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P. Achuthan Pillai and anr. Vs. Ameena Bai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberS.A. Nos. 676 and 677 of 1977-D
Judge
Reported inAIR1982Ker178
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 13(4) and 17(2)
AppellantP. Achuthan Pillai and anr.
RespondentAmeena Bai
Appellant Advocate S. Narayanan Poti,; S. Sankarasubban and; George Mathew
Respondent Advocate T.S. Venkiteswara Iyer and; P.K. Balasubramaniyam, Advs.
DispositionAppeals dismissed
Cases ReferredS. Subramaniam v. Rajaram
Excerpt:
.....the suit is that for the failure of the plaintiff to carry out the repairs to the godown and the jetty the premises were rendered unfit for use to the defendant, he had to incur expenses by hiring other premises for the purpose of his business and hence the plaintiff is not entitled to recover arrears of rent for the period claimed in the two suits. 4. the trial court held that the claim for abatement of rent cannot be sustained for failure of the plaintiff to repair the premises but the defendant is however entitled to compensation for the loss incurred by him on account of the plaintiff's failure to carry out normal repairs and rendering the premises unfit for the defendant's use. according to the lower appellate court the defendant is not obliged to continue the tenancy in respect..........the suit is that for the failure of the plaintiff to carry out the repairs to the godown and the jetty the premises were rendered unfit for use to the defendant, he had to incur expenses by hiring other premises for the purpose of his business and hence the plaintiff is not entitled to recover arrears of rent for the period claimed in the two suits. as per the additional written statements filed in both the suits, the defendant claims set off of the arrears of rent towards the damages suffered by him in respect of which he has made counter claims for both the periods. requisite court-fee was also paid on the counter claims of the defendant.4. the trial court held that the claim for abatement of rent cannot be sustained for failure of the plaintiff to repair the premises but the.....
Judgment:

P.C. Balakrishna Menon, J.

1. Second Appeal No. 677 of 1977 arises out of O. S. 36/68 and Second Appeal No. 676 of 1977 arises out of O. S. 56/71 on the file of the Sub-Court. Cochin. Both the suits are for arrears of rent in respect of the premises ]et out to the defendant by the plaintiff as per the terms of Ex. A1 agreement dated 20-8-1958. O. S. No. 36/68 is for a period of three years from May 1965 and O. S. No. 56/71 is for a period of three years from May 1968.

2. The defendant is the appellant in both these Second Appeals. As per Ext. A1 the premises described therein including a godown and a jetty for loading and unloading cargo from the backwaters of Cochin, were let out to the defendant by the plaintiff on a monthly rent of Rs. 150/-. The rent wag in arrears for the three years period aforesaid and the two suits are filed for recovery of arrears of rent. at the rate fixed in Ext. A1.

3. The defence to the suit is that for the failure of the plaintiff to carry out the repairs to the godown and the jetty the premises were rendered unfit for use to the defendant, he had to incur expenses by hiring other premises for the purpose of his business and hence the plaintiff is not entitled to recover arrears of rent for the period claimed in the two suits. As per the additional written statements filed in both the suits, the defendant claims set off of the arrears of rent towards the damages suffered by him in respect of which he has made counter claims for both the periods. Requisite court-fee was also paid on the counter claims of the defendant.

4. The trial court held that the claim for abatement of rent cannot be sustained for failure of the plaintiff to repair the premises but the defendant is however entitled to compensation for the loss incurred by him on account of the plaintiff's failure to carry out normal repairs and rendering the premises unfit for the defendant's use. On these findings both the suits were decreed and the counter claims in both the suits were also decreed, to the extent of the arrears of rent due for the periods covered by both the suits. The decree for damages was allowed to be set off against the decree in the suit. In substance and effect, the trial court dismissed both the suits for arrears of rent.

