Babulal Hirji Mochi v. Pathak Vasudev Harjivan — 1995 DIGILAW 397 (GUJ)

ORDER : J.N. Bhatt, J. Whether the petitioner tenant is entitled to the protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) or not, in the facts of the present case, is the sole question which has come up for consideration and adjudication in this revision under Section 29(2) of the Bombay Rent Act. 2. The opponent is the original plaintiff landlord who instituted civil suit No. 18/80 in the Court of Civil Judge (J.D.), at Kalawad, against the petitioner, who is the original defendant tenant for recovery of possession of the demised premises situated at Kumbhnathpara, in Kalawad on the ground of non-payment of rent for more than six months. The parties are hereinafter referred to as the landlord and tenant for the sake of convenience and brevity. 3. The suit premises comprise of one room which was let out to the tenant at the rent of Rs. 10 per month. The tenant was in arrears of rent for a period of 53 months. Thus, the amount due at the time of notice came to Rs. 530/-. The landlord served the tenant with a notice of demand of rent under Section 12(2) on October 17, 1979. The tenant failed to comply with the demand and did not tender or pay rent as demanded. Therefore, the landlord instituted the above suit for recovery of rent and possession. 4. The tenant appeared and resisted the suit by filing written statement Ex. 6, inter alia, contending that he had sent an amount of Rs. 100 which was not accepted by the landlord. According to the contention of the tenant, he was ready and willing to pay rent and therefore there was no case of eviction on the ground of non-payment of rent. 5. The Trial Court on appreciation of the facts and circumstances and the evidence on record, decreed the suit for possession of the demised premises on 10th April 1981. On an appeal at the instance of the unsuccessful defendant tenant, the learned District Judge, at Jamnagar, was pleased to dismiss the appeal on April 10, 1982 and confirmed the decree for possession on the ground of nonpayment of rent recorded by the Trial Court. Hence this revision by the tenant. 6. On an appeal at the instance of the unsuccessful defendant tenant, the learned District Judge, at Jamnagar, was pleased to dismiss the appeal on April 10, 1982 and confirmed the decree for possession on the ground of nonpayment of rent recorded by the Trial Court. Hence this revision by the tenant. 6. After having examined the facts and circumstances, this Court has no hesitation in holding that the finding of fact recorded by the courts below concurrently and consistently that the petitioner original defendant tenant is a defaulter and liable for eviction on the ground of non payment of rent under Section 12(3)(a) of the Bombay Rent Act is justified. Again it may be noted that in a revision under Section 29(2) of the Bombay Rent Act, though the powers of this Court are little wider than the one under Section 115 of the Code of Civil Procedure, 1908 (Code), the main anxiety of the court in such cases is to see whether the impugned decree, decision or order is according to law or not. This proposition is very well explained by the Apex Court in Bhai Chand Ratanshi v. Laxmishankar Tribhavan, Al R1981 SC 1690. It may also be mentioned that even if two views are possible, the High Court cannot substituted its view. The Hon'ble Supreme Court has clearly held in Girdharbhai v. Sayed Mohmad Mirasahab Kadri, AIR 1987 SC 1782 that the view taken by the Court in the impugned order or decree is possible, it is not permissible for the High Court to take a different view and substitute its finding. 7. In view of the aforesaid settled proposition of law circumscribing the jurisdictional sweep of this Court in a revision under Section 29(2) of the Bombay Rent Act, the finding of fact recorded by the courts below cannot be interfered with and the revision could be rejected on that ground. However, none has appeared for and on behalf of the petitions tenant. Therefore, it was thought expedient It examine the merits of the revision in the light of the facts and circumstances of the case. 8. However, none has appeared for and on behalf of the petitions tenant. Therefore, it was thought expedient It examine the merits of the revision in the light of the facts and circumstances of the case. 8. Section 12(3)(a) of the Bombay Rent Act provides a ground for eviction decree if the conditions in the said provision are satisfied The conditions of provisions of Section 12(3)(a are as follows: (1) That the rent is payable by month; (2) Amount of standard rent and permitted increases are not disputed; (3) Standard rent or permitted increases are unpaid for six months or more; (4) That the tenant has received notice under Section 12(2); (5) That the tenant has neglected to pay the standard rent and permitted increases for such period within a period of one month after receipt of the notice under Section 12(2) of the Bombay Rent Act. 9. If the aforesaid conditions are satisfied, the Court is obliged to pass a decree for possession. The tenant who is negligent and who is a defaulter and who remains indifferent to the demand of rent made in notice under Section 12(2) and does not fulfil the conditions laid down is liable for eviction. 