P L D 1978 Karachi 316 (PLP)

(4) Are the defendants liable to pay any compensation for use and occupation of the bungalow in lieu of rent. If so, in what amount? (5) Relief. Before the recording of evidence, by the common consent of the parties, Messrs Naqvi & Siddiqui, a firm of Architects was appointed at Commis sioner to make a local investigation and inspection of the two bungalows for ascertaining the damages caused thereto with reference to Annexure XXII to the plaint and assess the cost of compensation thereof. The Commissioner submitted his report dated 3‑6‑1470 to which no objections were filed by the defendants and it was agreed between the parties that the report may remain on record to be disposed of at the final hearing of the suit. The parties have led oral evidence and have produced a number of documents. On behalf of the plaintiff Mr. S. M. Sohail, the husband and attorney of the plaintiff has been examined who has produced the two agreements executed between the parties and the correspondence exchanged between them. The plaintiff has also examined Mr. Sibtaln Sadiq of Messrs Naqvi and Siddiqui. Consulting Architects and Engineers, who acted as the Commissioner on the orders of the Court. The third witness on the side of the plaintiff was Syed Abbas Ali. Proprietor of Qwick Electric Service who were deputed by the Commissioner to estimate the electrical works required to be done in the two bungalows. On the side of the defendants only one witness Mr. Nazir Abmad, the Assistant Engineer Maintenance in the defendants' organisation was examined.

8. Issues Nos. 1 and 3 were not pressed by the counsel for the parties and therefore, the only remaining issues to be decided are Issues Nos. 2, 4 and 5.

9. Issue No. 2.‑As observed above in the plaint the claim for damages was based upon the particulars mentioned in Annexure XXII thereto which appear to have been based upon the assessment and estimate prepared by the private architect engaged by the plaintiff. However, during the course of the evidence and in the arguments, the plaintiff bases her claim solely on the report of the Commissioner (Exh. 1/41). The total claim for damages set up by the plaintiff when analysed consists of two parts, namely, (f) a claim for Rs. 15,400 on account of failure to carry out the work of distempering and painting of the wails, ceiling, wood and steel work expressly stipulated for in the appendices to the two agreements. which had to be done on two occasions viz. by : 1‑8.1961 and by 16‑5‑19691(11) a claim for Rs. 84.860 on account of the alleged damage done to the building, fitting and fixture, etc. during the period of tenancy. So far as the first mentioned claim is concerned, in my opinion, the same is not tenable inas much as the work contemplated and comprised therein would be duly covered by the second above‑mentioned claim which would be sufficient to restore the premises to their original condition. The works contemplated in the first mentioned claim were obviously intended to maintain the premises in good repair. The Commissioner's report has taken into account all the necessary repairs for restoration of the premises to their normal condition and if these works are carried out, obviously the promises would not require painting, etc. twice over. The perusal of Annexure I to the report of the Commissioner (Exh. 1/41) under the head of miscellaneous items has included the estimate for the work of distemper and painting contemplated under the first claim. The first mentioned claim therefore, stands rejected.

10. As regards the second claim pertaining to damages, the plaintiff relies solely on the oral evidence of two witnesses namely, Mr. Sibtain Sadiq (Exh. 2) and Syed Abbas Ali (Exh. 3) in support of the Commissioner's report (Exh. 1/41). The perusal of the report shows that the inspection of the premises was carried out in the light of the contents of the lease agreement between the parties which was furnished to the Commissioner by them. The Commissioner has carefully noted the material parts of the contents of the agreement while examining and assessing the damage. It would be pertinent to set out in the words of the report the result of the inspection by the Commissioner which Is in the following terms : "Daring the inspection it was observed that the buildings in question were kept in very unmaintained un kept condition. Evidence of some sort of installations having been erected inside and outside the rooms was also available. In one instance the foundation pads of the installations are still existing, inside the rooms, although the pads have been removed but there are distinct traces of these having bean erected on the mosaic floors. Surface wiring was installed for these installations which was removed when the buildings were vacated. After this process of fixing and removal, the walls need patching and repairs. Doors, windows and fly proofing throughout the two buildings are particularly in very bad condition. Some of the sanitary and electrical fittings have also been removed and the others are in very bad and unmaintained condition." The report then goes on to state that the detailed measurements of various items permissible according to the lease agreement were carried out and estimates prepared keeping in consideration the fair market rates. As regards the electrical installations, estimates were invited from two electrical con tractors mho carried out very detailed inspection of the premises and submitted their estimate for repairs to these installations. The estimates thus submitted by the electrical contractors were checked by the Commissioner and their correctness confirmed. In the final analysis the Commissioner estimated the cost of damage to be repaired as follows : (t) Damage of the fittings, fixtures etc. as per details contained in Annexure I ..... .... . .................................................... Rs. 25,316.00 (ii) Repairs ant! restoration of electrical works .... ....................................................... Rs. 9.000.00 (iii) Repairs and restoration of sanitary works .............................................................. Rs. 2.000.00 _______________ Rs. 63,316.00 ________________ In addition the Commissioner opined that a period of three months would be required to complete the repairs and estimated the rental returns for this period at Rs. 1.300 per unit per month which works out to a sum of Re. 7,800 Thus the total estimate of the work required to be done in the premises found by the Commissioner comes to Re. 71,116.

