BEHARI Vs. KUNJAR LAL

JUDGEMENT

(1.) This is a defendants' second appeal. Plaintiff filed a suit for arrears of rent and ejectment on the ground that the defendant was a tenant at Rs. 8/8/- per month, that the defendant had not paid arrears of rent for a period from the 1st of April, 1953. A valid notice for vacating the house and demanding the arrears of rent was served on the defendant. The defendant contested the suit on the ground that during the rainy season of 1953 the wall and the tiled covering of the house had fallen. The Plaintiff dia not repair the same in spite of notice and, tneretore, the defendant spent Rs. 64/8/- on repairs of the house. He was therefore, not in arrears for which notice had been given. This amount of Rs. 64/87- was sufficient to cover the rent which had fallen due against the defendant upto the date "f notice.

(2.) The trial Court held that the defendant had not made any wilful default and, therefore, dismissed the plaintiff's suit for ejectment but decreed arrears of rent for Rs. 24/12/-. On appeal the lower appellate Court has decreed the suit on a finding that the defendant was not entitled to deduct Rs. 64/8/- out of the rent due, but he was entitled only to deduct one month's rent that is Rs. 8/8/-. He has, therefore, decreed the suit for ejectment and has decreed arrears only for Rs. 80/12/-.

(3.) Learned counsel for the defendant appellant has contended that the lower appellate Court was wrong in taking the view that the repairs which the house needed were the normal annual repairs. In fact the tiled roof and a wall of the house had fallen down. The house had, therefore, become open to rain and wind. Under Section 7-E of the U.P. (Temporary) Control of Rent and Eviction Act it was the duty of the landlord to keep the house wind-proot and water-proof and he, therefore, contended that for repairs of this nature the tenant had a right under Section 108-B(f) of the Transfer of Property Act to make the repairs after notice to the landlord and to deduct the same from the rent.