GYANWATI NAITHANI Vs. UDAI RAJ AYODHYA PRASAD

JUDGEMENT

(1.) The appellants are the tenants of respondent No. 1 of a certain accommodation in Bahraich. The roof of one of the rooms in that accommodation has given way. It was a tiled roof. The appellants want to replace it by a roof made of cement slabs. Objection had been taken against it by Tespondent No. 1. He filed a suit for an injunction restraining the appellants from making the construetions. The plea of the appellant was that they were only making repairs allowed to them under Section 108, T. P. Act. This plea of the appellants found favour with the learned Munsif but it did not find favour with the learned Civil fudge of Bahraich in appeal. The suit was accordingly decreed for a permanent injunction restraining the appellants from demolishing the old roof and replacing it by a new Pakka slab roof. In this second appeal the only point that has been urged at the time o admission is that it was not a case o reconstruction but was a case of repairs which the appellants had a right to make under Section 108, T. P. Act.

(2.) It is not disputed that originally there was a tiled roof over the room. The appellants now want to replace it by a roof of cement slabs. They say that the roof is to be repaired as it is badly damaged and as the rain water leaks through it. Assuming for a moment that the old roof had to be repaired the question is whether replacing it by cement slabs amounts to repairing.

(3.) The lower Court has relied on the case of Bepin Behari Chatterji v. Muasif, West Allahabad, 1959 All W R (HC) 197 wherein it has been held that where a portion of an accommodation had ceased to exist and required to be reconstructed its reconstruction did not amount to repairs. That was, however, a case where the whole structure had fallen down. But in this case only the roof has given way and requires repairs. The question however would still arise whether replacing of the tiled roof by a roof made of cement slabs will amount to repairs. The learned counsel points out that the entire roof was leaking and, therefore, its replacement amounted to repairs. In support of his contention, he relied on the case of Augustine v. Chandy, AIR 1953 Trav-Co 462. In that case the observations of Fletcher-Moulton L. T. in Lurcott v. Wakely & Wheeler, (1911) 1 K B 905 at p. 918 to the following effect "repair includes replacement of parts . .. Many, and in fact most, repairs imply that some portion of the total fabric is renewed, that new is put in place of old" have been referred to. That was a base of a thatched old shed made of very flimsy materials like bamboo and arecanut stem. Its repairs, according to what has been held in that case implied renewal and replacement of parts and it was in that connection that the above observations of Fletcher-Moulton, L. T., were relied upon. In this case also, no doubt, the roof was a tiled one and if the structure of the roof had given way and the files had also given way then they could be pulled down and completely renewed and replaced, but that did not mean that they could be replaced by entirely a new type o construction. The case goes to help the appellants only to this extent, and I respectfully agree with the observations made therein, that the appellant could have replaced the tiled roof by pulling down the old structure on which the files rested, but they could not replace the tiled roof by a roof made of cement slabs.