11. Annexure I attached to the report gives the detailed breakdown of estimate of damages in respect of the two bungalows. In this annexure each room and other parts of the buildings have been separately dealt with giving particulars of items missing, broken or damaged and then quantity, rate and the amount has been shown against each item. Mr. Sibtain Sadiq Naqvi, a partner of Messrs Naqvi and Siddiqui. the Architects has been examined in support of the report. He has stated that he personally Inspected the premises and submitted the report (Exh. 41) which correctly recorded his findings and the estimates. He has stated that generally replacements are made with new materials. In his cross‑examination the witness has stated that the report is based on the market price of new materials prevalent at the time of the report As regards the electrical installations, Syed Abbas Ali (Exh. 3) has been examined. He states that the normal wiring had been dislocated and replaced by temporary heavy duty wiring. This witness also admitted that the estimates are based on the price of new materials prevalent in the market at that time.

12. As against this evidence, the defendants have examined Mr. Nazir Ahmed who was Assistant Engineer Maintenance, incharge of maintenance and repairs of houses and building] rented by the defendants. This witness deposed that he used to carry out weekly checking of the disputed premises and used repair or rectify faults and also to replace the damaged items. He has specifically testified to have carried out the white‑washing, distempering and painting of the disputed premises departmentally in the year 1968. He admits that the defendants had carried out the surface wiring to bear the additional load of air conditioners for their experts in 1964. He further states that even after the service of notice by the defendants for vacating the premises, repairs and replacement of damaged items were carried out. In this connection he stated that he prepared indents for the aforesaid purpose. According to this witness, the premises were delivered to the plaintiff in the original condition fully repaired, painted, white‑washed and damaged items replaced. No documentary evidence, however, was produced by the defendants in support of their case that the works mentioned by their witness were carried opt. No vouchers for purchases of materials or accounts or other record was produced.

13. The perusal of the correspondence exchanged between the parties before the institution of the suit shows that the defendants did not categorically deny the damage or extent of damage claimed by the plaintiffs. In this connection reference may first be made to Exh. 1/28/1 which is plaintiff's Advocate's letter dated 10‑11‑1969 which makes a pointed reference to the joint inspection of the premises by the parties, representatives alongwith the architect. In para. 3 of this letter, it has been asserted that the inspection revealed that the "interiors of the two bungalows have been completely reduced to shambles and practically the entire work of finishing including the laying of large sections of the floor, plastering of walls, wood and iron works, electric works and plumbering works had to be redone; further distempering of all walls, ceiling and painting of all wood and steel structures had to be done; on the outside the Drive Way has to be resurfaced and the lawn to be relied". In reply to this letter the defendants through their advocate vide Exh. 1/29 dated 2‑12‑1969 did not repudiate the assertion of the plaintiff contained in the letter under reply, but merely stated that the ease required mutual discussion and requested for estimated cost of the alleged damage or loss. The correspondence further shows that the defendants offered to discuss the matter from time to time. In then evidence on the other hand, the case set up was that all the necessary repairs had been carried out before delivering the possession to the plaintiff: It was therefore, rightly argued on behalf of the plaintiff that if the damage h8 already been repaired, there was no question of discussion or negotiation between the parties and the defendants ought to have categorically repudiated the claim for damages.

