parties had agreed that the responsibility of repairs was entirely of the tenant. I, therefore, agree with my brother Wahiduddin Ahmed, J. that the only issue to be determined in this writ petition is as to what is the effect of section 6 of the Karachi Rent Restriction Act, 1953 on this covenant.

3. Before proceeding to discuss this issue, I may mention that the lease deed was executed in February 1945 for a period of 15 years commencing from the 13th of September 1943. The period of the lease, therefore, expired on the 13th of September 1958. There was no provision equivalent to section 6 in the Rent Acts which were in force at the time of the commencement of the lease, or up to the time of the enforcement of the Karachi Rent Restriction Act in 1953, but there were provisions in the Rent Acts which were in force before the Karachi Rent Restriction Act, 1953, relating to the fixation of the fair rent, yet neither party has to this day questioned the rent that was fixed by the lease deed. The rent agreed between the parties is Rs. 850 per month for the first four years, and Rs. 1,000 per month for the remainder of the period. This rent was obviously considered by the parties to be such as to make the tenant responsible for carrying out repairs. It is important to note this view of the parties and the fact that the fair rent has not been fixed because section 6 of the Karachi Rent Restriction Act, 1953, on which reliance is placed on behalf of the tenant, refers to clause (c) of subsection (2) of section 2 of the Act of 1953, which clause lays down the formula for fixing the fair rent in relation to the premises which were constructed after the 15th of September 1947. The first question, therefore, which arises for consideration is whether section 6 is applicable to those premises, which were existing before the 15th day of August 1947, and whether it is applicable to those cases in which the fair rent has not been fixed.

4. For considering this question, I should better reproduce section 6 here, although it has been reproduced by Wahiduddin Ahmed, J. in his judgment. It is as follows :‑ "A tenant may, after notice to the landlord, make necessary repairs or repairs usually made to premises in the locality and deduct the cost thereof from the rent: Provided that‑ (a) such cost shall not exceed one and a half per centum of the total cost of construction within the meaning of clause (c) of subsection (2) of section 2, and (b) the previous permission of the Rent Controller shall be obtained to the making of the repairs." As clause (a) of the proviso to the above section fixes the maximum amount of repairs at 1 % of the total cost of construc tion "within the meaning of clause (c) of subsection (2) of section 2," it is necessary to examine the latter clause in order to understand the total effect.

5. The latter clause, namely, clause (c) of subsection (2) of section 2 of the Act is as follows :‑ "(2) `Fair rent' means‑ (b) . . . . . . . (c) in relation to all premises, residential or otherwise, constructed after the 15th day of August 1,947, such rent as shall secure to the landlord a net return of six per centum per annum on the total cost, after deducting the taxes, insurance premium for insurance against fire and. earthquake but not otherwise and an amount equal to one and a half per centum per annum of the total cost by way of, expenses for maintenance and repairs: The total cost shall include the value of the land and the cost of the construction of the premises ."

6. The meaning of the expression "total cost" as given in the last sentence of the above clause is not complete, because it is provided earlier in the clause that "total cost" is to be calculated after "deducting the taxes, insurance premium for insurance against fire and earthquake but not otherwise." This means that there is no definition of the expression "total cost" in the above clause, except with reference to the fixation of the fair rent. In fact, clause (a) of the proviso to section 6 does not refer to a definition of this expression, but refers to the total cost of construction "within the meaning" of clause (c) of sub section (2) of section

2. This means that the whole of clause (c) of subsection (2) of section 2 should be taken into consideration. There are good reasons for referring to the whole clause, because they are corresponding provisions. They are 'corresponding provisions because one and a half per cent of the total cost of construction is granted as a part of the fair rent to the landlord in relation to the premises, which were constructed after the 15th day of August 1947, by way of expenses for maintenance and repairs and the same amount is allowed by clause (a) of the proviso to section 6 to be utilised by the tenant at the landlord's expense towards repairs. It would be erroneous both from the point of view of the language of clause (a) of the proviso to section 6 as well as the meaning of clause (c) of subsection (2) of section 2 of the Act that one and a half per cent of the total cost should be allowed to the tenant towards the repairs without correspondingly allowing that amount to the landlord as a part of the fair rent. If a tenant is not paying to the landlord 7 per cent of the total cost according to the formula of the fair rent laid down in clause (c) of subsection (2) of section 2, and is merely paying rent at such a rate as was considered by the parties themselves to be so low that the tenant should be responsible for carrying out the repairs, then it would be erroneous within the meaning of clause (c) of subsection (2) of section 2 that in spite of such rate of rent, one and a half per cent of the total cost of construction should be paid by the landlord instead of the tenant towards repairs: I am, therefore, of the view that section 6 applies to those premises which are covered by clause (c) of subsection (2) of section 2 ; in other words, to those premises which were constructed after the 15th of August 1947, and the' fair rent of which has been fixed. In this case, the premises question were not constructed after the 15th day of August 1947, and the fair rent has not been fixed ; therefore, section 6 of the Act is not applicable.