5. In appeal, the lower appellate court has reversed the decision of the trial court and has decreed both the suits dismissing the defendant's counter claims. The lower appellate court has held that the defendant is not entitled to claim abatement of rent on account of the breach of covenant by the plaintiff to repair the premises. The defendant had an obligation to carry out the repairs himself and claim the expenses of repairs to be adjusted towards the rent due for the premises. The appellate court has also held that in any view of the matter, the defendant had a duty to mitigate the damages by carrying out the necessary repairs and claiming set off of such amounts as he had to spend for the repairs, towards the rent payable by him. According to the lower appellate court the defendant is not obliged to continue the tenancy in respect of the premises rendered unfit for his use and for the failure of the plaintiff to carry out the necessary repairs, the defendant is not entitled to claim abatement of rent due under the agreement of tenancy. The defendant did not press the claim for damages an account of the expenses incurred for finding alternative accommodation for carrying on his business.

6. The Seamed Counsel for the appellant submits that the defendant is entitled to damages equal to the arrears of rent in both the suits for the failure of the plaintiff to carry out she necessary repairs to the premises. The premises were rendered unfit for use for the plaintiff's failure to repair the same. Hence the defendant has suffered damages which at any rate should be found as equal to the arrears of rent claimed. 7. Ext. A3 dated 7-8-1964 is a letter by the defendant to the plaintiff calling upon him to construct the loading bridge and jetty which had been completely collapsed and to repair the go-down and the compound wall of the premises. Ex. B9 dated 11-9-1964 is the plaintiff's reply to Ext. A3 wherein it is alleged that the damage is due to the negligence of the defendant, the plaintiff is not bound to reconstruct the loading bridge, jetty etc. and the defendant is called upon to restore the premises to its original conditions. In Ext. A4 dated 26-9-1964 the defendant denies negligence and asserts that he is entitled to the use of the loading bridge and the jetty, as integral part of the leasehold premises. Ext. A5 is a further notice by the defendant to the plaintiff informing him that unless the essential repairs of the premises and the reconstruction of the jetty are not done within five days from the receipt of the notice, necessary steps would be taken for the repairs done and the amenities restored. The defendant thereafter applied to the Accommodation Controller for a direction under the provisions of the Kerala Buildings (Lease and Rent Control) Act to be issued to the plaintiff for carrying out the necessary repairs and for the restoration of the amenities to the defendant. Ext. A7 dated 15-10-1965 is the order of the Accommodation Controller directing the plaintiff to repair the premises and reconstruct the jetty and the bridge at an estimated cost of Rs. 2,560/- within two weeks from the date of receipt of the order, on the failure of which the defendant is permitted to carry out the repairs and reconstruction and recover the cost from the rent payable to the plaintiff. Apparently, the plaintiff had carried out certain repairs and had reconstructed the loading bridge and the jetty. After Ext. A7 order of the Accommodation Controller the defendant appears to have issued a notice to the plaintiff complaining against the insufficiency of the repair and the reconstruction carried out by the plaintiff. The notice itself is not produced in court. Ext. B7 dated 12-7-1966 is the reply by the plaintiff to the defendant stating that the jetty had been reconstructed with standard materials and the godown will be fully repaired after the requisite quantity of cement is available for the purpose. The defendant took no further steps to enforce Ext. A7 order of the Accommodation Controller, nor did ha carry out the repair of the premises and reconstruction of the jetty as authorised by Ext. A7 order and claim recovery of costs from the rent due on the premises. The jetty mentioned in Ext. A1 lease deed is an amenity attached to the premises leased. The subject matter of the lease is a godown and its premises required by the defendant for storage goods. The loading bridge and jetty were required for loading and unloading cargo and it is an amenity attached to the premises leased.

8. In Mariyakutty Umma v. Moosakutty Haji (1969 Ker LT 990) what is an amenity within the meaning of the Kerala Buildings (Lease and Rent Control) Act, is considered at page 991 as follows :

2............'The Act Itself nowhere defines the term 'amenity'. In the absence of a statutory definition we have essentially to be guided by the dictionary meaning of the term. In the Concise Oxford Dictionary, one of the meanings given for 'amenity' is 'pleasantness (of places, persons etc.).' This shade of the meaning of the term is seen elaborated in the legal dictionaries and other authorities which were cited, and to which I shall refer. For instance, in the 3 Corpus Juris Secundum 1944 the word 'amenity has been explained as follows :-- 'Amenity : In real property law, such circumstances, in regard to situation, outlook, access to a watercourse, 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.' The above exposition emphasises that the expression 'amenity' in relation to immovable property signifies pleasant circumstances, or features or advantages.'