14. Under Order XXVI, rule 10(2) of the Code of Civil Procedure the port of the Commissioner to whom the commission has been issued by re Court is to be treated as evidence in the suit, although it is not binding on the Court which may arrive at its own conclusion on the basis of the evidence on record. In Chandan Mall v. Chiman Lal (AIR1940PC ) it was observed that it is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted tie assertion of either party. It is significant that no objections were filed by the defendants when the report was submitted in Court. The Commissioner in this cape was an expert having special knowledge in the subject and there is nothing on the record which casts any doubt on his integrity or the findings regarding damage to the two buildings arrived at by him and recorded in his report. Thus both on principle and authority it would be Improper to reject his evidence on the issue.

15. It was however, contended by Mr. Mohsin Tayyabali that the report of the Commissioner is partly based on the enquiries made by the electrical contractors who were not examined in evidence. In this connection, as referred to above, the Commissioner did not simply adopt the estimates made by the said contractors, but as mentioned in para. 6 of report these estimates were checked by the Commissioner and were certified to be correct. There is, therefore, no substance in this contention.

16. On an overall consideration of the evidence on record, the conclusion is inescapable that the premises did sustain damage during the period they remained in occupation of the defendant. It was contended on behalf of the defendants that in order to succeed the plaintiff had first to show by evidence as to what was the condition of the buildings at the commencement of the lease and then to establish what damage vas caused to them. Counsel submitted that no evidence at all as to the first point was led at the trial and it was admitted by P. W. S. M. Sohail that no inventory was prepared as to the state of buildings at the time of initial ass or commencement of last lease period. Therefore, counsel went on to argue, it is not possible to hold that at the time of delivery of possession of the premises to the plaintiff, the buildings had sustained damage. It would be pertinent in this regard to refer to para. 14 of the lease agreement between the parties which stipulates that "the lessee small take full care and keep in proper repair the demised premises and all its fixtures and fittings and replace at its own cost fixtures and fittings that may be damaged become unserviceable by any act, default or negligence of the lessee". This stipulation in the contract leads reasonably to the inference that at the commencement of the lease the buildings were in normal habitable and tenantable condition. In other case before subscribing to euch a stipulation, the defendants were expected to Insist on incorporation in the deed of agreement of any damage or missing fixtures and fittings.

17. Be that as it may, it is well laid down that the term "tenantable repair" or cognate expressions used In a covenant for repair in a lease have been construed to create an obligation upon the lessee to maintain the demised premises in tenantable repair irrespective of whether at the commencement of tenancy, the premises were in tenantable repair or not. In Proudfool v. Hart ((1890) 25 Q B D 42), Lord Esher, M. R. after examining a number of relevant prece dents on the meaning and scope of the terns 'tenantable repair' observed : "The result of the cases seems to be this. The question whether the house was, or was not, is tenantable repair when the tenancy began is immaterial." The learned Judge then adopted definition of the term drawn up by Lopes, L . J, as follows ; "'Good tenantable repair' is such repair as, having regard to the age, character, and locality of the hou3e, would make it reasonably fit for the occupation of a reasonable‑minded tenant of the class who would be likely to take it." It is not the case of the defendants that the premises were not in a tenantable (pair at the commencement of the tenancy or that the same were old and worn out. Accordingly the most material consideration would be the state of the demised premises at the time of the termination of the tenancy in order to determine the question whether they are in good tenantable repair. The report of the Commissioner presents a very dismal picture of the buildings having been neglected and not maintained in propel repair. In their own evidence it has beep conceded by the defendants that the building was used by foreign experts at cane time and visualising the condition of the buildings in the light of the Commissioner's report. the balance of probabilities leans very heavily in support of the plaintiff's cafe that the buildings at the inception of the, lease ware in proper condition.

