Mohammad Mustafa v. Haji Bande Karim — 1970 DIGILAW 178 (ALL)

ORDER B.D. Gupta, J. - This judgment will govern both the revisions which are before me as connected cases and arise out of two orders passed by the learned Munsif, Shahganj at Jaunpur, on 21-7-1969, in two cases arising out of proceedings under the UP (Temp.) Control of Rent and Eviction Act, 1947, (hereinafter referred to as the Act) between the same parties. 2. Haji Bande Karim, opposite-party in these revisions, made two applications in the court below, one of which was an application u/s 7-E of the Act and the other an application u/s 7-C of the Act. Mohammad Mustafa, the Applicant in these revisions, was the opposite party in both the applications. On the assertion that Haji Bahde Karim was the tenant of Mohammed Mustafa in accommodation consisting of a shop in the Notified Area of Shahganj, it was fayed in the application u/s 7-E of the ct that the landlord Mohammad Musfa be directed to repair the shop and make it wind and water proof, whereas in the application u/s 7-C of the Act it was prayed that as Mohammad Mustafa was refusing to accept rent attempted to be tendered to him, deposit of rent be accepted by the court. Both the applications were contested by Mohammad Mustafa on the assertion principally that the property, which was the subject matter of dispute, was, in such a dilapidated condition that it could not be treated as accommodation within the meaning of that expression in the Act. Both the applications were registered as separate cases and in each case a Vakil was appointed commissioner. At the hearing of the cases learned Counsel for the parties appear to have agreed upon evidence in both the cases being treated as common and after considering the evidence in both the cases, the learned Munsif passed the orders sought to be revised by the two revision petitions before me. In both the cases the learned Munsif held that the property which was the subject-matter of dispute was accommodation and both the orders under revision were passed after considering the merits of such other controversies as were relevant. In the case arising out of the application u/s 7-E of the Act, the learned Munsif passed the following order: The application u/s 7-E of the UP Act No. III of 1947 is allowed. In the case arising out of the application u/s 7-E of the Act, the learned Munsif passed the following order: The application u/s 7-E of the UP Act No. III of 1947 is allowed. The landlord, i.e. the O.P. is directed to carry out the repairs and make the shop water proof by getting its roof restored within one month of the date of order. In default of the opposite-party to repair the shop within the time given, the Applicant may get the shop repaired a this own costs not exceeding Rs. 100/-. The amount thus expended shall be recovered from the O.P. by the Applicant or may be adjusted towards the rent of the shop. The Applicant shall get the costs of these proceedings from the opposite party. As regards the application u/s 7C of the Act, the prayer contained therein was accepted. 3. Civil Rev. No. 1233 of 1969 arises out of the order passed on the application u/s 7-E of the Act, whereas Civil Rev. No. 1696 of 1969 arises out of the order passed by the learned Munsif on the application u/s 7-C of the Act. 4. In regard to Civil Rev. No. 1233 of 1969, learned Counsel for the Applicant has urged that a substantial portion of the order passed by the learned Munsif is not warranted by the provisions contained in the Act. Reliance has been placed by learned Counsel on Clauses (5) and (6) of Section 7-E of the Act. Clause (5) provides, inter alia, that if the landlord appears but fails to satisfy the court as to why he should not be directed to carry out the repairs, the court shall direct him to carry out the same within the time to be fixed. Clause (6) provides that if the landlord still fails to carry out the repairs in accordance with the direction Under Clause (5) the court may require the tenant to submit an estimate of the cost of repairs and after considering the estimate and taking such evidence as it may consider necessary permit the tenant to carry out the repairs at a cost not exceeding such amount as may be specified in the order, etc. It is, therefore, clear that the scheme laid down in the Act contemplates two separate stages which cannot be covered by one and the same order. It is, therefore, clear that the scheme laid down in the Act contemplates two separate stages which cannot be covered by one and the same order. The direction of the Learned Munsif to the landlord to carry out the repairs and make the shop water proof by getting its roof restored within one month is well supported and cannot be interfered with, but the further direction, in the course of the same order, providing for what was to happen in case the landlord defaulted in carrying out the order to make the shop water proof is unwarranted by the provisions contained in the Act. Therefore, Civil Rev. No. 1233 must be allowed and the order passed by the court below modified. 5. As regards Civil Rev. No. 1696 of 1969, learned Counsel for the Applicant has failed to assign any good reason justifying interference with the order passed by the learned Munsif. The finding as to the condition of the property in suit is a finding on a question of fact and no illegality or irregularity has been pointed out. Civil Rev. No. 1696 of 1969 must, therefore, fail. 6. Accordingly, Civil Rev. No. 1233 of 1969 is allowed and for the operative part of the order passed by the learned Munsif, the following order is substituted: The application u/s 7-E of the UP Act III of 1947 is allowed. The landlord, i.e., O.P., is directed to carry out the repairs and make the shop water proof by getting its roof restored. The landlord Applicant Mohammad Mustafa is allowed one month's time from today within which he must comply with the aforesaid order. Learned Counsel for the Applicant Mohammad Mustafa contended that during the pendency of this revision in this Court his client has already carried out the repairs contemplated by the order of the learned Munsif in proceedings arising out of the application u/s 7-E of the Act. It does not appear desirable to go into the correctness s or otherwise of the aforesaid assertion at this stage. It does not appear desirable to go into the correctness s or otherwise of the aforesaid assertion at this stage. In case the tenant Haji Bande Karim seeks action Under Clause (6) of Section 7-E of the Act on the assertion that the directions contained in this order do not stand complied with, it will be for the learned Munsif to go into the merits of that assertion at the relevant time before passing orders Under Clause (6) of Section 7-E of the Act. 7. In the circumstances of the case I direct that the costs of proceedings in the court below as well as in this Court shall be borne by the parties themselves. 8. Civil Rev. No. 1696 of 1969 is dismissed without any order as to costs. 9. It may be noted that this order has been passed in the presence of learned Counsels for the parties. 10. Let the record of the case be immediately sent to the court concerned.