G.S. Lal, J.
1. This civil revision under Section 115, C. P. C. is directed against an order of Munsif East, Ballia, passed in proceedings under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, (hereinafter referred to as the 'Act').
2. Bishundeo Singh and Tribeni Prasad, who are opposite parties in the revision, had filed an application before the Munsif under the aforesaid section on 14-9-1969. They were respectively tenants of two adjoining shops one of which had only one room and the other two rooms. The application was filed against two persons, who were the landlords and who are the applicants before us. It was given out in the application that the landlords wanted to reconstruct their building and had demolished the upper portion existing on the shops in question, with the result that the roofs of the shops had got damaged and because of the removal of stone-slabs from, the adjoining roof, a small upper portion of one of the walls of one shop had also fallen. Upon making the application a commission was also got issued in the name of the Amin, who filed a report confirming the need for repairs. He stated that holes had crept in some of the walls and the roof badly needed repairs. He estimated the expenses of repairs at Rs. 1,135/-.
3. There was a parallel suit also between the parties as the tenants apprehended that the landlords would demolish their shops. A commission had been got issued in the name of a lawyer in that case and a copy of the report of the Commissioner was filed in the aforesaid proceedings under Section 7-E. It may be stated at this very place that in 1970 the landlords also got a commission issued in the proceedings under Section 7-E and thus there were three reports before the Munsif.
4. The application of the tenants was contested by the landlords. They gave out that there was no liability on them to put the shops in their formal state because they required reconstruction and not repairs. Their case further wag that the shops had been constructed after 1-1-1951 and therefore the U. P. (Temporary) Control of Rent and Eviction Act, 1947 was not applicable and the application under Section 7-E of that Act was not maintainable.
5. The learned Munsif recorded evidence and on the basis of oral and documentary evidence came to the conclusion that the shops were pre-1951 construction and were covered by the provisions of the Act in question. He was also of the view that what the landlords had to do in order to put the shops in a use-able state was in the nature of repairs and not reconstruction. He, therefore, passed the impugned order allowing the application of the tenants and directing the landlord opposite parties to carry out the repairs in the roofs and the walls and to make the shops in dispute wind-proof and water-proof. Two months' time was given for carrying out this work. There was an additional provision in the order that in case of default the applicants, that is to say, the tenants, would be entitled to get the premises repaired at their cost, the amount of which would not exceed Rs. 750/- and they would be entitled to adjust the expenditure towards the rent.
6. Three points have been raised before us for decision. One is that the decision of the learned munsif on the point of the shops being pre-1951 constructions is erroneous. Relying on the decision of the Supreme Court in Chaube Jagdish Prasad v. Ganga Pd. Chaturvedi, AIR 1959 SC 492 learned counsel appear-ing for the applicants contends that the question being one which relates to a jurisdictional fact, it is open to this Court to consider the correctness of the finding. We have been taken through the evidence and we are of opinion that the learned Munsif was right in the conclusion which he reached on a consideration of the oral and documentary evidence and that thesaid conclusion cannot be said to be wrong.
7. The second point is that Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act makes provision about repairs and not reconstruction. In this connection certain decisions of this Court have been cited before us, as also a decision of the Calcutta High Court. These are Bepen Behari Chatterji v. Munsif West, Allahabad. 1959 All LJ 227; Ram Krishna Gupta v. Hari Krishna Tandon, 1958 All LJ 435; N. S. Datta v. K. P. Tandon, 1963 All LJ 691 and Sri Soorajmal Nagarmalla v. The Indian National Drug Co. Ltd., AIR 1956 Cal 187. In the first case that is of Bepen Behari Chatterji. 1959 All LJ 227 (supra) a learned Single Judge of this Court has held that the section contemplates repairs and not reconstruction. We do not find the last mentioned three decisions to be quite relevant to the point before us. But in any case we have no reason to differ from the contention of the learned counsel for the applicants that the section makes provision for repairs and not reconstruction.
8. The question, however, arises what is the scope of the word 'repairs'. If we look to a particular wall by itself and say that it requires repairs; it would not be the same thing as its reconstruction. But if we look to an accommodation and speak of repairs in the accommodation so as to make it wind proof and water proof, it does not mean that repairs will not include reconstruction of any particular portion of the accommodation such as a wall or even the roof of an apartment in the accommodation. Reconstruction of the accommodation will mean substantially rebuilding the whole of it. The learned Munsif himself has cited a decision of this Court in respect of which only a note is to be found in the Journal section of 1959 All LJ at page 73. In addition, learned counsel for the opposite parties has referred us to a decision of the Mysore High Court in Ullal Dinkar v. M. Ratna Bai, AIR 1958 Mys 77. Both of these decisions indicate that if the roof of an accommodation falls down then the relaying of the roof would be 'repairs'.
So really what we have to determine In the instant case is whether what is required is reconstruction of the shops or repairs which may include relaying of some roofs or reconstruction of some walls. When the Amin visited the site he had found that the roof was broken at places and there were holes in some of the walls and the shops were in bad condition. He had also reported that if the upper storey had not been demolished, then there would have been no necessity for any repairs. He had not reported that any out of the two shops had fallen down completely.