18. On the evidence, therefore, it bas been established that the defen dants are guilty of the breach of the covenant to repair as contained in paragraph 14 of the agreement referred to earlier. Even otherwise a lessee is under a statutory obligation to keep the demised property in as good condition as it was in at the time wren he was put in possession. subject to reasonable wear and tear or irresistible force This is provided by section 108(m) of the Transfer of Property Act which provides for rights and liabilities of lesser and lessee in absence of a contract or local usage to the contrary. A tenant is bound to take reasonable care of the property entrusted to him and see that through no neglect of his own it is irreparably damaged. The aforesaid enactment is based on the rule of English Law. Halabury in Volume 13 of Laws of England (Third Edition) at page 591 says that at common law the measure of damages was the same which it would take to put the premises In the state of repair in which the tenant ought, under the covenant, to leave them. The leading English decision on ibis proposition is Joiner v. Weeks ((1891) 2 Q B 31). This decision has been allowed in England although subsequently limits were imposed statutorily on the extent to which such damages could be recovered. See Jokes v. Herxheimber ((1950) 1 All E R 323). Even in India the role laid down in the case of Jokes v. Weeks was followed when the defendants avers held liable to pay damages for the breach of the covenant to repair. See Sarafali v. Subraya (1 L R 20 Bom. 439).

19. Applying this rule in the facts of the prevent case, it would appear that the measure of damages would be the cost of repairs to restore the property to a tenantable and a habitable condition. The plaintiff's case rests on the evidence of the Commissioner and his report (Exh. 1/41). Mr., Mohsin Tayyabali criticized the report and contended that the Commissioner has based his estimate on the value of new materials for the various items of fittings and fixtures. Counsel therefore strongly urged that the entire .evidence is liable to be thrown out as such basis is not a valid basis in law ‑for the assessment of damages. No authority, however, was cited at the bar in support of this proposition It appears to me that the wide proposition canvassed by the learned counsel cannot be sustained. The question whether the measure of the work done to restore a building to its original condition in terms of the covenant to repair is a question depending on the nature of .the damage caused slue to non‑repair and the condition of the building. But if a general proposition must be laid down, then the question can be determined by applying the rule that if the repair is necessitated for restoring the stability and safety of a subordinate part of the whole building, it would be covered by a repair covenant tar the lease agreement, whereas if the damage is so extensive as to require the reconstruction of substantially the whole subject‑matter of the demise, then it would amount to renewal as distinguished from repair. In the latter case obviously there would be no question of repairing the demised premise. This question was considered in the English case reported as Lurcott v. Wakely an4 Wheeler (191l) 1 K B

905. Their Lordships in this decision approved the view that repair does involve 1 .replacement with new material and that most repairs Imply that some portion of the total fabric is renewed. that mow is put in place of old. Applying the principles laid down in this decision and having regard to the nature of repairs found by the Commissioner and incorporated In his report, it is quite obvious that cost of repairs estimated in the report had to take into consideration the market price of new materials.

20. It was not urged on behalf of the defendants that the particular items of repair included in the schedule to the Commissioner's report were not such as could ordinarily be included within the term 'tenantable repair' as expounded above, except as to two hems. Firstly it was urged that there was no proof about the number of electric points and wiring or type of lampshades originally fitted in the premises. But the electrical contractor who prepared the estimates was not Put thin question in his cross‑examination. It is therefore, difficult to say whether the estimates of electric fittings were reasonable or rot. Ordinarily the opinion of the expert as to how many points existed cannot he rejected. It was next contended that under the sub‑head of miscellaneous items on page 9, the three items relating to distempering of walls and ceilings and painting on doors and windows. that estimated cost comes to Rs. 11,000, whereas the plaintiff herself had claimed' a total amount of Rs. 7,'100 for these items in her latter dated 20‑9‑1968 (Exh. 1/8). This fact was not brought t:) the notice of the Commissioner In his cross‑examination. However, the plaintiff cannot he granted, in respect of the items more than what she herself claimed prior to the filing of the suit. Except these items, therefore, there is nothing in the report of the Commissioner which can be rejected as not being the cost for bringing the demised premises to proper state of repair. 21, I have therefore reached the conclusion that the plaintiff has established by sufficient evidence that the defendants caused damage to the property in question and the fittings and fixtures before the termination of the lease. Accordingly the issue No. 2 is answered in the affirmative.

