NATIONAL MOTOR INDUSTRIES LTD Vs. BIRENDRA NATH MITRA

JUDGEMENT

(1.) This Rule is directed against an order under Section 14 (4) of the West Bengal Premises Rent Control Act. The main objection of the tenant to the landlord's prayer for the order under Section 14 (4) of the Act with which we are concerned now is that there should be' suspension of rent because of the landlord's failure to carry out repairs which were necessary to make the premises habitable or useable except with great inconvenience. That a portion of the premises was in need of such repairs is no longer disputed. The learned Subordinate Judge has, however, held that the tenant is not entitled to suspension of rent because of the landlord's failure to carry out the repairs and has directed the tenant to deposit an amount of Rs. 4631-12 annas as arrears of rent within fifteen days of the order and Rs. 143-12 annas per month as rent with effect from February, 1955, by the 15th of the following month.

(2.) The first question for consideration therefore is whether tenant is entitled to suspension of rent because of the landlord's failure to carry out the repairs. Before the enactment of Section 38 of the West Bengal Premises Rent Control Act the landlord, in the absence of any agreement express or implied, had no legal liability to carry out repairs. In the present case no such agreement is alleged. The only liability of the landlord is, therefore, under Section 38 (3) of the West Bengal Premises Rent Control Act which provides that the landlord shall be bound to make such repairs without which the premises are not habitaole or usable except with great inconvenience. The landlord did not carry out the repairs and the tenant has obtained an order from the Rent Controller for carrying out the repairs himself as provided in the second sub-section of Section 38 of the Act. The Statute in imposing this liability of making certain repairs on the landlord has not said anything as to the remedy available to the tenant if the landlord does not carry out the repairs. In the second sub-section it has provided that where after the service of notice the landlord neglects to make repairs within a reasonable time, the tenant may apply to the Rent Controller for permission, to make repairs and the Controller, after giving the landlord an opportunity of being heard and on considering the estimate of cost which the tenant has to submit along with his application, may permit the tenant to make such repairs "at a cost not exceeding such amount as may be' specified in the order". The subsection goes on to say,

(3.) It is argued on behalf of the opposite party that the provision in the second sub-section of Section 38 that the Rent Controller may allow the tenant to make the repairs and thereafter it shall be lawful for the tenant to deduct the cost of repairs from the rent or otherwise recover it from the landlord, is the sole remedy that is available to the tenant. It is well settled that where a new right is created and a remedy provided by the same Statute for infringement of that right, the Courts should treat that remedy as the sole remedy available unless on the words of the Statute it can reasonably be held that the Legislature intended the ordinary remedies under the general law for infringement of such right to continue to be available. 'It is hardly necessary to consider this principle of law in the present case, as I do not think it is correct to say that what the second sub-section provides is really a remedy for infringement of the right. Clearly, it provides only a convenient mode of enforcing the right. The provision that the cost of the repairs can be recovered by deduction from the rent or otherwise has nothing to do with the injury caused by the infringement of the right. The fact that repairs are ultimately carried out does not undo the damage caused during the time - which may be considerable - when the repairs had not been done. It is therefore not possible or proper to consider the provisions in the second sub-section of Section 38 to provide a remedy for the infringement of the right, created by the third sub-section. I have, therefore, come to the conclusion that if under the general law the tenant was, entitled to suspension of rent for failure of the landlord to carry out repairs which he was bound in law to do, this remedy will be available to the tenant in respect of the failure of the landlord to carry out repairs coming under Section 38 (3) of the West Bengal Premises Rent Control Act.