ORDER 1. By this petition under Article 227 of the Constitution of India, petitioners’/defendants' are questioning the legality, validity and propriety of the impugned order dated 22.11.2012 (Annexure P/1) passed by III Civil Judge, Class­II, Morena in civil suit No.11A/2012 by which their application under Order XXXIX rule 7 read with section 151 of CPC (hereinafter referred to as 'the Code') has been rejected. 2. The respondent/plaintiff has instituted the suit for eviction and arrears of rent with respect to the suit shop. It is asserted that initially father of the defendants' was carrying on business in the name and style of Mungaram Ramswaroop and after his death, defendants' petitioners' No.2 and 4 are carrying on business in the suit shop. The grounds of eviction are two fold, namely; arrears of rent as the rent is not being paid since 18.11.2011 and the suit shop was bona fide required for respondent/plaintiff for his major son, Harischand Garg as there is no other alternate suitable accommodation available with him in the city of Morena. Written statement has been filed and denied the plaint allegations as well as the ground of eviction by contending that the plaintiff himself has stopped accepting the rent and the suit shop was not bona fide required. During pendency of the suit as a portion of suit shop was damaged due to water pouring from holes in the tin shed, therefore, the petitioners'/defendants' requested the plaintiff to change the tin-shed but no heed was paid. Upon such failure, the defendants' have filed an application under Order XXXIX Rule 7 read with section 151 of 'the Code' before the trial Court seeking a relief that either the plaintiff be directed to change the tin shed or petitioners'/defendants' be permitted to change the tin shed by a new tin-shed because the same is in dilapidated condition and there is consistent flow of water through holes over tin shed causing damage to the belongings of the petitioners' in the suit premises. 3. 3. The trial Court by the impugned order has rejected the application on the ground that an application seeking such nature of the relief is not maintainable in view of the provisions of section 45 of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') and the defendants'/petitioners had been directed to approach the Rent Controlling Authority under the provisions of section 37 of the Act. 4. Petitioners' submit that the trial Court has not at all appreciated the distinction between provisions of section 37(2) and section 37(3) of the Act and wrongly rejected their application on the ground of non­maintainability as contemplated under section 45 of the Act whereas the respondent has supported the impugned order. 5. Heard counsel for the parties and perused the record. 6. Sub­section (1) of section 37 of the Act requires the landlord to keep the tenanted accommodation in good and tenantable condition. Sub­section (2) thereof provides that in case the landlord neglects or fails to make such repairs within a reasonable time after notice in writing, the tenant may make those repairs and deduct the expenses of such repairs from the rent or otherwise recoverable from the landlord. Proviso thereto further provides that the amount so deducted or recoverable in any year shall not exceed 1/12th of the rent payable by the tenant for that year. However, the purpose of these provisions is not to convert the tenanted premises into anything different one or permit making any structural changes to it. On the other hand, sub­section (3) of section 37 of the Act deals with those cases where the accommodation has become unhabitable or unusable except with undue inconvenience are to be made and the landlord neglects or fails to make repairs to make the tenanted premises habitable and usable, the tenant may apply to the Rent Controlling Authority for permission to make such repairs himself. The words “not habitable” or “unusable ” used in sub­section (3) distinguishes this provision from sub­sections (1) and (2) of section 37 of the Act as it has to be understood in the context that the accommodation given on rent should be kept reasonably fit for occupation by the tenant and must include something more than tenantable repairs covered by sub­sections (1) and (2) of section 37 of the Act as it includes all kinds of tenantable repairs without which the tenanted premises would be neither habitable or usable. As such, within the scope of repairs covered under sub­section(2) of section 37 of the Act, the question that the tenanted premises having rendered unhabitable or unusable does not arise whereas sub­section (3) of the Act comes into play when the accommodation had become unhabitable or unusable having a different scope. Sub­section (3) of section 37 of the Act further provides that the tenant has not been given any right to carry out the repairs himself but he has to submit plan and estimate of the cost of repairs to the Rent Controlling Authority who is required to act in accordance with that provision. Section 45 of the Act bars the jurisdiction of the civil Court only in those cases which comes within the jurisdiction of the Rent Controlling Authority. The civil Court, therefore, has to apply its mind as regards applicability of section 37(2) or 37(3) of the Act in the facts and circumstances of a given case. If sub­section (2) of section 37 of the Act applies then the bar as contained in section 45 of the Act shall not come into play whereas if sub­section (3) of section 37 of the Act applies then, in view of the bar under section 45 of the Act, the civil Court has no jurisdiction. But, the question as to whether sub­section (2) or sub­section (3) of section 37 of the Act applies, in the opinion of this Court, facts in that behalf have to be pleaded and proved by the parties and based thereupon, the trial Court need to address upon the issue as regards applicability of sub­section (2) or sub­section (3) of section 37 of the Act. (Emphasis supplied) 7. The aforesaid legal position is well explicit from the judgment of this Court reported in 1990(1) MPWN 102 , Mohammad Younus v. Ramkalibai, S.A.No.414 of 1983 decided on 25.2.1988. (Emphasis supplied) 7. The aforesaid legal position is well explicit from the judgment of this Court reported in 1990(1) MPWN 102 , Mohammad Younus v. Ramkalibai, S.A.No.414 of 1983 decided on 25.2.1988. That being so, the trial Court need to examine the facts as to whether the repairs which the petitioners wanted, the respondent to carry out were of the type covered under sub­section (3) of section 37 of the Act to decline to exercise the jurisdiction under the provisions of section 37 of the Act. 8. This Court is of the opinion that In the present case, the trial Court has not examined the matter in the aforesaid perspective of the matter and, therefore, the order impugned is palpably illegal. Therefore, not sustainable in the eye of law. 9. Accordingly, the impugned order dated 22.11.2012 passed by the trial Court is set aside. The matter is remanded back to the trial Court to address upon the issue as regards applicability of sub­section (2) or sub­ section (3) of section 37 of the Act in the facts and circumstances of the case and thereafter decide the issue accordingly. 10. It is made clear that this Court has not expressed any opinion on merits of the case. 11. Petition stands allowed and disposed of accordingly.