1. This revision under Section 18 of the Small Cause Courts Act is by the plaintiff in S. C. 1618/72 on the file of the Court of the Small Causes at Bangalore.
2. The undisputed facts are: The defendant-respondent was a lessee of a premises belonging to the Petitioner lesser on a monthly rent of Rs. 200/-. He was in arrears of rent for the month of November 1971 (i.e. Rs. 200) which had to be paid by 1-12 1971. It would appear that the water meter attached to and situated within the leased premises, and which was in a sound condition, had been stolen on the night of 6-12 1971. The lessee, therefore, called upon the lessor to have the same replaced presumably by way of repair. On lessor's refusal to comply, the lessee himself got it replaced at a cost of Rs. 78/-, through the Water Supply and Sewerage Board. He, therefore, deducted the same from out of the rent due for the previous month of November and sent the balance of rent of Rs. 122/- which was refused by the lessor. Thereupon, the lessor sued for the month's rent in question. The defence of the lessee-defendant was that he was entitled to such deduction and, therefore, not liable to pay the rent in question in full.
3. The learned Small Cause judge while rightly addressing himself to the question whether the lessor was liable to meet the cost of such replacement, which he considered to be a mere repair, held that the lessor was so liable and in the absence of action on her part to effect the same, the lessee was entitled to do so and deduct the cost from out of the rent payable. He made a decree, therefore, for a sum of Rs.122/- only. Hence the petition.
4. The court below is concluding as above, relied on two grounds. They are: (1) Section 43 of the House Rent Control Act imposed an obligation on the lessor to effect the repair in question; and (2) Section 44 of that Act enabled the lessee to recover the cost thereof if he had got the necessary repair done by himself. In my view, neither of these grounds is tenanble, in the facts and circumstances of this case.
5. It is plain from the language of Section 43 of the H R. C. Act that when an amenity like water supply to the leased premises has been cut off or impaired by any act on the part of the lessor, then alone a right would accrue to the lessee to demand for its restoration. That this is the true scope of that provision has been laid down in the case of The Deputy Commissioner v. Mahalingappa Kenchappa ((1968) 1 Mys Lj 213), wherein Somnath Iyer, J. as he then was, has observed thus:
'The water supply to which the tenant was entitled was undoubtedly an essential supply, and so, it was impermissible for the landlord to cut off or withhold such essential supply. But the words 'cut off or withhold' connote normally some positive act which results in the essential supply or service becoming unavailable to the tenant. It is obvious that the Deputy Commissioner who occupied the position of the landlord did not cut off any water supply, since the water mains became blocked not by any act attributable to human agency but by reason of the collapse of the kitchen and latrine walls which resulted in blocking the flow of water through the mains.'
6. In the instant case, the fact alleged by the lessee is that the meter bad been stolen, while the leased premises was in the possession of the lessee himself. It is quite obvious that such theft is not attributable to any act on the part of the lessor. Hence, the provisions of Section 43 of the H. R. C. Act cannot come into the Picture at all. The conclusion of the court below on the point based as it was on the said provision, is clearly erroneous and has to be set aside.
7. Turning to the remaining ground, it is to be noticed that Section 44 of the H R. C. Act, inter alia, imposes an obligation on a landlord to maintain the leased premises in 'good repair during the period of a tenancy. It further provides that if the land lord neglects to make such repairs when called upon by the lessee through a notice, the lessee would become entitled to effect such repairs himself and recover the cost in accordance with the terms prescribed therein. The question, therefore that arises for consideration is whether a replacement of a meter which had been stolen as in this case falls within the scope and ambit of the expression 'good repair' occurring in Section 44 of the H. R. C. Act. It may be noticed that the present case did not involve the replacement of an article which had become totally defective, worn out or unserviceable and, therefore, beyond any repair, and in respect of which the lessor had been duly notified by the lessee, even before its theft.
8. In Digambar Narayan. Tagore v. Firm Gadmal Motiji Marwadi ((1972) 1 Mys Li 576), in the context of Section 44 of the H. R. C. Act, it is observed by Jagannatha Shetty, J. thus:
'Section 44 does not give any guidance about the kind of repairs which the landlord is bound to make. It must depend upon the condition of the building at the commencement of the lease and if the house is an old one, the landlord is bound only to keep the house in good repair as an old house ............'
9. From the above enunciation, it would not follow that the meaning of the expression 'repair' occurring in Section 44 of the H. R. C. Act would take within its ambit the replacement of an article which was not in need of any repair but was lost by theft, while in the Possession of the lessee, as has happened in the case, on hand. The true meaning of the said expression can be gathered from the Law Lexicons referred to hereunder:
(1) Murray's New English Dictionary 'Repair: The act of restoring to a sound or unimpaired condition; the process by which this is accomplished; the result attained,
Relative state or condition of something admitting or susceptible of restoration in event of, actual or possible damage or decay, chiefly of buildings or other composite structures and in phrase, in good (or bad) repair'.
(2) Ballantine's Law Dictionary (1954): 'Repair:.....the word 'repair' contemplates an existing structure or thing which has become imperfect by reason of the action of the elements, or otherwise. Work done on a structure which has not been demolished, but which has been damaged. The word is to be distinguished from reconstruction which properly applies only to work done upon a structure which had been demolished in whole or in part.'
(3) Stroud's judicial Dictionary (third edition);
'Repair: To repair means to make good defects, including renewal where that is necessary, i. e. patching, where patching is reasonably practicable and, where it is not, you_ must put in a new piece...... But 'repair does not connote a total reconstruction. (emphasis supplied - Reproduced from : AIR1960Mad24 ).
10. Viewed in the light of the above enunciations, I am unable to agree with the view of the court below that the facts of the present case fall within the scope of the provisions of Section 44 of the H. R. C. Act, thus enabling the lessee to recover the cost of replacement of the meter.
11. In the result, this petition succeeds and is accordingly allowed. Consequently, the suit stands decreed for a sum of Rs. 200/- only with costs. In the peculiar circumstances of the case, there will be no direction for payment of Interest, current or future. If the sum of Rs. 122/- originally decreed has already been paid in court as indicated in the judgment impugned, there will be a decree for the balance of Rupees 78/- only. The costs payable however shall be computed on the basis of principal sum of Rs. 200/-. Parties are directed to bear their own costs in this Court.
12. Petition allowed.