T.S. Misra, J.
1. This is a defendant's appeal. The plaintiff filed a suit against the defendant for his ejectment from the accommodation in question and for recovery of arrears of rent and future mesne profits. He alleged that the defendant had failed to pay the rent from 19th May, 1963 and onwards despite demands. Ultimately a composite notice dated 3-12-1963 was served on the defendant on 5-12-1963 demanding arrears of rent and determining the tenancy. As the defendant failed to comply with the same, a suit for the aforesaid relief was filed. The defendant contested the suit on variety of grounds. He, inter alia, alleged that as the house needed repairs, he gave a notice to the plaintiff to carry out those repairs. The plaintiff, however, failed to do so. Consequently the defendant carried out the repairs and incurred an expense of Rs. 20/- in that connection. Deducting this amount from the rent he remitted the balance amount to the plaintiff which the plaintiff refused to accept. He was, therefore, not liable to be evicted.
2. The trial Court decreed the suit for arrears of rent but dismissed it for other reliefs claimed by the plaintiff holding that the defendant did not commit wilful default in payment of rent. The plaintiff filed an appeal from the said decree. The appellate Court below reversed the finding of the trial Court and held that the defendant No. 1 committed wilful default in payment of rent He accordingly allowed the appeal and decreed the suit.
3. Aggrieved by the said decision the defendant has filed this second appeal. The short point urged before me by the learned counsel for the appellant was that the defendant did not commit wilful default in payment of rent inasmuch as the defendant was entitled to deduct a sum of Rupees 20,00 which the defendant had spent in carrying out the necessary repairs in the accommodation in suit. He stated that there was no provision in the U. P. Cantonment Rent Control Act like Section 7-E of the U. P. Act, in of 1947 to compel the landlord to carry out certain necessary repairs and keep the accommodation windproof and water proof. He, however, placed reliance on Sub-clause (f) of Section 108 of the Transfer of Property Act which reads 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.' In order to apply this Sub-clause (f) of Section 108, it is necessary to establish the following ingredients:--
(1) that a notice was given by the lessee to the lessor to carry out the repairs in the premises in question within a reasonable time.
(2) that the lessor neglected to make those repairs despite service of that notice, on him.
(3) that the repairs asked to be carried out were such which the lessor was bound to carry out himself.
(4) that as the repairs were not made by the lessor the lessee carried out those repairs and incurred expenses thereon. In the instant case, the defendant had given a notice requiring the plaintiff to carry out certain repairs in the premises in question. It is also admitted that repairs were not carried out by the plaintiff in compliance with that notice. It was also proved that the defendant carried out the repairs thereafter and spent a sum of Rs. 20/- in that connection. However, it was also to be established by the defendant that the plaintiff was bound to make those repairs to the property. The appellate Court below has found that there was no agreement in writing between the parties relating to the question of repairs. The defendant had also not pleaded any oral agreement in that behalf. It was also not established that the plaintiff had ever undertaken to carry out the repairs in question. No provision of law was cited or could be cited on behalf of the defendant compelling the plaintiff landlord to carry out the repairs in a premises which was admittedly situated in the Cantonment area in Meerut and to which the provisions of U. P. Act No. 3 of 1947 did not apply. That premises are in fact governed by the provisions of U. P. Cantonment Rent Control Act. There was no provision in this latter Act making a landlord liable to carry out repairs in the premises let out to a tenant. Sub-clause (f) of Section 108 referred to above does not by itself make a landlord liable to carry out the repairs. It contemplates a situation where either under an agreement, custom or law the landlord was bound to carry out the repairs. It would not apply to any other circumstances. It was the duty of the defendant to establish by evidence that the plaintiff was bound either under an agreement or by law or custom or usage to make repairs in the premises in question. The defendant could not establish any of them. That being so the appellate Court below was justified in holding that the defendant was not entitled to deduct a sum of Rs. 20/- from the arrears of rent outstanding against him on the date of the demand. Obviously the defendant knew that he had to pay the amount in question but he deliberately deducted the amount of Rs. 20/- which he had spent in carrying out the repairs. He, therefore, in my view, wilfully committed default in making payment of rent. The appellate Court below was, therefore, correct in holding that the defendant had committed wilful default in payment of rent. No other point was argued.
4. In the circumstances the appeal fails and is accordingly dismissed with costs.