RANI UPADHYAYA Vs. K K SANTRA

JUDGEMENT

(1.) THIS matter has been referred to us by P. N. Mookerjee, J. The point, though simple, is important. The petitioner is the owner of premises No. 61b, Lansdowne Road, Calcutta. The opposite-party is the petitioner's tenant in respect of the first floor of the building at the said premises. According to the petitioner, the opposite-party intentionally caused some damage to the floor of the flat and to the staircase room. Accordingly, the petitioner moved the Rent Controller under sec. 34 (4) of the West Bengal Premises Tenancy Act (Act XII of 1956) for the issue of a notice requiring the opposite-party to repair the damage. This application was dismissed, on the ground that it was not maintainable. The Appellate Court also took the same view.

(2.) IT is common case that there was no written lease in respect of the property demised. It is also common case that there was no sort of agreement for the tenant to make any repairs. The question for decision is whether, in the absence of any such agreement, an application under sec. 34 (4) lies.

(3.) MR. Barman argues that under clause (m) of sec. 108 of the Transfer of Property Act, the lessee is bound to repair the damage and that, accordingly, an application under sec. 34 (4) lies. According to Mr. Barman, the tenant's duty to repair is an implied condition of the tenancy as provided under clause (m) of sec. 108 of the Transfer of Property Act. The learned Advocate argues that the language of sub-section (4) of sec. 34 attracts the provisions of clause (m) of sec. 108 of the Transfer of Property Act. He contends that the relative provision in the Tenancy Act does not abrogate the tenant's liability under clause (m) of sec. 108.