Doraipandi Konar v. P. Sundara Pathar.

The landlord is the revision petitioner herein and he is aggrieved that the Subordinate Judge of Madurai had by his judgment in A. St. 221 of 1967 reversed the judgement of the District Munsif of Melur in O.S 222 of 1966 and decreed the suit for a sum of Rs. 835-30 proved to have been spent by the respondent tenant.

The respondent is running a tea shop in the eastern and northern portion of a building at a monthly rent of Rs. 40. The flooring of the respondent's portion was made of mud and the walls also similarly were made of mud, and the premises have a common thatched roof with the other two portions of the building. As the petitioner landlord refused to renovate the roof which was leaking in the rains and to repair the mud floor and to put walls is the place of the mud walls which had fallen in spite of his requests and a notice, the respondent renewed the entire thatched roof which was common to his premises, as well as the other portions of the building, demolished the old mud walls and put up brick walls instead on three sides and laid a new cement floor instead of the old mud floor. The petitioner unsuccessfully obstructed the respondent from carrying out the said operations while they were going on and later refused to meet the charges amounting to Rs. 835-30 proved to have been spent by the respondent.

The learned District Munsif is of opinion that the respendent was entitled if at all, only to replace the eld mud walls with new walls and to repair the mud floor and had no right to replace the mud walls with a brick wall and the mud floor with a cement floor but upheld the respondent's aet in renovating the entire thatched roof and he held that the respondent would be entitled to recover, if at all only a sum of Rs. 582-87. Bat he found, that as the respondent had not applied to the Rent Controller for permission to replace the roof, walls and mud under S. 22 of the Madras Buildings (Lease and Rent Control) Act, 1960. he is not entitled to recover any amount and accordingly dismissed the entire suit. He is of opinion that the provisions of S-108 (f) of the Transfer of Property Act which relate to the rights of a lessee in case of repairs not done by the lessor within a reasonable time of notice cannot be invoked, after S. 22 had been enacted in the Madras Buildings (“Lease and Rent Control) Act, 18 of 1960.

The learned Subordinate Judge, Madurai, however, is of opinion that Sec. 22 of the Act is not a complete cede by itself, defining the rights and liabilities of the lessors and lessees, that S. 108 of the Transfer of Property Aet continues to apply to cases like the present one, that what the respondent had effected were only repairs and not a reconstruction of the building and that, as the petitioner landlord has refused to carry out the repairs, the respondent was entitled to recover the entire amount claimed by him. Hence the revision. It may be observed that he, however, repelled the contention that S. 70 of the Indian Contract Act was applicable to this case.

The first question which arises for consideration is whether the respondent is entitled to base his claim upon the provisions of S. 108(f) of the Transfer of Property Act, ignoring the provisions of S, 22 of the Madras Bnildings (Lease and Rent Control Act. In order to appreciate the contention of the learned counsel, ft is desirable to set out the relevant provisions of these two Acts.

S. 2(7) of the Rent Control Act defines repairs as “the restoration of a building to a sound or good state after decay or injury, but does not include additions, improvements, or alterations except in so far as they are necessary to carry out such restoration.”

The provisions of S. 14(1) in so far as they deal with repairs read thus:

“ Notwithstanding anything contained in this Act, bat subject to the provisions of Ss. 12 and 13, on an application made by a landlord, the controller shall if he is satisfied—

(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.”

S. 22 in so far as it relates to ordinary buildings reads thus:

“ If a landlord falls to make necessary repairs to the building within the reasonable time after notice is given by the tenant in the case of any other building, the controller may direct on an application by the tenant that such repairs may be made by the tenant and that the cost thereof may be deducted by the tenant from the rent payable for the building; Provided that the cost of repairs, and the deduction thereof which the Controller may authorise shall not exceed in any one year one-twelfth of the rent payable la respect of the building for that year.”

S. 108 of the Transfer of Property Act states thus:

“ In the absence of a contract or local usage to the contrary, the lessor and lessee of immoveable property, as against the one another, respectively, possess the rights and are subjeet to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:

(B) Rights and liabilities of the lessee (f) if the lessor neglects to make within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduet the expenses of such repairs with interest from the rent, or otherwise recover it from the lessor; (m) the lessee is bound to keep and on the termination of the lease, to restore, the property la as good condition as it was in at the time when he was put in possession, subject only to the changes, caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter opon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and when such defect has been caused by any aet or default on the part of the lessee, his servants or agents; he is bound to make it good within three months after such notice has been given or left.”

