1. This revision petition is filed by the petitioner-tenant against the opponents- landlady and her husband -against the order passed by the learned District Judge, Mehsana, in Civil Appeal No. 115 of 1970, filed by the opponents defendants in the District Court, Mehsana. That appeal was filed by them against the order passed by the learned Civil Judge, Senior Division, Mehsana, in Regular Civil Suit No. 14 of 1969, filed by the petitioner (plaintiff) against the opponents-defendants.
2. The petitioner is a tenant of a house bearing Municipal Census No. 3/ 1763 situate in Vanta's Mahad in the town of Mehsana where the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which will be herein after referred to as 'the Act') is in force. Opponent No. 1 purchased the said house sometime in 1967 and opponent No. 2 is her husband. They are residing in a rented house with one house intervening between that house and the house in occupation of the petitioner-tenant. It was the petitioner's case that with an object to evict the plaintiff (petitioner) from the suit house, some days prior to 31st August, 1967, opponent No. 2, at the instigation of opponent No. 1, demolished the eastern wall of the suit house. He also demolished a Dagla connected with the eastern wall and made that house open with a view to see that the petitioner could not be in a position to live there and would vacate. After the said demolition, the petitioner gave a notice to them on 31st August, 1967 for replacing the wall, but opponent No. 1 gave evasive reply and did not comply with it. On the second notice sent to her being refused, he was compelled to carry out the repairs himself. He incurred a total expenditure of Rs. 785 in making those repairs as detailed in the plaint. That notice charges came to Rs. 22.75 paise, and foregoing a part of the claim, he filed a suit for recovery of Rs. 800.
3. Opponents, by their written statement, Ex. 12, contended inter alia, that the wall which had fallen was in a dilapidated condition for which they had also obtained the permission of the municipality to reconstruct the same. It had fallen on its own on account of rain. They wanted to repair, but they were not allowed to do so. Petitioner having repaired the same without their consent, he is not entitled to claim anything from them. Quantum of the claim was also challenged.
4. Both the Courts below reached the conclusion that the wall had fallen down on account of rains. The learned trial judge, relying upon the provisions of Section M (b) of the Transfer of Property Act, 1882, reached the conclusion:
'It is the lessor's liability to carry out the repairs which he is bound to make, and if he does not do so, the lessee may make the same himself. In my opinion the provisions of the Rent Act do not in any way curtail this ordinary law liability of the lessor. As can be seen from the aforesaid photographs, the house, by the falling of the wall, was practically left open to the sky and also open to the danger and defendant No. 1 did not carry out the repairs though called upon to do so.'
He, therefore, recorded a finding that the plaintiff has been able to prove the claim regarding repairs to the extent of Rs. 410.40 paise. Furthermore, he was entitled to Rs. 15 as reasonable notice charges. He, therefore, decreed the plaintiff's suit to the extent of Rs. 425.40 paise with proportionate costs and running interest at the rate of 6 per cent. per annum from the date of the order till realisation against defendant No. 1. Defendants were ordered to bear their own costs.
5. The learned District Judge, in the appeal, reached the conclusion that in the absence of express contract, that it is the lessor's liability to make repairs, there was no liability of the lessor to make such repairs under the provisions of Section 108 of the Transfer of Property Act. As regards the liability of the lessor to keep the leased premises in good repair, the landlord is liable to a certain extent, if he neglects to make any repairs, which he is bound to make under sub-section (1) of Section 23 of the Act, within a reasonable time after a notice is served upon him by post or in any other manner by a tenant, and the tenant is entitled to make the repairs -and deduct the expenses of such repairs from the rent or otherwise recover from the landlord. But, in the opinion of the learned District Judge, the amount which he could recover or deduct from the landlord, is controlled by the second proviso of that sub-section (2) of Section 23 of the Act, which reads :
'Provided further that the amount so deducted or recoverable in any year shall not exceed one-fourth of the rent payable by the tenant for that year excluding therefrom one-fourth of the proportionate taxes in respect of his premises pay able to a local authority for that year.'
The learned District Judge observes that, according to the finding arrived at by the learned trial Judge, the expenses incurred in these repairs come to Rs. 410.40 paise. The rent charged in respect of the suit premises was Rs. 10 per mouth, meaning thereby, that the annual rent payable was Rs. 120. In view of the second proviso, according to the learned District Judge, the liability of the landlord was limited to the extent of only one-fourth of the amount of annual rent, which would come to Rs. 30. The tenant would, therefore, be entitled to have the amount of Rs. 30 only, irrespective of the position that he may have spent Rupees 410.40 paise for effecting the repairs in question. He would be further entitled to a sum of Rs. 15 by way of reasonable notice charges. He, therefore, varied the decree passed by the trial Court, allowing the -appeal partly and decreed the petitioner's suit only to the extent of Rs. 45 against defendant No. 1 (opponent No. 1). As the plaintiff. had substantially failed in the suit, according to the learned District Judge, he ordered that the parties should bear their own costs in the suit. Plaintiff shall, however, pay the costs of the appeal to the defendants-opponents and bear his own.
6. Mr. J. C. Sheth, appearing for the petitioner, has urged that the learned District Judge has committed an error of law in interpreting Section 23 of the Act. Section 23of the Act deals with 'Landlord's duty to keep premises in good repair'. There is non-obstante clause in that sub-section (1) of Section 23 of the Act. It reads:
'(1) Notwithstanding anything contained in any law for the time being in force and in the absence of an agreement to the contrary by the tenant, every landlord shall be bound to keep the premises in good and tenantable repair.'