7. The Rent Controller and the Chief Judge, Small Causes Court Karachi have erroneously applied section 6 to the facts of this case. The error lies not only in applying a provision, which was not applicable, but also in applying it without complying with its terms. Its terms have not been complied with, because one and a half per cent of the total cost of construction was to be found out, but this has not been done. The Rent Controller could require the landlord to produce books of account, documents and other information relating to the premises under section 19 of the Act to find out the cost, but relying on the omission of the parties to produce any architect, engineer or estimate, has proceeded to estimate the "value" of the premises arbitrarily. The value of a premises s quite different thing from its cost, because the cost of con struction of a premises means the expenditure incurred on constructing it, whereas the value of a premises depends on the prevailing market at a given time. All that the Rent Controller has said in support of his valuation is as follows :‑ "None of the parties have produced any architect, engineer or estimate regarding the value of the premises. The only course left to me is to rely on my own estimate which is Rs. 2,00,000 only." This value is obviously based on the agreed rent of Rs. 1,000 per month capitalised at six per cent of interest. The Rent Controller has thus argued in a circle, taking his stand on the agreed rent and making calculations of a presumption that the agreed rent has secured to the landlord 7 per cent of the cost of construction, as provided in clause (c) of subsection (2) of section 2 of the Act. Really speaking, the foundation on which the calculations could rest was not existing, because the cost of construction was not found out. Additionally, the calculations were erroneous because the agreed rent of Rs. 1,000 per month is equal to six per cent of two lacs of rupees, and does not secure to the tenant the additional one and a half per cent for maintenance and repairs.

8. In the above view, the writ petition should succeed irrespective of the question whether section 6 of the Act nullifies contractual rights relating to the responsibility of the tenant to carry out repairs or not. I accordingly accept the petition with costs, and quash the orders of the Additional Rent Controller and the Chief Judge, Small Causes Court dated the 26th of February 1958 and the 20th of November 1958 respectively. WAHIDUDDIN, J. (11‑4‑1.961)‑The Deputy Registrar has placed before me a judgment of Qadeeruddin Ahmad, J. in the above‑mentioned matter duly signed for pronouncement. My brother has accepted the writ petition on the following grounds: (1) That section 6 of the Karachi Rent Restriction Act, 1953, applies to those premises which are constructed after the 15th day of August 1947 and the fair rent of which has been fixed and does not apply to the present case. (2) The amount allowed by the Rent Controller for repairs was not in compliance with the terms of section 6 because 1 % of the total cost of construction was to be found out, but this has not been done. It would thus be noticed that my brother has not expressed any opinion on the main question argued before the Bench, namely, whether section 6 nullifies contractual rights relating to the responsibility of the tenants to carry out repairs or not, but has based his judgment on entirely new grounds. I have gone through my note book and find that none of these grounds was raised in the opening address of the learned counsel for the petitioner. These grounds are also not raised even in the writ petition. In reply to the arguments of the learned counsel for the opponents, Mr. Khan made an attempt to show that section 6 will not apply to those cases where fair rent is not fixed and also urged that the amount of Rs. 3,000 allowed for the repairs was fixed in an arbitrary manner. But as these points were not raised in the opening address they could not be considered in support of the writ petition. I, therefore, refrained from expressing my opinion on these vague grounds, but my brother Qadeeruddin Ahmad, J. has based his judgment on them. In an effort to find out an agreement with my brother I have considered the views expressed by him in the judgment sent for pronouncement. With utmost respect, I am not inclined to share the views expressed by him on the above‑mentioned points. My reasons for coming to a different conclusion are as under :‑ So far as the second ground that the learned Rent Controller fixed the amount of Rs. 3,000 in an arbitrary manner is concerned, except a casual reference in ground No. 5, no particulars on this question are given in the writ petition. A perusal of the order of the learned Chief Judge, Small Causes Court, in Revision Application No. 72 of 1958, dated November 1958, shows that the amount allowed for repairs was not disputed before him. The learned Chief Judge, Small Causes Court, in that connection has observed as under: "The learned Rent Controller has properly sanctioned the amount of repairs about which there seems no dispute." In the writ petition itself also this point, as stated earlier, has not been raised. My brother, however, has gone into this question and considered also the basis on which the amount of Rs. 3,000 was fixed by the Rent Controller. The order of the Rent Controller does not in the least show how he has arrived at the conclusion that the estimated value of the cost of the building in occupation of opponent No. 1 is Rs. 2,00,000 but in spite of this my brother seems to hold the view that it must have been calculated on the basis of 6% on the monthly rental value of Rs. 1,000 and as 1 % allowed for repairs for calculating the cost of properties constructed after the 15th day of August 1947, has not been added to it, it violates the provisions of section 6 of the Karachi Rent Restriction Act. In the absence of any indication to this effect in the order of the learned Rent Controller, it is difficult for me to arrive at any such conclusion because in doing so we will be embarking on conjectures and surmises on questions of fact which, as pointed out by their Lordships of the Supreme Court in several cases, should not be resorted to in matters coming up for consideration on a writ of certiorari. According to the terms of the lease‑deed, the rent up to 12‑9‑47 was to be paid at Rs. 850 per month and thereafter at Rs. 1,000 p.m. So it cannot be ruled out that the Rent Controller might have calculated the cost of the premises in dispute on the basis of the rent at which it was first let out and if that is the case there can be no violation of the provision of section 6 even if the formulae is applied as held by my brother. Thus if the matter is considered in this light, in my opinion, it would be pure conjecture unless there is any evidence on the record to come to such a conclusion that the amount of Rs. 2,00,000 fixed as the total cost of the construction is based on the monthly rent of Rs. 1,000 or on the monthly rent of Rs.