The provisions of S. 22 of Act XVIII of 1960 clearly imply that there is a duty on the part of the landlord to make necessary repairs to the building within a reasonable time after notice by the tenant, sad S. 2 (7) of Act XVIII of 1960 while settiag eat the meaning of the term ‘ repairs ‘ clearly excludes from the definltion additions, improvements of alterations except in so far as they are necessary to carry out such restoration. I may add that the provisions of S. 108 (f) of the Transfer of Property Act refer to only cases of repairs to be done by a landlord and by implication, exclude additions, improvements or alterations from his obligation in the same manner as had been done by Act XVIII of 1960.

There is however one significant difference betweea these two facts and it is this. While the landlord under Aet XVIII of 1960 has aa obligatioa to make necessary repairs to the property, S. 108 of the Transfer of Property Act imposes an obligation only on the tenant to carry out certain repairs and casts an obligatioa on the landlord to carry out only such repairs which he is bound to make to the pro perty. The words “ any repairs which he is bound to make to the property” found la S. 108 (f) of the Transfer of Property Act have been interpreted by the courts to mean only those repairs which the landlord is bound by an express contract to make.

S. 108 (m) of the Transfer of Property Act contemplates two implied covenants on the part of the tenant: (1) to keep the property in repair i.e, to maintain the property ia the same condition at all times during the whole term of the lease and (2) to restore in repair i.e, to restore the premises in as good a condition as he found the property. This obligation does not cover cases of damage oaused by friction of the air, exposure and ordinary use and also cases of damage due to an extraordinary cause, such as storm, flood or accidental fire. Reading Ss. 108 (f) and (m) together the position is clear that the lesser is under no liability to repair in the absence of an express covenant making him liable.

It thus appears that, ia cases governed by S. 108 of the Transfer of Property Act, neither the tenant nor the landlord is bound to carry out repairs caused by reasonable wear and tear or even by irresistible force and that the tenant is liable to rectify only those defects which have been caused by any aet or default oa his part or on the part of his servants or agents. Under the Aet 18 of 1960 it appears however hat repairs which are necessitated by reasonable wear and tear or Irresistible force have to be carried out by the landlord.

The second difference lies ia this. While under the Transfer of Property Act, ia the case of repairs which the landlord was bound to make under express covenant, the lessee may make the same fiimself after notice to the landlord and deduct all the expenses he had incurred in respect of such repairs with interest from the rent or otherwise recover it from the lessor under Act 18 of 1960, the tenant cannot make the repairs by himself and cannot deduct all the expenses of such repairs with interest from the rent, or otherwise recover it from the lesser. Ia such cases, he is bound to apply to the Rent Controller for directions aad when the landlord refuses to stake sueh repairs after request and can make the repairs only oa permission by the Rent Controller and the cost of the repairs which can be deducted by the tenant from the rent cannot exceed one month's rent.

On a comparison of the provisions of the Transfer of Property Act and Act 18 of 1960, I have no doubt in my mind that the’ Madras Legislature had intended the Madras Buildings (Lease and Rent Control) Act, 18 of 1960 to be a complete Code on the rights and liabilities of the landlord and tenant in respect of repairs to the building and that it is not permissible for a landlord or a tenant in cases governed by Act 18 of 1960 to fall back upon the provisions of S. 108 of the Transfer of Property Act or the contract of tenancy for determining their rights and liabilities in respect of repairs to the bailding. The provisions of Act 18 of 1960 appear to be carefully designed and worded so as to cover all the important aspects of the problems relating to repairs te the building; and it is difficult to say that the Act 18 of 1960 had left out any aspect relating te repairs untoucs hed, leaving the parties te have their rights settled under the Transfer of Property Act or the Contract of Tenancy in respect of ‘repairs’. It names the landlord as the person who hae to carry out the repairs aad comprehensively sets out the nature of the repairs he is bound to carry out to the bailding, the circumstances under which the tenant can get the repairs dose and the extent of compensation which he will entitled to if he carries them oat with his own be funds. It also sets out the limit of the landlord's obligation to effect repairs and excludes additions, improvements, and alterations from that category,