In view of these clear provisions, in spite of the fact that under the Transfer of Property Act, lessor will be liable to make such repairs only if there is an express contract, the lessor, in view of these provisions, is bound to keep the premises in good and tenantable repairs in the absence of the agreement of contract by the tenant. It was not suggested in any of the Courts below or it is not suggested in this Court, that there was any agreement to the contrary by the tenant. It is, therefore, evident that it was the lessor who was bound to keep the premises in question in good and tenantable repair.
7. Mr. C. V. Jani, appearing for the opponents, has submitted that one wall had fallen down, according to the findings arrived at by the trial Court, on account of rains. That wall had to be reconstructed. It could not, therefore, be said that it was a question of effecting repairs. This argument is devoid of any merits. The lessor was bound to keep the premises in good and tenantable repairs. If one wall out of the four walls falls down, the tenant will not be able to use the premises in the condition in which he was entitled to use on account of the lease. It will be open to sky. There will be danger to himself as well as to his property if this wall is not constructed. It would be undoubtedly a tenantable repair. The landlord was bound to keep these premises leased in good and tenantable repair.
8. Sub-section (2) of Section 23 of the Act, which is material for our -purposes and which deals with the liability of the landlord or the lessor, reads :
'(2) If the landlord neglects to make any repairs, which he is bound to make under sub-section (1), within a reasonable time after a notice is served upon him by post or in any other manner by a tenant or jointly by tenants interested in such repairs, such tenant or tenants may themselves make the same and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord.'
A Plain wording of this sub-section (2) of Section 23 of the Act, leaves no doubt that if the tenant, after the landlord neglects to make any repairs, which he is bound to make under sub-section (1), within a reasonable time after a notice is served upon the landlord, the tenant himself is entitled to make those repairs. He is further entitled to deduct the expenses of such repairs from the rent. He is also entitled to recover them from the landlord otherwise by deducting from the rent. There is no limitation placed in this sub-section either for deduction or for recovery of such expenses from the landlord. On the contrary, the lessee (tenant) is entitled to deduct the expenses of such repairs from the rent or otherwise recover them from the landlord. It means that the entire amount is liable to be deducted from the rent or it could also be recovered otherwise than by the deduction from the landlord. That liability is not limited to any extent. The second proviso, on which -reliance has been placed by the learned District Judge as well as by Mr. Jani, appearing for the opponents before me, reads:
'Provided further that the amount so deducted or recoverable in any year shall not exceed one-fourth of the rent payable by the tenant for that year, excluding therefrom one-fourth of the proportionate taxes in respect of his premises payable to a local authority for that year.'
This proviso only indicates that the entire amount of expenses incurred cannot be deducted from the rent of one year at a time as well as the entire amount of expenses incurred cannot be at a time recovered from the landlord otherwise than by the mode of deduction. The reason for making such a proviso is obvious. if the entire amount is deducted at one time from the rent, or the entire amount is made recoverable from the landlord otherwise than by the mode of deduction, then the landlord would be placed in a very difficult position and the landlord may not be in a position to pay the amount at one time. That is why the legislature has, by this proviso, indicated that deduction in any one year will be only to the extent of one-fourth of the amount payable by the tenant for that year and that too, after excluding therefrom one-fourth of the proportionate taxes in respect of the premises payable to the local authority for that year. Similar will be the position in case the tenant does not want to deduct but wants to recover otherwise than by resorting to the mode of deduction, the tenant will not be entitled to recover the entire amount of the expenses incurred by him at one time. The amount recoverable from the landlord every year shall have to be fixed, taking into account one-fourth of the amount payable to the tenant for a particular year excluding 4herefrorn one fourth of the proportionate tax in respect of his premises payable to the local. authority for that year.
9. I will illustrate the Position by taking one example. If the amount of expenses incurred is fixed at Rs. 400 and the annual rent payable is Rs. 100, one fourth of that amount would come to Rs. 25. One-fourth of the taxes payable may be taken to be Rs. 5. The deduction would, therefore, be permissible to the extent of Rs. 20 for that particular year. The amount deducted will have, therefore. to be spread over for a period of 20 years. Similarly, if the tenant wants to recover it otherwise than by the mode of deduction, this amount of expenses which the lessor is bound to pay, will have to be spread over for a period of 20 years accordingly. That is the correct meaning and interpretation of sub-section (2) of Section 23 read with the second proviso. The learned District Judge's interpretation is erroneous in law. The decree passed by him, therefore, cannot be sustained in law.
10. The learned District Judge has not recorded a clear finding regarding the amount of expenses incurred for the repairs in question. In this behalf he has observed:
'Mr. Shah has disputed the estimate made by the Commissioner, but I need not enter into that controversy, because there is no dispute that the wall has been reconstructed by the plaintiff at his own expenses. The plaintiff must have spent at least more than Rs. 30 towards the reconstruction.'
It is thus evident that he has not entered into that controversy, as according to him, in view of his interpretation of the second proviso, the petitioner (131aintiff) was entitled only to Rs. 30 for the expenses. The matter will have, therefore, to be remanded to the appellate Court.
11. Revision petition is allowed and the judgment and decree passed by the learned District Judge in Civil Appeal No. 115 of 1970 are set aside and the matter is remanded to the appellate Court for deciding the appeal in the light of the directions given above and in accordance with law. Opponent No. 1 (original defendant No. 1) is directed to pay the costs of this civil revision application to the petitioner and to bear her own. Opponent No. 2 also to bear his own costs in this revision petition. Rule is made absolute to the aforesaid extent.
12. Revision allowed.