1. On an application made by the respondent under Section 8 of the Madras Buildings (Lease and Rent Control) Act, her landlord the petitioner was directed by the Controller to restore to the respondent the amenities of a cow-shed and a bath-room both of which had been destroyed by heavy rains in the year 1954. The finding o the Controller was that it was the continued neglect on the part of the Petitioner, who had made an unsuccessful attempt to evict the Respondent, to prevent erosion of the walls of a storm water drain, that caused the destruction of these portions of the leased building.
2. The Petitioner's appeal to the appellate authority against that order failed, and his revision petition to the District Court of South Kanara under Section 12-B of the Act was also dismissed. This further revision petition is directed against the order of the District Court, under Section 115 of the Code of Civil Procedure.
3. Mr. Karanth learned Advocate for the Respondent raised a preliminary contention that this revision petition was not maintainable. His argument was that the order of the District Court dismissing the revision petition presented by the Petitioner, could not be further assailed under the provisions of Section 115 of the Code of Civil Procedure. It seems to me that this preliminary objection has to fail for the reason that the District Court which heard the Petitioner's revision petition under Section 12-B of the Act is a Court subordinate to this Court and! not a persona designata.
4. Mr. Govind Bhatt learned Counsel for the Petitioner has contended that the Courts below were in error in regarding the cow-shed and bath-room as amenities cut off or withheld by the petitioner within the meaning of Section 8 of the Act. He contended that an amenity has to be distinguished from a necessity and that the two destroyed parts of the leased building fell within the latter category and not in the former. He also argued that in any event the Petitioner could not be accused of having cut off or withheld them after they had ceased to exist for the reason that no person could cut off or withhold what is not available or in existence.
5. In support of his argument that the destroyed portions of the building were not amenities, Mr. Bhatt relied on the provisions of Section 11 of the Act, which empowers the Controller to authorise a tenant to make, at the cost of the landlord, necessary repairs neglected to be made by the landlord. His submission was that the repairs so permitted included the replacement of the destroyed parts of the leased premises and that the only remedy of the Respondent in this case was to apply for permission to do so under Section 11 of the Act. Reliance was placed by him, on Lurcott v. Wakely,(1911) 1 KB 905 ; A. and J. Inglis v. John Buttery and Co., 1878 3 AC 552 ; Truscott v. Diamond Rock Boring Co., (1882) 20 Ch D 251 and Commissioner of Income-tax, Excess Profits Tax, Madras v. Rama Sugar Mills Ltd., Bobbili, : 21ITR191(Mad) (D), to support his contention that a repair may be a renewal or replacement. The relevant sections of the Act read as follows :
'Section 8 : (1) No landlord shall, without just or sufficient cause, cut off or withhold any of amenities enjoyed by the tenant.
Section 11 : (2) If a landlord fails to make the necessary repairs to he building within a reasonable time after notice is given by the tenant, it shall be competent for the Controller to direct on application by the tenant that such repairs may be made by the tenant and that the cost thereof may be deducted from the rent which is payable by him.'
It seems to me that the meaning to be given to the word 'repair' depends upon the context in which it occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is, I think, an essential difference, in the case of a building, between a repair and a re-construction. While the restoration of the stability or safety of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the subject matter cannot be so regarded. In (1911) 1 KB 905 , referred to with approval in Rhodesia Rly Ltd. v. Income-tax Collector, Bechuanaland, (1933) AC 368 , Buckley L.J. said:
''Repair' and 'renew' are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part, of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or states for those which are cracked, broken of missing; to make good the flashings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary new bricks or stone. 'Repair is restoration by renewal, or replacement of subsidiary parts of a whole'. (The underlining (here in inverted commas) is mine). Renewal, as distinguished from repair, is reconstruction of the entirety meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed by Lister V. Lane, (1893) 2 QB 212 and Wright v. Lawson, (1903) 19 TLR 510 . But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole.'
In a case decided under the Income-tax Act, : 21ITR191(Mad) (D), Satyanarayana Rao J. who followed the decision in the above case observed :
'On a careful analysis of this passage of Buckley L.J. it would be seen, a renewal may be a repair or a reconstruction. Renewal is a repair if it is only restoration by renewal or replacement, or subsidiary parts of a whole. If, on the other hand, it amounts to a reconstruction of the entirety or of substantially the whole, of the subject-matter it is not a repair but a reconstruction. The test, therefore, which decides the question whether a thing is a 'repair' or not is to see whether the act actually done is one which in substance is a replacement of defective parts or a replacement of the entirety or a substantial part of the subject-matter, a reconstruction of a wall, it was held in that case, was a repair and was covered by the obligation of the tenant who was under a covenant to repair the leasehold property. The reason given for this conclusion appears at page 927. It was held to be a 'repair' because it merely restored the stability and safety of a subordinate part of the whole like replacing a new floor of a house.'
Applying these principles to the present case, the replacement of the roof or the floor or a wall of the cow-shed or the bath-room would be a repair but not their entire reconstruction.
6. I am, therefore, unable to agree with the contention of Mr. Bhatt that the restoration of the cow-shed or the bath-room for which the respondent applied, was in the nature of a repair within the meaning of Section 11 of the Act. Nor do I find anything in the definition of the word 'building' contained in Section 2 of the Act, to which Sri Bhatt referred, justifying a contrary view.
7. Assuming that such restoration can be considered a repair which a tenant can make under Section 11 of the Act, it does not follow that he cannot apply under Section 8, for their restoration as amenities unless it could be said that the cow-shed and the bath, cannot be regarded as amenities at ail -- the rights or remedies under the two sections not being necessarily mutually exclusive. Mr. Bhatt has therefore strenuously urged that they are not amenities. Ho drew my attention to the meaning of that word contained in 3 Corpus Juris Secundum 1044 which is as follow:
'Amenity: In real property law, such circumstances, in regard to situation, outlook, access to a water-course, or the like as enhance the pleasantness or desirability of an estate for purposes of residence, or contribute to the pleasure and enjoyment of the occupants, rather than to their indispensable needs; restraining the owner from doing that with and on his own property which, but for a grant or covenant, he might lawfully have done.'
Indeed, the above definition of an amenity far from helping Mr. Bhatt, appears to negative his contention. It is indisputable that a bath room undoubtedly enhances the desirability of a house for purposes of residence and contributes to the enjoyment of the occupants. The mere fact that it might also form an indispensable need does not take away from it the character of an amenity. Likewise, to a tenant owning a cow, a cow-shed forming part of a leased building is I think, a similar essential amenity. It is seen from the short notes of recent cases published in Narayonan v. Appukutty, 1955 2 MLJ 31 , to which Mr. Bhatt drew my attention, that Ramaswami J. appears to have taken the view that a bath was an amenity which a landlord cannot cut off on withhold.
8. What is or is not an amenity, is, it seems to me, a question to be decided on the facts of each case. The Courts below have, on a careful consideration of the facts of this case reached the conclusion that in this case the cow-shed and the bath-room were amenities within the meaning of the Act. It does not seem to me that that finding was unjustified,
9. The implication of the finding of the Controller that the unavailability of the amenities enjoyed by the respondent was attributable to the wilful omission of the petitioner to repair the walls of the storm water drain, is that these amenities were cut off or withheld by him. I believe this finding to be well founded. That being so and having regard to the fact that the petitioner expressed his willingness before the Controller to restore those amenities for a higher rent which the respondent was willing to pay, it docs not appear to me that I would be justified in disturbing in revision the concurrent decisions of the three Courts below. This revision petition is, therefore, dismissed with costs.
10. Revision dismissed.