The learned Subordinate Judge has relied on the decision of Mack, J. in Ramakrishna Mudaliar v. Munafi Sahib 1955 1 M.L.J 62., short notes; and I have seen the original order itself. That was a case under the Madras Buildings (Lease and Rent Control) Act 25 of 1949 and and the decision is to the effect that S. 11 (2) of that Act appears to have been enacted in order to give some protection to tenants in occupation of bosses without the safeguard of a lease agreement with a speciic covenant to repair to obtain relief from the landlords who negligently refuse to do any repairs and some times use this as a weapon for the purpose of vacating tenants by making them so uncomfortable that they vacate the premises and that a tenant who has a lease agreement with a specific covenant to repair is not fettered or restricted by S. 11 (2) of Act 25 of 1949 and can enforce his covenant to repair under the ordinary law through ordinary courts. Mack J has pointed out that in Mohamed Unny v. Unniri I.L.R 1950 Mad 152,, a Bench of this court had held that the jurisdiction of a Civil court to entertain a suit by a landlord for eviction of a tenant and to pass a deeree therein is not expressly or impliedly taken away by the provisions of Act 23 of 1949.

If Mack J had intended to lay down as an absolute rule that the terms of a tenancy agreement will override the specific provisions of this Act In all cases even on matters specifically dealt with by them, I must say that I respectfully disagree in any case. I am clear that the deeision cannot apply to Act 18 of 1960.

I am willing to concede that, where the Rent Control Act has net made any provisions in respect of certain rights and liabilities of the tenant and the landlord in certain matters, and had left them open and untouched, it weald be open to them to fall baek upon their express covenants for enforcement of such rights and liabilities, or on the provisions of the Transfer of Property Act for that purpose, In ease there are no such agreements of tenancy; but I am clear that the express covenants contained in the agreements of tenancy cannot prevail in respect of rights and liabilities for which specific provision has been made in the Act and which have been clearly defined there. In rack cases it is plain that the Legislature had clearly intended that the provisions of the Act in respeet of the said-rights and liabilities shall bind the tenant and the landlord and shall prevail. Admittedly there is no general saving clause In the Rent Control Act of 1960 to the effect that the provisions of the Act are subject to the contracts of tenancy, on the other hand, the legislature has, wherever it thought fit that the rights and obligations found in the tenancy agreement should be preserved, said so in plain terms and preserved such rights and obligations by enacting a special seetion or sub clause to that effect. For instance, while dealing with eviction, Sec. 10 (3) (d) specifically provides that where a tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord under S. 10 (3) shall not be entitled to apply under this sub-section before the expiry of such period. It is however found that a landlord is given the right to seek for eviction on grounds like wilful default in the payment of rent, etc. as contemplated by S. 10(2) in such cases. The Intention of the legislature is thus clear and it cannot therefore be now seriously urged that the Act 18 of 1960 applies only to cases where there are no contracts of tenancy and that the rights and obligations secured by the contracts will override the provisions of the Act and can be enforced in spite of them.

In the second place, it appears to me clear that it would be ineqnitable to permit a tenant or a landlord to take advantage of some of the provisions of the Act which are more favourable to them than the express terms of the contract of tenaney and to look to the terms of the tenancy regarding other aspects in respect of which the provisions of the Act are less favourable to them. I do not think that courts of justice should permit such injustice and inequity.

Mack J. has referred to the fact that this court has in Md. Unny v. Unniri I.L.R, 1950 Mad. 152., held that the jurisdiction of a civil court to entertain a suit by a landlord for eviction and to pass a deeree has not been taken away by the provisions of the Rent Control Act. But then, it is obvious that such a right to have recourse for obtaining a deeree was net inconsistent with the provisions of that Act. As pointed out in that judgment itself, the jurisdiction to pass a decree of a civil court was not expressly or impliedly taken away by the provisions of that Act. This decision Md. Unny v. Unniri cannot therfore lend any serious support to the proposition advanced by Mack J.

I also find that in Hewitt v. Rowlands an English court has held as follows—

“An obligation on the part of the landlord to do any repairs, which was a term of the contractual tenancy, will be imported into the terms of the statutory tenancy. The fact that it was inconvenient or unprofitable on the landlord to fulfil his obligation is immaterial. Again if there is covenant in the lease that the lessee shall keep the premises in good repair this covenant would be imported into the statutory tenancy, since it is not inconsistent with the Act, which by implication preserves the liability of the tenant, if the lease in fact imposes this liability on the lessee”.

On a reference to previsions of the Increase of Rent and Mortgage interest (Restrictions) Act 1920 (1920 statistics) I am satisfied that this decision does not lend any support to the view taken by Mack J. Sec. 2 (5) of the Increase of Rent and Mortgage interest (Restrictions) Act 1920 reads thus:

“For the purposes of this section, the expression ‘repairs’ means any repairs required for the purpose of keeping premises in good and tenantable repair, and any premises in such a state shall be deemed to be in a reasonable state of repair, and the landlord shall be deemed to be responsible for any repairs for which the tenant is under no express liability.”