850. I am, therefore, not inclined to hold that the learned Rent Controller has not taken into consideration 1 % supposed to be allowed for repairs in calculating the total cost bf the premises. It may be pointed out that both the parties did not lead any evidence before the Rent Controller about the total cost of construction required to be fixed under the proviso to section

6. The petitioner must be in possession of all the relevant material, and if he failed to produce them or did not choose to produce, he cannot take advantage of his own negligence. In my opinion, in such cases the learned Rent Controller is entitled to rely on his own estimate of the total cost of the premises in dispute, and it is not open to any party to suggest that the Rent Controller acted in an arbitrary or capricious manner. Therefore, with utmost respect, I do not agree with my brother on this aspect of the question. Coming to the first ground viz. whether section 6 applies only to those cases where the property is constructed after the 15th day of August 1947, with respect I will point out that no such condition is laid down in the section. As observed by me earlier in the main judgment, section 6 is a general provision of law. It permits a tenant, after notice to the landlord, to make necessary repairs usually made in the locality and deduct the cost thereof from the rent provided that such cost shall not exceed one and half per centum of the total cost of construction within the meaning of section 2 (2) (c) and the previous permission of the Rent Controller has been obtained. It will be noticed that sub‑clause (a) of section 6 of the Karachi Rent Restriction Act is added as a proviso and reads as under:‑ "Provided that‑ (a) such cost shall not exceed one and a half per centum of the total cost of construction within the meaning of clause (c) of subsection (2) of section 2." That is to say the Legislature thereby prescribed a formula on the basis of which the cost of the repairs shall be calculated. Now the total cost is defined in the last portion of section 2 (2) (c), which is in the following terms :‑ "The total cost shall include the value of the land and the cost of the construction of the premises." It does not say how the cost of the construction of the premises will be calculated, but even if it is taken that the cost of the construction of the premises should be calculated on the same basis as indicated in section 2 (2) (c), namely, that it will secure to the landlord a net return of 6% per annum on the total cost after deducting the taxes, insurance premiums and an. amount equal to 1 % of the total cost for maintenance and repairs, it does not follow that section 6 only applies to those cases where the premises are constructed after the 15th day of August 1947. There is no such restriction or condition imposed in section 6 and it is difficult to appreciate how a mode prescribed for calculation of cost given in a proviso can override the operative part of the section. It is a well established principle of interpretation of statutes that a proviso should not be inter preted so as to have greater effect than strict construction of the proviso rendered it necessary. Ordinarily the proviso is some‑ L thing subordinate to the main clause, and generally what ii contained‑ in the proviso is not to be imported by implication into the clause. In West Derby Union v. Metropolitan Life Assurance Society ((1897) A C 647), Lord Watson said: "I am perfectly clear that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implica tion from a proviso." Moreover, what prevented the Legislature, if that was its intention, to say in the operative part of section 6 of the Karachi Rent Restriction Act that a tenant can approach the Rent Controller for the repairs of the premises only in those cases where the premises are constructed after August 1947. The very fact that this is not stated in the operative part of the section clearly shows that the proviso does not govern it. The proviso to section 6 lays down condition precedent for carrying out the repairs by the tenant. It points out that it should not exceed 1 % of total cost of the premises, and to find out what is total cost directs the Rent Controller to refer to its definition in section 2 (2) (c), that is to say, it includes both the cost of the construction of the premises and the value of the land on which it is constructed and nothing more. Otherwise there was no idea in using the words "within the meaning of section 2 (2) (c)" in the proviso. I am therefore, clearly of the view that section 6 applies to all tenements whether constructed before or after) August 1947. I also find no ground to hold that section 6 only applies to cases where fair rent has been fixed. There is no such condition laid down in the section or proviso. To construe the provisions of section 6 in such manner would be performing the duties of the Legislature by adding something which is not in it. In these circumstances, I do not find myself in agreement with the conclusions reached by my brother Qadeeruddin Ahmed, J. As the Judges of the Division Bench in this writ petition are divided in their decision to be given in this matter on the above‑mentioned two points, the office is directed to place the case before the Senior Judge for nominating one or more of the Judges as he deems fit for the decision of the points on which difference has arisen in this case. INAMULLAH, J.‑This matter has come before me as a result of difference of opinion between two Judges of this Court. The facts necessary for disposal of this matter are very simple and briefly put are these :‑ Messrs United Commercial Bank, respondent No. 1 occupied the ground floor of a building known as "Bombay Life Building" situated in Serai Quarters, Karachi. The petitioner, Messrs Life Assurance Corporation of India are the landlords of Messrs United Commercial Bank. Messrs United Commercial Bank moved the Rent Controller of Karachi under section 6 of the Karachi Rent Restriction Act, 1953 to call upon the petitioners to carry out repairs in the premises in their occupation and in the event of their failure to do so to allow them to carry out the same. The learned Additional Rent Controller allowed the respondent No. 1 to carry out the repairs to the extent of Rs. 3,000.

