KISTUR CHAND JAWARI LAL Vs. MANGHI LAL

JUDGEMENT

(1.) THESE revision petitions have been filed by the plaintiff-petitioners-tenants (here in after to be called the petitioners) against the similar orders of the learned District Judge, Pali dated December 16, 1989 dismissing the appeals of the plaintiff-petitioners and affirming the orders of the learned Munsif, Pali dated May 27, 1987 by which he had dismissed the applications of the petitioners moved under Order 39 Rules 1 and 2. C. P. C. praying that the defendant non-petitioner-landlord (hereinafter to be called 'the non-petitioner) be restrained from obstructing them to carry out repairs in the demised shops.

(2.) THE review petitions have been filed against my common order dated October 20, 1989 by which the revision petitions No. 540, 541 and 790 of the year 1989 have been dismissed. THEse revisions were filed against the similar orders of the learned Additional Civil Judge No. 1, Pali (where these suits were pending) dated September 21 1989, directing the tenants to remove their articles from the demised shops.

(3.) THE first question for consideration is whether the petitioners have a right to carry out repairs in the suit shops after the said fire had taken place in them. Section 20 of the Act runs as under :- 20. Landlord's duty to keep premises in good repair. (1) THE landlord shall be bound to keep in good and tenantable repair any premises to which this Act applies except in cases where the tenant has undertaken by agreement to keep premises in repair. (2) If the landlord neglects to make within a reasonable time after notice, any repairs which he is bound to make under sub- section (1), the tenant may make the same himself, and deduct the expenses of such repairs from the rent, or otherwise recover it from the landlord; Provided that the amount so deducted or recoverable in any year shall not exceed one twelth of the rent payable by the tenant for that year. " Sub section (2) does not require service of a notice in writing by a tenant upon his landlord. If the landlord has notice from any source about the condition of the demised premises, he is bound to carry out necessary repairs as required under sub-section (1 ). Clause (f) of section 108, Transfer of Property Act runs as under:- " (f) If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor. " This clause also does not require that a lessee is to serve a notice in writing upon his lessor. Section 3 of the Transfer of Property Act enshrines that a person is said to have notice of a fact which he actually knows that fact or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Section 28 of the Act says that the provisions of the Act shall be in addition to and not derogatory of, any other law on the subject for the time being in force. Thus the learned lower courts have acte4 with material irregularity in exercising their jurisdiction to hold that the petitioners have no right to carry out the repairs in the suit shops as they did not serve any notice upon the non-petitioner prior to filling of the suits. THEse provisions leave no doubt that the non-petitioner had a duty to carry out necessary repairs in the suit shops. He not only failed in his duty but obtained an order from the courts restraining the petitioners in carrying them out. Clause (m) of section 108, Transfer of Property Act requires that the lessee is bound to keep the demised property in as good condition as it was in at the time when he was put in possession.