B. Dayal, J.
1. This is a defendant's Second Appeal. He was a tenant of the house in dispute at Rs. II/4/- per month. In the rent note there was a condition that the landlord would be liable to make all the repairs necessary for the house and pay house and water taxes. The house needed repairs and the tenant sent a notice to make the necessary repairs but the landlord did not care to do so. Ultimately the tenant got the repairs done and the trial Court has accepted that a sum of Rs. 190/- was spent by the tenant on the repairs. The lower appellate Court has not upset that finding and has proceeded upon the assumption that a sum of Rs. 190/- was spent. The plaintiff gave notice demanding Rs. 78/12/- as arrears of rent and Rs. 19/8/- as compensation for use and occupation after termination of the tenancy on the Ist of March, 1953. The defendant did not pay nor did he vacate the house. Hence the suit was filed. Among other things the defendant contended that he had spent Rs. 190/- on repairs which he was entitled to deduct from the rent and he was not a defaulter.
2. Both the Courts below have disallowed this plea on the ground that the defendant was not entitled to deduct more than one month's rent as provided by Section 7-E (3) of the U. P. (Temporary) Control of Rent and Eviction Act. The Courts therefore found that the balance of arrears of rent was still due and since the defendant did not pay the same within one month from the date of notice, he was liable to ejectment. The Courts below have therefore granted a decree for ejectment and Rs. 91/-for arrears of rent and future pendente lite and mesne profits.
3. Against this decree the present Second Appeal has been filed in this Court. The contention of the learned counsel for the appellant is that the Courts below were wrong in applying the provisions of Section 7-E (3) of the U. P. (Temporary) Control of Rent and Eviction Act when rights of the parties were governed bySection 108 of the Transfer of Property Act.
4. Since no one appeared for the respondent, the arguments of the learned counsel for the appellant were heard ex parte. Learned counsel for the appellant has brought to my notice Ext. 2 rent deed on record. This document has been admitted on behalf of the defendant and in this there is an express condition that it would be the responsibility of the landlord to make the necessary repairs. There was thus an agreement between the parties under which the landlord was bound to make the' necessary repairs. Section 108(B) (f) of the Transfer of Property Act is as follows:
'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.''
Under this provision it was the right of the tenant to deduct the expenses incurred on repairs from the rent.
5. The Court below took the view that Section 7-E(s) of the U. P. (Temporary) Control of Rent and Eviction Act curtailed the right to the tenant. This Sub-section is in the following words :
'7-E(3)-- If the landlord fails to carry out annual white washing, recolouring and periodical repairs, the tenant may by notice require him to carry out the same within one month from the date of notice. If the landlord fails to do so within the period as aforesaid, the tenant may himself carry out the same at a cost not exceeding one month's rent for the accommodation and deduct the amount from the rent.'
This Sub-section limiting the right of the tenant to deduct only one month's rent is contrary to the provisions of the Transfer of Property Act. Where a case is clearly governed by the Transfer of Property Act, the rights of the tenant cannot be curtailed by local Act unless the Transfer of Property Act is amended and the tenant was right in relying upon his rights under the Transfer of Property Act and deducting the cost of repairs from the rent.
6. I, therefore, allow the appeal, set aside thejudgment of the courts below and dismiss theplaintiff's suit with costs throughout.