2. The petitioners filed a Revision Application to the Small Causes Court, Karachi against the order of the Rent Controller which was dismissed. They thereafter filed a writ petition in this Court for quashing the orders of the Rent Controller and that of the Chief Judge, Small Causes Court. My learned brother Wahiduddin, J. after considering the points urged before him, dismissed the petition, while my learned brother Qadeeruddin, J. after considering the points that were not urged by the petitioners, as it would appear from the judgment of Wahiduddin, J. allowed the petition.

3. It would appear from the order of Wahiduddin, J. dated the 11th of April 1961, that there is a difference of opinion on two points namely :‑ (1) Whether section 6 of the Karachi Rent Restriction Act 1953 applies only to those premises which were constructed after the 15th of August 1947, and whose fair rent has been fixed and not to the present premises ; (2) that the Rent Controller in allowing the amount of Rs. 3,000 as cost of the repairs did not conform to the terms of section 6 of the Rent Restriction Act 1953 inasmuch as the Rent Controller did not find out 1 per cent of the total cost of the construction of the building within the meaning of clause (c) of subsection (2) of section 2 of the Rent Restriction Act 1953.

4. I agree with Wahiduddin, J. that the amount of Rs. 3,000 as cost of the repairs not having been challenged by the learned Advocate for the petitioners, this Court in the exercise of its writ jurisdiction could not suo motu deal with this question as a appellate or revisional authority. In the exercise of writ jurisdiction this Court could only consider points that may have been not on raised but urged before it. There are points that were raised in the petition but at the time of argument are given up. It would appear from the order of Wahiduddin, J. that the only point that required consideration was the effect of section 6 on the terms of the lease deed under which the repair was to be carried on by the tenant. Qadeeruddin Ahmed, J. while considering the terms under the lease deed between the petitioner and the respondent No. 1 regarding the repairs of the premises, observed as under :‑ "This covenant is of wide import and leaves no doubt that the parties have agreed that the responsibility of repairs was entirely of the tenant. I, therefore, agree with my brother Wahiduddin Ahmed, J. that the only issue to be determined in this writ petition is as to what is the effect of section 6 of the Karachi Rent Restriction Act, 1953 on this covenant. Moreover, when once the total cost arrived at by the learned Rent Controller which is a question of fact was not disputed by the petitioners before the Small Causes Court Judge, it cannot be challenged in a writ of certiorari.