The report of the Commissioner appointed in the suit between the parties also did not show the complete falling down of any of the shops, though he found cracks in the roof at some places and also stated that cracks in the surface of the roof were due to the falling of the walls of the roof of the first storey which had been demolished by the landlords. In regard to this report the learned counsel for the applicants raised an objection that the report could not be read in evidence without proof as this report was given in another case. We do not agree with this contention. The report has been given in a suit between the same parties and forms parts of the record of that case and a certified copy of the same could be read in evidence in the proceedings under Section 7-E without formal proof. It was in the third report which was given by a vakil Commissioner that it was stated that a room had totally fallen down and it required reconstruction. In regard to the rest of the two accommodations, there was only the report of damage, including cracks.
It is, therefore, obvious that the shops had not completely fallen down at any time and there was no question of reconstructing them in order to enable the tenants to continue to enjoy the tenancy. We may also point out that no person can be allowed to take advantage of his own wrong and if because of the fact that the landlords had not carried out the necessary repairs when damage was caused to the shops on their demolishing the upper storey with the result that further damage was caused in course of time, they cannot plead that the accommodation as a whole will require reconstruction. We have to look at the matter with reference to the date on which the application under Section 7-E was filed. At that time even the roofs could possibly have been set right by only repair without the necessity of reconstruction and the walls could have been repaired by plugging the holes. In our opinion, therefore, this is not a case which is not covered by the provisions of Section 7-E in so far as it lays the responsibility upon the landlord to keep his accommodation waterproof and wind-proof.
9. The third and the last point raised before us is that the order of the learned Munsif is invalid in so far as it is a composite order under Sub-sections (5) and (6) of Section 7-E, Sub-section (5) provides that if the landlord does not appear in obedience to the notice issued to him on an application of the tenant that the landlord has neglected to carry out the repairs and he fails to satisfy the Munsif as to why he should not be directed to carry out the repairs or such of them as the Munsif finds the landlord to be bound to make, the Munsif shall direct the landlord to carry out the repairs within a time to be fixed. Sub-section (6) provides as to what would be the further action which the Munsif should take if the landlord still fails to carry out the repairs in accordance with the directions given in Sub-section (5). The provision is that the Munsif may require the tenant to submit an estimate of the cost of such repairs and after considering the estimate and taking such evidence as he may consider necessary, the Munsif may permit the tenant to carry out the repairs at a cost not exceeding such amount as may be specified in the order, and to recover such costs from the landlord.
10. Learned counsel for the applicants contends that the stage for action under Sub-section (6) would arise only after an order under Sub-section (5) has been passed and the direction given therein has not been carried out by the landlord. According to him if the Munsif proceeds simultaneously to pass an order under Sub-section (6) as well, it would be contrary to the provisions of Section 7-E. In support of his contention the learned counsel has cited before us a decision of B. D. Gupta, J. of this Court in Mohd. Mustafa v. Haji Bande Karim, 1970 All WR (HC) 585. We may note at the outset that the revision was referred to a Division Bench because the learned Judge, who admitted it, doubted the soundness of the aforesaid decision.
11. The question arising for consideration in this case is as to whether Section 7-E purports to lay down a mandatory rule for the action under Sub-section (6) to be taken only after an order has been passed under Sub-section (5) and the time provided therein for repairs being carried out by the landlord has elapsed without repairs having been done. In the absence of the provision being mandatory, a composite order under Sub-sections (5) and (6) will not necessarily be invalid. To decide this point we have to look into the object underlying the provisions of Section 7-E. The only significance which appears to us to lie in making a provision for further action in Sub-section (6) after the landlord has failed to abide by the order of the learned Munsif under Sub-section (5) is that the repairs should be carried out at the earliest opportunity to avoid inconvenience to the tenant. If the Munsif proceeds to enquire into the amount which will be needed for the repairs while enquiring whether any repairs are to be carried out by the landlord under the provisions of Section 7-E, that would unnecessarily delay the passing of the order directing the landlord to carry out the repairs. If, however, the landlord fails to abide by the order passed under Sub-section (5) then the Munsif may determine the amount up to which the tenant should be allowed to spend in carrying out the repairs himself with a right to recover the same from the landlord. In this view of the matter, if while the enquiry about the liability of the landlord to make repairs is being determined, material comes before the Munsif enabling him to determine the amount upto which the expenditure on repairs should be allowed to the tenant, we do not see why the Munsif should not pass a composite order, thereby enabling the tenant to take up the work of repairs as soon as the period fixed for repairs being carried out by the landlord has expired. We are, therefore, unable to agree with the view taken by brother B. D. Gupta, J. in the aforesaid decision and in our opinion the passing of a composite order would not be invalid. All that would be necessary for the Munsif while passing a composite order is to see that the order fixing the amount under Sub-section (6) is based on some material as mentioned in Sub-section (5).
12. In the instant case learned counsel for the applicants has also contended that there was no material before the learned Munsif to come to the conclusion that a sum not exceeding Rs. 750/-be allowed for the repairs being carried out by the tenants. Learned counsel has at no stage contended that this amount is excessive. All that he has stated is that this amount has been arbitrarily fixed. We are unable to agree with this contention. We find that the Amin had in his report given an estimate of the likely expenditure in the repairs. He had estimated the amount at Rupees 1135/-. There was thus an estimate before the learned Munsif and the amount fixed by him is much below that estimate. The tenant would possibly have questioned the fixation of the amount at Rs. 750/ as against the estimate of Rs. 1135/-, but we do not see how the landlords can feel aggrieved by the same being fixed at Rs. 750/- only.
13. In the result we find no force in this revision which we dismiss with costs. The order staying the operation of the order of the learned Munsif is vacated.