NIRENDRA NATH SADH Vs. LAL MOHAN MULLICK

JUDGEMENT

(1.) This rule is directed against the order No. 31, dated August 21st 1978 whereby the Learned Munsif while disposing of application made on behalf of O.P. under Section 151 of the Code of Civil Procedure required plaintiff petitioner herein to effect certain repairs by august 29, 1978.

(2.) Mr. Tarun Chatterjee, the Learned Advocate appearing in support of the rule, contends that the impugned order is bad inasmuch as it was made by the learned Munsif in exercise of jurisdiction which is not vested in him by law. What Mr. Chatterjee means to say that if the tenant wants to repair to be effected in the suit premises he was to avail himself of the remedy afforded to him by the provisions of Section 34 of the West Bengal Premises Tenancy Act, 1565. It is well settled that under the general law, in the absence of any agreement, the landlord would not be bound to effect any repair but under Section 34 of the West Bengal Premises Tenancy Act, 1956 even if in cases where the conditions of tenancy do not include any provision for repairs the Rent Controller may require the Landlord to effect repairs if he considers such repairs to be essential. A detailed procedure has been laid down in Section 34 for the making or disposal of application made by tenant asking for orders of the Rent Controller requiring the landlord to effect repairs. Thus the special law as embodied in Section 34 of the West Bengal Premises Tenancy Act, 1956 creates a right in favour of the tenant which was not available to him under the general law. In such circumstances the procedure laid down in the said Section 34 has to be followed and the tenant cannot ask the Civil Court to grant him relief in this regard. Mr. Chatterjee appearing for the petitioners fairly draws my attention to a decision of this Court in Loken Bose v. Anima Dey, 1977 AIR(Cal) 318which according to Mr. Chatterjee may be relied upon by the learned lawyer appearing for the Opposite Party in supporting the impugned order. In that case in a suit for an ejectment a prayer was made in temporary mandatory injunction for restoration of essential services. Such a prayer was disallowed by the Court of first instance and the Court found that the tenant was entitled to ask for the restoration of essential services such as restoration of the water supply. If the tenant was from the inception of his tenancy entitled to such essential supplies as for instance supply of tap water the Court would be required to grant him prayer for mandatory injunction and the Landlord may be required to restore the essential supply for such a supply is to be regarded as comprehended within the conditions of tenancy. But when under the general law the tenant is not entitled to require landlord to effect repairs the Civil Court would be going beyond its jurisdiction to grant such prayer in exercise of its power under Section 151 of the Code of Civil Procedure. Section 108(f) of the Transfer of Property Act provides that if the lessor neglects to make within a reasonable time after notice any repair which he is bound to make the property the lessee may make the same himself and deduct the expenses of such repairs with interest from the rent, or otherwise recover from the lessor. This provision obviously applies to cases where the landlord is bound to make the repairs and that may be so only in cases whereby the terms of the lease landlord undertakes to effect repairs. In the present case admittedly there is no agreement between the parties whereby the Landlord is required to effect repairs. In the circumstances I agree with Mr. Chatterjee so far as the question of law raised by him is concerned but in the facts and circumstances of the present case I find no reason to interfere with the impugned order. In the present case the specific case of the tenant opposite party is that the cracks in the wall and the roof in question resulted from the demolition of the upper-storey and that such demolition was effected during the subsistence of the interm order of the injunction restraining the landlord from demolishing the upper-storey in the objection petition filed on behalf of the landlord there is no specific denial of fact that such demolishing was effected at a time when the Courts order restraining him from demolishing the upper-storey was subsisting. In the present case therefore the tenant is not asking for such repairs as were necessitated by the reasonable wear and tear and user of the premises in question. Here the tenant is asking for repair to be effected so that the tenant may not suffer from the damage caused to the suit premises by an act of the landlord himself, i.e. the act of demolishing upper storey. The learned Munsif found that there were cracks on the roof and at the top of the entrance of the suit premises. The learned Munsif relied upon the report of the Commissioner who found cracks at the top of the door of the front wall of the suit premises. In the circumstances as already stated by me I find no reason to interfere with the impugned order. But in view of the fact that the landlord has sued the tenant for eviction on the ground of building and rebuilding as also on the ground of requirement of the suit premises for his own use and occupation I consider it proper the expenditure to be incurred for the purpose of effecting the repairs asked for ought not to exceed the amount of one year's rent payable for the suit premises. The learned Munsif is to expedite the hearing of the suit.

(3.) In the circumstances the rule is discharged and the impugned order is affirmed subject to the condition regarding the maximum amount to be spent referred to above.