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2003 DIGILAW 528 (CAL)

D. P. S. (INDIA) PRIVATE LTD v. KALIDAS BANERJEE

2003-10-30

GIRISH CHANDRA GUPTA

body2003
GIRISH CHANDRA GUPTA, J. ( 1 ) IN a suit for ejectment the defendant tenant applied for repairs of the tenanted premises. An Engineer Commissioner was appointed by the trial Court. After visiting the locale he gave his report from which it appears that the tenanted premises is badly in need of repairs. Major portions of the repairs are needed in the roof of the tenanted premises. The learned trial Court dismissed the application of the tenant for repairs on the ground that the defendant is a tenant in respect of a portion of the building and that the plaintiff is the owner of that portion. Rest of the building belongs to the other co-sharers and the building cannot be repaired without the consent of the other co-sharers. On this ground the application for repair made by the defendant tenant was dismissed. ( 2 ) AGGRIEVED by that order the defendant tenant applied for revision. The revisional Court dismissed the application on the ground that after the amendment of the Code of Civil Procedure the revisional application against such an order was not maintainable. The defendant tenant in those circumstances has come up before this Court under Article 227 of the Constitution of India. ( 3 ) ON 18th August, 03 direction for affidavits was issued but no Affidavit-in-Opposition has been filed. Today when the matter was taken up for hearing a prayer for adjournment was made on the ground of the learned Senior Advocate which was rejected by this Court. ( 4 ) IT appears from the agreement entered into between the landlord and tenant that it was the obligation of the landlord to keep the tenanted premises wind and water tight and to keep the same in constant repairs. The relevant paragraphs in the agreement reads as follows :"to keep during the said tenancy the roofs and outside walls of the tenanted premises wind and watertight and also repair major damages to the tenanted premises (electrical, water and sanitary fittings and fixtures being excepted) as shall be occasioned by structural defects or any other reason (negligency and/or loss of care on the part of the tenant being excepted) so as to keep the tenanted premises in tenantable repairs". ( 5 ) THE obligation of the landlord to keep the premises in constant repairs is thus contractual. ( 5 ) THE obligation of the landlord to keep the premises in constant repairs is thus contractual. Even statutorily a landlord is obliged to keep the premises in a tenantable condition. The spacious plea advanced by the learned trial Court for refusing the prayer for repairs that the building as a whole belongs to very many persons and the plaintiff is only a co-sharer owning the suit premises and therefore cannot undertake to repairs, in my view is no reason why the tenant should be left to continue to suffer the dilapidated building until he is evicted in the due process of law. The ground assigned by the learned trial Court is not acceptable at all and this Court is convinced that the tenant has seriously been prejudiced by such an order. ( 6 ) THE repairs are required at once as would appear from the reports of the Commissioner himself. However the question still remains to be considered as to who shall bear the cost. It appears from the tenancy agreement entered into in the year 1976 that the rent was fixed at Rs. 1500/- per month In spite of lapse of 27 years rent has not been admittedly increased. Therefore, saddling the landlord with the cost of repairs would be anything but equitable. Ends of justice will be sub-served if the defendant tenant is granted liberty to repair the tenanted premises at his own cost. It is made clear that such repairs nor the cost incurred shall create any equity in favour of the tenant. Mr. S. Basu, learned Advocate appearing for the plaintiff landlord submitted that the suit for eviction is filed inter alia on the ground of Clauses (m){o) (p) of Section 108 of the Transfer of Property Act. Therefore, adequate protection should be given so that the evidence of the addition and alteration made by the tenant are not effaced. Considering the submissions of Mr. Bose liberty is granted to the plaintiff to take photographs before the work of repairs is undertaken by the defendant. He should not take up the repair without giving at least 72. hours notice to the plaintiff. The repair shall be done in terms of the report of the Commissioner. ( 7 ) THE petition is accordingly disposed of and the orders under challenge are set aside. He should not take up the repair without giving at least 72. hours notice to the plaintiff. The repair shall be done in terms of the report of the Commissioner. ( 7 ) THE petition is accordingly disposed of and the orders under challenge are set aside. Let urgent xerox certified copy of this order, if applied for be given to the learned Advocates for the parties.