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Petitioner: AZIZ FATIMA BEGUM VS Respondent: OILS & GAS DEVELOPMENT CORPORATION, KARACHI
Court Name: Sindh High Court Judge(s): Zaffar Hussain Mirza Title: AZIZ FATIMA BEGUM vs OILS & GAS DEVELOPMENT CORPORATION, KARACHI Case No.: Suit No. 107 of 1970 Date of Judgment:1977-12-03 Reported As: PLD 1978 Karachi 316 Result: Suit decreed
JUDGMENT
JUDGMENT Mst. Aziz Fatima Begum, the plaintiff in this suit owns and possesses two Bungalows bearing Nos. 23/15 and 23/15-A situate in Bihar Muslim Cooperative Housing Society Limited, Shaheed-e-Millat Road, Karachi. 2. The said two bungalows were leased out by the plaintiff to the defendants, the Oil Gas Development Corporation, in about the year 1560. The lease was then extended from time to time, with the result that for the last time the lease was extended in May, 1968 for the period of one year commencing from 17-5-1968 and ending by 16-5-1969. The terms and conditions agreed between the parties wore incorporated in two separate agreements in writing dated 4th and 6th May, 1968 respectively. In the recitals of the two agreements the number of rooms, the electric fittings and fixtures were mentioned in detail. It was further stipulated that the monthly rental for each bungalow shall be Re. 1,300 and that on the expiry of the period reserved under the lease the lessee shall have the option to renew the said lease on a yearly basis, at a rent to be mutually agreed upon. It was also provided in the agreements that the lessee shall not carry out alterations or additions to the demised premises or demolish or impair any part thereof; and further that the lessee shall take full care and keep in proper repairs the demised premises and all its fixtures and fittings, and replace at its own cost any such fixtures and fittings that may be damaged or became unserviceable by any act. Default or negligence of the lessee. The lessee also undertook to hand over vacant possession of the demised premises, on the expiration of the lease with all fixtures and fittings to the leaser in as good condition as at the commencement of the lease and to restore the promises to the same condition as at the time of the lease, to the satisfaction of the lessor or alternatively to pay compensation therefor as mutually agreed.
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3. On 24-7-1968 the parties agreed to some further terms which were reduced in writing and appended to the main agreements. Under the last-- mentioned terms ft was agreed that lessee shall distemper walls (inner and outer), ceilings and carry out the painting of all wood and steel structures and complete the same by 31-8-1968, in fulfilment of lessee's obligation to do the same for the past period of leases from May, 1965 to \4ay. 1969 which the lessees had failed to do. It was further agreed that the lessees shall undertake the said works for the second tune in relation to the subse--quent period of two years from May, 1967 to May. 1909 by 16-5-1969 and that In case of failure to do so, the lessees shall be liable to pay compensation to the lessor for the work not done accordingly. 4. It is the case of the plaintiff that the defendants committed breach of the aforesaid terms of the contract by failing and neglecting to carry out the works undertaken by them. This resulted 172 extensive correspondence between the parties commencing with the letter of the plaintiff dated 10-9-:968 whereby the plaintiff requested the defendants for a joint inspection of the bungalows but the defendants avoided to do the same. The plaintiff also called upon the defendants to carry out the work of distempering and painting etc. Which was due by 31-8-1963. But the defendants made evasive reply, whereupon the plaintiff claimed a sum of Re. 7,700 as compensation for the same. The defendants repudiated the claim. In the meantime, on 16-5-1969 the lease expired without the defendant's exercising the option for renewal. There ensued further correspondence between the parties over the question of the second round of distempering and painting due by 16-5-1969 and the violation of clause relating to option of renewal of the lease. In his correspondence, the plaintiff had also demanded joint inspection of the premises which was also not allowed. Eventually, on 25-8-1969 the defendants wrote to the plaintiff stating that they wished to extend the lease for which fresh agreement was being prepared but the plaintiff replied that lease having already expired, any removal thereof should be for a period of two years with 7* % increase in rent. Ultimately on 4-10-1969 the defendants Wormed the plaintiff thaw they would vacant the premises on 5-11-1969 and called upon her to arrange to take over the premises. However, in response to this the plaintiff demanded a sum of Rs. 15,400 by way of compensation for the failure of to defendants to undertake the works en two occasions stipulated in the appendix to the agreements, which worked out to Re. 15,400 and also insisted that the promises be delivered in same condition in which they were lot out or the same may be restored to the same condition, for which joint inspection be arranged. It is alleged that the defendants did not agree to these demands, but only offered to give inspection on 5-11-1959, the date on which they proposed to leave the premises According to the plaintiff a joint Inspection was thereupon carried out on 5-11- 1969 wherein it was found that the work described in Annexure XXII to the plaint had to be done by the defendants. Pursuant to the aforesaid, a further meeting for rechecking of the items of work was held on 8-11-1969, wherein the defendants agreed to items Nos. 1 to 9 and undertook to carry out the same. Additionally 8 items of work from Items Nos. 10 to 17 of Annexure XXII were to be further checked at a future meeting. However, this was not done and instead the defendants called upon the plaintiff to furnish to them his estimated cost of alleged damage or loss so that further discussion on the subject could be undertaken. There was some further correspondence between the parties and a mooting was arranged between the representatives of the parties but the differences could not be resolved. 