AUGUSTINE Vs. CHANDY AND ORS.

JUDGEMENT

(1.) THIS Second appeal by the 1st Defendant arises out of a suit for eviction. The Chapra described in the Schedule annexed to the plaint was taken on rent by one Vakry Luiz from the Vadakkumbhagonr Synagogue. For the purpose of his trade 1st Defendant obtained possession, of the Chapra from Luiz. Thereafter on 26 -6 -1120, 1st Defendant attorned direct and executed Ext. B Koolicharth in favour of the Synagogue. On the allegation that 1st Defendant demolished the Chapra that was leased out to them, and that consequently there was a termination of the lease, the Plaintiffs who are the managers of the Synagogue have brought the suit for eviction of the Defendants and for recovery of the site after removal of the new structure, if any, put up by the 1st Defendant together with the arrears of rent and the value of the demolished Chapra by way of damages. The 1st Defendant while admitting that he is in possession under Ext. B denied the allegation that the Chapra had been demolished by him. He contended that he had only repaired the Chapra as he was entitled to do and that the suit for eviction is not maintainable by virtue of the provisions of Proclamation 4 of 1122 (Cochin). The claim of the Plaintiffs for damages was also repudiated. On the question of arrears of rent he pleaded that it waif brought about by the Plaintiffs' refusal to receive the rent when offered.

(2.) THE courts below gave a decree to the Plaintiffs prayed for on the findings that the 1st Defendant had demolished the Chapra that was rented out and put up a new one, and that the lease does not continue after the demolition of the building rented out. It appears to me that the courts below have failed to draw the correct inference from the facts established by the evidence in the case. That Chapra that was rented out was but a flimsy structure. It had no masonry work whatsoever like basement, foundation or walls. It was but a shed put up on pillars of cocoanut timber with roofing made out of arecanut stem and bamboos and thatched with cadjan leaves. It was a pretty old one too. The evidence is that it was put up some 16 or 17 years before the date of suit. The total cost incurred by the Synagogue in connection with its construction was but Rs. 50 as seen from the accounts produced. It appears that on the date of Ext. B the Synagogue was under the administration of a Receiver appointed by Court and Ext. B was taken in the name of the Receiver on behalf of the Synagogue. In 1122 the 1st Defendant filed Ext. 3 petition before the Court stating that the shed is in a very dilapidated condition and prayed that orders may be passed to repair it properly. The court called for a report from the Receiver. The Receiver filed Ext. 6 report. It shows that that shed was in a very dilapidated condition even then. The Receiver was of the view that it was in such a bad state that it would be a waste of money to repair it. However the court ordered the Receiver to do what he deemed necessary. But nothing appears to have been done by the Receiver. Sometime after on the termination of the suit the Receiver was discharged.

(3.) UNDER Section 108(f) of the Transfer of Property Act, if the lessor neglects to make within a reasonable time after notice any repairs I which he is bound to make to the property the I lessee may make the same himself and deduct the expenses of such repairs with interest from the rent or otherwise recover it from the lessor. In the light of the evidence in the case there is no doubt that the lessor had notice that the Chapra was in utter despair and required attention. The evidence also shows that the lessee was demanding such repair of the lessors. It is however contended that there is a provision in Ext. B that the lessee should not make any alteration in the Chapra without the consent of the lessor. But does that mean that She lessee is prevented altogether from doing the necessary repair work if the lessor wilfully neglects to do it? Should the lessee, keep quiet and allow the shed in which he is carrying on his business fall down? I do not think so. I am of the view that the provision relied on does not take away the right conferred on the lessee under Section 108(f) of the Transfer of Property Wet. It has also to be remembered that under 108(M) of the Act the lessee is bound to keep and on the termination of the lease to restore the property in as good condition as it was at the time when he was put in possession object to the changes caused by reasonable Wear and tear of irresistible force.