This decision refers to a decisions of the Mysore High Court in UUal Dinkar Rao v. M. Ratna Bai (AIR 1958 Mys 77) where a bath room and a cow-shed were considered as amenities in respect of a building, and to an another decision of the Madras High Court in S. Subramaniam v. Rajaram (AIR 1966 Mad 355) where a common room in a building having several apartments in the occupation of tenants was held to be an amenity within the meaning of the Madras Buildings (Lease and Rent Control) Act. After considering the content and meaning of the expression 'amenity' this Court in 1969 Ker LT 990 held that a drain to discharge refuse water and garbage was an amenity attached to the demised building. In the light of principle laid down in the decision in 1969 Ker LT 990 and the authorities referred therein, there can hardly be any doubt that the jetty and the loading bridge are amenities attached to the building leased under Ext. A-1. The order Ext. A7 by the Accommodation Controller directs the plaintiff to reconstruct the jetty and bridge and carry out the repairs of the building at a cost of Rs. 2,560/- fixed in the order itself.

9. Sub-section (4) of Section 13 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 empowers the Accommodation Controller to make an order directing the landlord to restore the amenities withheld by him and for the purpose of enforcement of such orders the Accommodation Controller is invested with all the powers of a Civil Court in executing a decree for injunction or for specific performance. Sub-rule (5) of Rule 32 Order 21 provides for the execution of decrees for specific performance or injunction. The defendant has taken no steps for enforcement of Ext. A7 order of the Accommodation Controller. Sub-section (2) of Section 17 of the Act, enjoins the landlord to attend to the periodical maintenance and necessary repairs of the building and if the landlord fails to attend to such maintenance and repairs within a reasonable time after notice is given by the tenant, the Accommodation Controller is empowered to direct on application by the tenant that such maintenance and repairs may be attended to by the tenant and that the charges and costs thereof may be deducted with interest at 6% per annum from the rent payable to the landlord. Ext. A7 order itself authorises the tenant to carry out the repair of the building and the reconstruction of the jetty and loading bridge on the landlord's failure to comply with Ext. A7 order and to adjust the costs towards the rent due from him. Admittedly the defendant has not carried out any repairs nor has he reconstructed the jetty and the loading bridge. Under these circumstances, it is not possible to hold that the plaintiff had failed to comply with the direction of the Accommodation Controller in Ext. A7 order. The learned Counsel for the appellant submits that in view of Ext. A7 notice by the plaintiff to the defendant static that the directions of the Accommodation Controller had been carried out and prohibiting the defendant from carrying out the repairs the defendant was justified in not having undertaken to carry out the repairs of the building and reconstruction of the jetty and deduct the expeness from the rent. I do not see any merit in this contention in view of the specific provision of Sub-section (4) of Section 13 and Sub-section (2) of Section 17 of the Kerala Buildings (Lease and Rent Control) Act. These provisions confer certain rights on the tenant on the failure of the landlord to carry out repairs and for restoration of amenities attached to the premises, leased. Having invoked these provisions of the Act and having obtained an order in his favour, the defendant would have certainly worked out his remedies under the Act in enforcement of Ext. A7 order. Since it is admitted that the defendant took no steps to enforce Ext. A7 order it should be held that Ext. A7 order had been complied with by the plaintiff and the defendant had nothing further to enforce under the said order. The defendant is therefore not entitled to any relief on his counter claims in the written statement against the plaintiff's claim for arrears of rent. In this view of the matter, it is unnecessary for me to consider whether the defendant is entitled to claim abatement of rent for plaintiff's breach of covenant to repair the premises. Both these Second Appeals fail and are accordingly dismissed. There will be no order as to costs.


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