5. Having failed to reach amicable settlement of her claim, the plaintiff filed the present suit on 5- 3-1970. It is alleged by the plaintiff that the premises were taken by the defendants for use as Science Laboratory and in this connection innumberable electric gadgets and other heavy machinery were installed to the premises with the result that extensive damage was done to the building, fixtures and fittings in particular the entire electric, plumbering and weed works, doors, windows, nylonnettings and steel works were destroyed, removed or impaired. The garden and the
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drive way had totally disappeared. The damage was assessed and estimated of Rs. 84,860 as mentioned in Annexure XXII of the plaint. Upon these allegations, the plaintiff claims a decree for specific performance against the defendant directing them to carry out and perform the works mentioned in Annexure XXII before handing over of vacant possession of the premises to the plaintiff or alternatively to pay compensation in the sum of Rs. 84,860 being the cost of the works to be undertaken to restore the premises to their original condition. The plaintiff also claims a decree for Rs. 15.400 on account of the failure of the defendants to carry out the works under--taken expressly as embodied in the appendices to the two agreements. A further sum of Rs. 10.008.61 is claimed as compensation for use and occupa--petition of the premises for the period between 17- 5-1969 to 28-2-1970 and for future mesne profit of Ra. 2,600 per month from 1-3-1970 until the handing over of the possession of the subject property. Lastly the plaintiff also claims a sum of Rs. 5,200 as compensation for loss of rental in lieu of notice in terms of the agreement. 6. The defendants have resisted the suit and have filed written statement denying the claim of the plaintiff. They admit that they were lessees of the two bungalows and do not deny the execution of the agreements along--with the appendices, but object to their admissibility and validity on the ground that they are unregistered. The defendants also deny that they bad committed breach of any terms and conditions agreed to between the parties and their liability to pay damages or compensation claimed by the plaintiff. It is alleged by them that the plaintiff neglected and failed to carry out a joint inspection of the premises and subsequently did so unilaterally in absence of the defendants. They further ploa4 that the defendants carried out the works of distempering and painting ate. In fulfilment of their obligation under the agreement. It is further their case that after 16-5-1969 the defendants continued to occupy the premises as statutory tenants until 5-11-1969 when they vacated the premises after giving one month's notice to the plaintiff on 4-10-1969. It is further contended by the defendants that a joint inspection was eventually carried out and the defendants offered to compensate the plaintiff for normal wear and tear caused to the premises during the period of tenancy which was sufficient to restore them to their original condition; however, the plaintiff made exaggerated and arbitrary demands for compensation which were refused. The defendants specifically denied the correctness of the Annexure XXII to the plaint, which according to them bad been prepared falsely by the palintiff's own architect. The defendants also strongly repudiated the allegation that they had agreed to any of the items of worm mentioned in Annexure XXIL Finally the defendants submitted that the rent due upto and inclusive of 5-11-1969 bad been paid to plaintiff after which the defendants had vacated the premises, but the plaintiff refused to accept the keys of the premises and insisted for v-e satisfaction of her misconceived claim. The keys were therefore, despatched to the plaintiff by registered post on 12-1-1970. 7. On the pleadings of the parties the following issues were framed: (1) Whether the suit is bad for misjoinder of causes of action? (2) Whether the defendants caused damage to and/or removed any fittings from, before delivery of possession of the bungalow by them to the plaintiff? (3) Are the defendants liable for any water, gas, electricity, conservancy and other charges? If so in what amount? (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
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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 A.I. 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 assessm ent 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 A.I (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
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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 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 A.I (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
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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.
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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…
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