22. Issue No. 4.‑Under the terms of the lease agreement the tenancy .expired on 16‑5‑l

969. As observed earlier, the agreement reserved a right to renewal at the option of the defendants. But before the expiry of the lease differences arose between the parties as regards the special terms of the contract subsequently annexed to the agreement regarding painting etc. The plaintiff's case in the plaint is that the defendants wrote to her that they would vacate the premises on 5‑11‑1969, but the plaintiff refused to accept delivery of the premises on the plea that the same must be restored to a proper state of repair in terms of the demise agreement. However, the defendants assert that they did va4mta the promises on the aforesaid date and since the plaintiff's representative refused to accept the keys the same were despatched to her by registered post on 12‑1‑1910. The defendants further plead that by cheque dated 3‑10‑1469 for Re. 14,691.39 they have cleared the rent dues upto the date of delivery on 5‑11‑1969.

23. The plaintiff claims compensation for use and occupation from 17‑5‑1969 to 28‑2‑1970 amounting to Re. 24, 700 at the rate of Rs 2,600 per month less Rs. 14,691.39 paid by cheque by the defendants. Thus the claim of the plaintiff for the aforesaid period on this account comes to Rs. 10,008.61. In addition the plaintiff claims months' rent as compensation in lieu of notice as contemplated by para. 11 sub‑clause (a) of the Tenancy Agreement. The plaintiff also prays for future rent at the agreed rate of Re. 2,f00 from 1‑3‑1970 until the possession is delivered to bar.

24. It was conceded on behalf of the plaintiff that the possession was delivered to her during the pendency of the suit on 1‑7‑1970. The plaintiff s contention that she was justified in ref‑dog to receive possession until the repairs were carried oat is quite untenable in law. A lessor cannot refuse possession on the termination of the lease on such a plea and continue to charge rent until the premises are restored to proper state of repair. The breach of the covenant for repair is a breach of contract and therefore the aggrieved party would be required to mitigate the damage by accepting the possession and carrying cart the repairs himself, to be claimed from the lessee. It is not denied that the defendants had unequivocally offered; to surrender possession on 5‑11‑1959. Therefore, the Plaintiff was only; entitled to rent upto that period. Admittedly the plaintiff has received rents for the entire period until 5‑11‑1969. As regards the claim for 2 months' rent in lieu of notice, also the claim of the plaintiff is not sustainable as para. 11(a) of the lease agreement cannot be construed to give the right of compensation to the plaintiff in the manner urged. The lease ways for a fixed term of one year from May, 1968 to May. 1969 and therefore. on the expiry of the period. the lease is deemed to have determined by efflux of time.' In this context, the stipulations contained in pare. 1l(a) of the contract required the defendants to renew the, lease at their option on a yearly basis. The stipulations further provided that if the leases do not wish to renew the lease, 2 months' prior notice shall be given to the lessor in writing. It is nobody's case that the defendants exercised this option. If therefore, the lease was determined by efflux of time. there would be no question of notice for refusal to avail of the option for renewal. There is no other provision is the agreement providing for automatic renewal of the lease in case of failure to give notice on the part of the lessees either for renewal or otherwise. The claim for compensation in lieu of notice is therefore not consistent with other terms of the lease agreement. In the circumstances, therefore, this claim is rejected. The claim under consideration under this issue is accordingly not justified.

25. The final position that emerges is as follows. The Commissioner has estimated the cost of repairs in his report at a total sum of Rs. 63,

316. From this amount the amount regarding estimates relating to items of distemper to walls and ceilings and painting on doors and windows amounting to Rs. 11,062 being deducted. the remaining balance comes to Rs. 25,

254. To this amount a sum of Rs. 7,700 for the aforesaid items being added the total cost of repairs comes to Re. 59,

954. In addition to thin amount, the Commissioner also recommended the payment of 3 months' rent which according to his estimate will be the time required for completing the repairs. For authority that the landlord case recover compensation for the loss of use of the premises during the repairs. see Woods v. Pope ((1835) 6 C & P 782). Adding this amount of Rs. 7.800 the total amount due to the plaintiff comes to Rs. 67,754. 26 For the foregoing reasons and conclusions, the suit is decreed in the sum of Rs. 67,754 (Rupees Sixty Seven thousand Seven Hundred and Fifty Four only) with proportionate cost. S. A. H. Suit decreed.