5. In order to determine the import of section 6 of the Rent Restriction Act 1953 it would be necessary to reproduce section 6 of the Act. It runs as under :

6. Repairs by tenant.‑A tenant may, after notice to the landlord, make necessary repairs or repairs usually made to premises in the locality and deduct the cost thereof from the rent Provided that‑ (a) such cost shall .not exceed one and a half per centum of the total cost of construction within the meaning of clause (c) of subsection (2) of section 2, and (b) the previous permission of the Rent Controller shall be obtained to the making of the repairs. It would appear in the first place from a perusal of section 6 that the tenant has been given a right after notice to the landlord to make necessary repairs and to deduct the cost thereof from the rent. This right of the tenant is subject to two qualifications namely: (1) that the cost shall not exceed 1 per cent of the total cost of construction within the meaning of clause (c) of sub section (2) of section 2 ; (2) that the previous permission of the Rent Controller has been obtained to the making of the repairs. In the second place, it is also clear from sub‑clause (b) of section 6 that the Rent Controller may refuse to give permission to the repairs. Where an Act confers a power on an authority to give permission it impliedly also confers power to refuse permission. In the third place, section 6 does not in specific words confer any power on the Rent Controller to determine the cost of the repairs. In the fourth place, it would appear from a perusal of section 6 that the tenant if he were to incur more expense than 1 per cent of the total cost of construction he would do so at his own cost as he would not be able to recover the cost from the landlord. I may mention here that the Rent Restriction Ac does not provide any machinery if there is a dispute between the landlord and the tenant about the cost of the repairs. If the landlord were to dispute the amount of cost on the ground that it is not 1 per cent of the total cost of the construction within the meaning of clause (c) of subsection (2) of the Act, the Ac is silent as to the forum in which this could be settled. It may be the Civil Court. It is however not necessary for me to give my decision on this point.

6. The Rent Restriction Act is a special enactment. The provisions of the enactment would have force in spite of any agreement. The words "subject to any contract to the contrary" cannot be imported in section 6 of the Act. The well settled rule of interpretation of a statute is that it should be given its plain meaning without any addition of any word. Section 6 confers a right on the tenant and unless it was qualified by the words "subject to any contract to the contrary" it will have force even though there may be an agreement between the landlord and the tenant that the tenant would make the repairs. There is only one qualification on the right of the tenant to make the repairs. This right is subject to the previous permission of the Rent Controller. The Rent Controller however having power to grant permission has also power to refuse the same. The tenant, in other words, cannot claim absolute right to carry out the repair under section 6 of the Act. It is open to the Rent Controller under certain circumstances to honour the agreement between the landlord and tenant which fixes the liability to repairs on the tenant and refuse to grant permission to repair. It is a question of discretion with the Rent Controller which has no doubt to be exercised judicially whether to grant or refuse permission to repairs. In this case it appears from the judgment of my learned brothers that the discretion has not been challenged. All that was urged on behalf of the petitioners was that section 6 of the Rent Restriction Act does not affect the term under the lease deed under which the tenant was to effect the repairs.

7. The right of the tenant to repair cannot be limited to buildings which have come into existence after the 15th of August 1947. This would be against the spirit of the Act. The object is to confer a general right on the tenants subject to certain conditions to repair the premises in their occupation. If the object of the Legislature was to limit this right to buildings which were constructed: after the 15th August 1947, it would have been so mentioned. Moreover, it is the old buildings which require repairs rather than the ones constructed recently.

8. There is no indication in the section to limit the right of the tenant to buildings whose fair rent had been fixed. Clause (c) of subsection (2) of section 2 of the Act has to be referred only for the determination of the "total cost" of con struction and not for anything else. Sub‑clause (a) to section 6 of the Act does not make any reference to buildings whose fair rent has been determined by the Rent Controller.

9. I have mentioned above that the Rent Controller has not been conferred any power to determine the total cost under section 6 of the Act. He however can, while giving permission to the making of the repairs, indicate the limit up to which the tenant can make the repairs. This is what exactly the Additional Rent Controller has done. The Additional Rent Controller allowed the repairs to the premises "upto the amount of Rs. 3,000 only." It is conceivable that some of the old premises may require extensive repairs which may exceed the limit of 1 per cent of the total cost. The Rent Controller has therefore to grant permission to the making of the repairs under sub‑clause (b) of section 6 of the Act up to the limit of the amount permissible under sub‑clause (a) of section 6 of the Act. If he mentions the amount it cannot be said that he acts without jurisdiction.

10. I would, for the reasons given above, agree with Wahiduddin, J. and dismiss the petition, but would make no order as to costs in the circumstances of the present case. A. H. Petition dismissed.