10. There was no dispute about the fact that the tenant was in arrears of rent for a period of 53 months at the time of service of notice under Section 12(2). Notice demanding rent under Section 12(2) was received by the tenant and it was replied by him and no dispute of standard rent was raised. There is also no dispute about the fact that the arrears of rent then due and demanded by the landlord had not been paid within one month after the receipt of the notice. On the contrary, the case of the tenant was that he had sent an amount, of Rs. 100/- against the arrears of Rs. 530/-for a period of 53 months at the rate of Rs. 10/- per month and the same had not been accepted by the landlord. Thus even if the case of the tenant is accepted to be true, then also, the tenant is not entitled to seek the protection on the ground that part of arrears of rent demanded by the landlord was sent and refused by the landlord. On facts, this plea is rightly not accepted by the courts below. 11. Thus even if the case of the tenant is accepted to be true, then also, the tenant is not entitled to seek the protection on the ground that part of arrears of rent demanded by the landlord was sent and refused by the landlord. On facts, this plea is rightly not accepted by the courts below. 11. The second contention raised on behalf of the tenant in the courts below was that he and one adjoining tenant Bechar Harji had got repaired the damaged wall and had incurred expenditure to the tune of Rs. 900 It was. therefore, contended that since he had spent half of the account of Rs. 900/- i.e. Rs. 450/- towards repairs, he cannot be said to be in arrears of rent as the rent in arrears was Rs. 530 and he was entitled to deduct an amount of Rs. 450/- from the said arrears. The plea raised by the tenant was not accepted by the courts below on facts. Therefore, there is no reason to take different view. However, it may be mentioned that the tenant is entitled to deduct limited amount from the arrears of rent towards repairs if he has observed the material requirements in the light of the provisions of Section 23 of the Bombay Rent Act. It is true that it is the landlord's duty to keep the premises in good repairs. However, if the landlord fails to carry out the statutory obligation, it is open for the tenant to get the tenanted premises repaired. However, the amount of repair recoverable from the landlord 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 the premises payable to a local authority for that year. It would be expedient to examine the provisions of Section 23 which are as follows : "23. (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. It would be expedient to examine the provisions of Section 23 which are as follows : "23. (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. (2) If the landlord neglects to make any repairs, which he is bound to make under subsection (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 : Provided that where the repairs are jointly made by the tenants the amount to be deducted or recovered by each tenant shall bear the same proportion as the rent payable by him in respect of his premises bears to the total amount of the expenses incurred for such repairs; 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. (3) For the purpose of calculating the expenses of the repairs made under subsection (2), the accounts together with the vouchers maintained by the tenants shall be conclusive evidence of such expenditure and shall be binding on the landlord." 12. It can be seen from the aforesaid provisions that a duty is imposed on the landlord to keep the premises in good and tenant-able repairs. If, however, under the lease the tenant has undertaken the responsibility to keep the premises of repairs, this section will not come into operation. This is the scope and purpose of this section. In order to achieve the object of this section as per the scheme, the tenant has to give notice to the landlord to carry out the repairs within a reasonable time. Thereafter, if the landlord neglects to make the repairs or fails to carry out the repairs, the tenant is given the right to carry out the repairs and deduct the expenses from the rent payable to the landlord. Thereafter, if the landlord neglects to make the repairs or fails to carry out the repairs, the tenant is given the right to carry out the repairs and deduct the expenses from the rent payable to the landlord. However, it can be seen from the aforesaid provisions that the right of deduction of the amount has been circumscribed to one-fourth of the amount of rent payable for that year. This limit has been imposed in order to see that the tenant does not abuse his right. Even if the tenant carries out the repairs, he has to keep proper account and proper vouchers to prove the same. The main object, as could be seen, is to keep the tenanted premises in a tenantable condition so that housing for the people is not reduced and is kept in good repair and it should also ease harassment to tenant by reason of non-repairs. 