JHALA UMEDSINHJI MERUBHABHAI Vs. INDUMATI MARKANDRAY TRIVEDI

JUDGEMENT

(1.) The petitioner in this Civil Revision Application is the original defendant-tenant. The opponent is the original plaintiff. The plaintiff filed Regular civil suit No. 268 of 1964 for recovery of possession of the suit premises Rs. 240/as arrears of rent and future mesne profits etc. It was the plaintiffs case that the monthly rent was Rs. 20.00; that the tenant had not paid rent for 15 months and therefore she had terminated the tenancy by giving notice dated 28th September 1964; that after the service of the notice mesne profits for a period of one month became due and payable by the tenant against which the tenant paid a sum of Rs. 80/by two money orders from the each of Rs. 40/and taking into account the amount received Rs. 240/remained due. The tenant thus being in arrears of rent for a period of more than six months she was entitled to possession. The tenant filed a written statement and raised a number of contentions. For the purpose of this Civil Revision Application it would be sufficient to note that it is pleaded that prior to the filing of the present suit the landlord had filed civil suit No. 78 of 1958 against the tenant for recovery of possession arrears etc. The said suit however was dismissed and it was held that the tenant was entitled to recover from the landlord Rs. 111/being the amount of expenses incurred for repairs of the suit premises. The Court in the said previous suit ordered that a sum of Rs. 40/should be deducted and that a balance of Rs. 71/should be deducted from future rent. It was his further case that thereafter between 1958 and 1964 he had spent in all Rs. 1013.76 Ps. on account of repairs. However as he had not given notice in respect of a part of that amount the tenant claimed that he was entitled from the landlord to a sum of Rs. 944-54 Ps. Adding to that the amount which he was entitled under the previous suit to deduct the total amount that he was entitled to from the landlord at the date of the suit in question was Rs. 1015.54 Ps. According to him under law he was entitled to recover from the landlord a sum equal to nine months rent for a period subsequent to the decree passed in civil suit No. 78 of 1958. Under the circumstances he was not in arrears for a period of more than six months at the time of giving of the notice as well as at the time of filing of the suit by the landlord. Further that he has deposited the amount of balance and as such he was not in arrears at all and the landlord had no legal right to evict him. The trial Court held that except for a sum of Rs. 60/spent by the tenant on account of repairs in the year 1964 the petitioner was not entitled to deduct any amount spent by him for repairs and even if the said amount was given credit to the tenant he was in arrears for a period of more than six months.

(2.) The trial Court further held that the tenant was entitled to deduct a sum of Rs. 71/as per the decree passed in civil suit No. 78 of 1958 and a sum of Rs. 117.75 Ps. spent by the petitioner on account of repairs in the year 1959. He further held that the tenant was not entitled to claim any amount by way of expenses for the repairs for the years 1960-61 and 1962-63 as no notice was given by the petitioner as contemplated by law. However the learned Judge took the view that in respect of the amount of Rs. 71/and 117 75 the claim for deduction was barred by limitation and accordingly a decree in favour of the landlord was passed. Being aggrieved by this decision the petitioner filed civil appeal No. 150 of 1965 in the Court of the District Judge at Surendranagar. In the said appeal the trial Courts decision was confirmed. The appellate Court held that the petitioner-tenant was entitled to deduct a sum of Rs. 71/as per the decree in the old suit No. 78 of 1958 and also a sum of Rs. 117.75 Ps. for the expenses incurred by him for the repairs in the year 1959. Thus in all a sum of Rs. 188.65 were held to be due to the tenant on account of expenses for repairs. But at the same time the learned Judge took the view that the said amount had not been deducted till the filing of the suit and as the time for deduction had expired the tenant had no right to demand the said amount being credited and if that amount was not taken into account the clear position was that he was in arrears of rent for a period of more than six months. Now it may be noticed that in coming to this conclusion the appellate Court though no appeal had been preferred by the landlord against the decree passed by the trial Court in respect of the amount of repairs incurred in the year 1964 and the said amount having been held by the trial Court to be due to the tenant the learned District Judge reversed that finding of the trial Court and held that the tenant was not entitled to deduct any amount on account of repairs for the year 1964. This Civil Revision Application arises out of the judgment of the appellate Court confirming the trial Courts decree awarding possession to the landlord.

(3.) Mr. B. R. Shah the learned Advocate for the petitioner-tenant challenged the judgment of the appellate Court on the following grounds:-