13. Section 23(2) confers right on the tenant to make tenantable repairs to the demise premises at the cost of the landlord. However, to enable the tenant to make the landlord liable for the cost or repairs, following requirements ought to be satisfied ; (1) The tenant should serve notice on the landlord specifying repairs which the premises require : (2) The repairs are tenantable repairs and not improvements; (3) The landlord failed to make the repairs within reasonable time after the receipt of notice. 14. The tenant who carries out repairs without notice to the landlord or after the receipt of the notice by the landlord starts work without waiting for a reasonable time to begin the work of repairs is not entitled to recover the cost of repairs from the landlord. Truly, what is a reasonable time will be a matter of appreciation of facts in a given case depending upon the circumstances and the nature and urgency of repairs. 15. The expression "good and tenantable repairs" is not defined in the Act and has no technical meaning as such. 'Good and tenant-able repairs' is such repair as having regard to the age, character and locality of the premises, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to occupy such premises. The basic idea underlying the concept of repairs is restoration of a building to its original condition as far as possible. The basic idea underlying the concept of repairs is restoration of a building to its original condition as far as possible. This implies that the old structure is retained and is renovated from the damaged conditions to its original sound state. In absence of an agreement to the contrary by the tenant, it is a statutory duty and obligation on the party of the landlord to keep the premises in a tenantable condition. 16. Section 23 creates a right as well as remedy. On the amount of expenses, no provision of interest is made in this section. In any year a tenant can only deduct three months rent excluding therefrom one-fourth of proportionate taxes of local authority for that year as provided in the second proviso to the section. Section 23(3) provides that the tenant is entitled to recover expenses of the repairs from the landlord. However, for the purpose of calculating the expenses of repairs made under sub-section (2) of Section 23, the accounts together with vouchers maintained by the tenant shall be the conclusive evidence and such expenditure shall be binding on the landlord. Where the tenant has not maintained accounts or the accounts are not supported by vouchers, the tenant will have to prove by other evidence the expenditure incurred for repairs. 17. In the light of the facts and circumstances emerging from the record of the present case, firstly it is not proved that the tenant had spent an amount of Rs. 900/- along with other tenant. Even if it is presumed that he had spent an amount of Rs. 900/- along with other tenant and his share came to Rs. 450/- towards the expenditure of repairs, he will not be entitled to the full amount of Rs. 450/-. He will be entitled to only an amount to the extent of three months rent i.e. Rs. 30/- after deducting one-fourth amount of taxes payable. There is no dispute about the fact that monthly rent of the premises was Rs. 10/-. There is no evidence to show as to what is the amount of tax payable at the relevant time. Even otherwise, assuming that the tenant had spent for repairs, then also, he will not be entitled to deduct more than an amount of Rs. 30/- (rent for three months) from the arrears of rent. Rent was in arrears for a period of 53 months. Even otherwise, assuming that the tenant had spent for repairs, then also, he will not be entitled to deduct more than an amount of Rs. 30/- (rent for three months) from the arrears of rent. Rent was in arrears for a period of 53 months. Thus an amount of Rs. 530/- towards arrears of rent was claimed by the landlord in the notice under Section 12(2) of the Bombay Rent Act. Even if the amount of Rs. 30/- is held to be recoverable, then also, the arrears of rent would remain in the field to the extent of Rs. 500/- at the time of notice. Again, it may be mentioned there is no evidence to show that notice was given to the landlord for carrying out the repairs specifying the nature of repairs. In fact, even if the defence of the tenant that he is entitled to deduct the amount spent for repairs of wall is accepted at its face value, then also, he is not entitled to deduct more than an amount of Rs. 30/- from the arrears of rent. No doubt, factually it is found that the material conditions entitling the tenant to statutory amount for the repairs of the demised premises under Section 23 of the Bombay Rent Act are not shown to have been complied with. Therefore, factually and legally, the tenant is not entitled to seek the protection of the Bombay Rent Act as he is found to be a defaulter. Therefore, this revision is liable to be dismissed. 18. Having regard to the aforesaid facts and circumstances and considering the conjoint reading of Section 12 and Section 23 of the Bombay Rent Act, this Court has no hesitation in finding that this revision under Section 29(2) of the Bombay Rent Act is absolutely devoid of any merits and is required to be dismissed. Accordingly, this revision is dismissed with no order as to costs. Rule discharged. Interim relief shall stand vacated. Revision dismissed.