This means that the tenant will be liable to effect only the repairs which he had undertaken to do under the express terms of the tenancy agreement and that the landlord shall be responsible for ether repairs not provided for in the agreement. The observation of the court that the obligations undertaken by the tenant or the landlord to effeet repairs by virtue of the contract will be imported into the terms of the statutory tenancy is consistent with, and, indeed, is in pursuance of the provisions of the Act themselves, and the Act specifically provides that the landlord shall be responsible for the repairs, when the tenant has not undertaken to do. There is no warrant in this judgment for the proposition that the terms of the tenancy will override the provisions of any rent control legislation, even though the latter has specifically provit ded for matters covered by the terms of the tenancy.

I am inclined to follow the decision of Subba Rao J (as he then was) in Ramasubbayya v. Dt. Munsif of Kurnool, wherein be has laid down that the two statutory conditions to enable a tenant to make repairs to a building under S. 11 (2) of the Act 25 of 1949 are (1) failure by the landlord to make the necessary repairs to the building after notice by the tenant and (2) permission by the House Rent Controller to the tenant to make repairs after the landlord had committed default. I do net think that this decision was intended to cover a case where the lease itself contained a covenant to repair.

It is not disputed that the tenancy in question between the parties in the present instance falls within the ambit of the Madras Buildings (Lease and Rent Control) Act 1960. As I have already observed this Act clearly sets out the rights and liabilities of the tenant and the landlord in respect of repairs; and I am therefore of opinion that the rights and duties of the parties relating to repairs must bo ascertained only by reference to S. 22 read with S. 2 (7) of this Act and that it is not open to the parties to fall back upon the terms of the tenancy agreement or upon the provisions of the Transfer of Property Act for that purpose.

It is urged by the respondent tenant that he had carried out only repairs and not improve-ments and that he had not reconstructed the entire house; and his contention had been accepted by the learned Subordinate Judge, but I find it difficult to uphold the same. I have already set out the defintioa of repairs as found under S. 2 (7) of the Act 18 of 1960 and the emphasis in the definition is on the word “restoration”, and the section clearly points out that repairs do not include additions, improvements or alterations except in so far as they are necessary to carry out such restoration. The term “improvements” has not been defined in the Act; and the meaning and import of the term must be gathered from the dictionaries and decisions.

The decision of this court in Md. Mohideen Rowther v. Md Mohideen Rowthet A.I.R 1960 Mad. 24.contains a wealth of Information on the distinction between ‘repairs’ and ‘improvements’ as called out from various dictionaries and judgments. Webster's New International Dictionary of the English Language defines repairs as “an act of repairing; restoration, or state of being restored, to a sound or good state after decay, waste, injury, etc”. In Stroud's Judicial Dictionary the words ‘to repair’ are shown as meaning ‘to make good defects, including renewal where necessary i. e. patching where patching is reasonably practicable and, where it is not, you must put in a new piece. But “repair” does not connote a total reconstruct tion.”

The term ‘improvement’ is defined in Webster's New International Dictionary as ‘a valuable addition or betterment, as a building, clearing, drain, fence etc; en land”. In Ballantine Law Dictionary, ‘improvements’ is described ‘a word that includes everything that enhances the value of premises permanently for general uses, erection of a building, making substantial changes or additions in existing buildings, the laying of necessary side-walls and the digging of wells, are common illustrations; and it is further observed that it would be in violation of the proper construction of the term ‘repair’ to hold that it included an original improvements, or work of a different character from that previously done.

In Ram Ashray v. Hiralal it is stated that where a kucha a building is demolished and a new pucca building is constructed, the new construction shall be regarded as an improvestent.

After a survey of a large number of author rities Ramaswami, J. has laid down in hid. Mohideen Rowther v. Add. Mohiden Rowther cited above that all repairs are improvements though all improvements are not repairs.

In Hansraj Tirtharam v. Administrator Municipality Sammu the distinction is brought out thus:

“The expression ‘repair’ signifies restoration to the original condition. Anything which substantially improves or materially alters a thing from its original condition cannot be said to be merely a repair of that thing; it will be bringing into existence an improved thing; an altered thing; a new thing for all intents and purpose. But it cannot be forgotten that ‘repair’ involves an element of renewal, yet renewal of the whole or substantially the whole or not a lesser part of the whole cannot be said to be “repair”.

In Lurcoott v. Wakely and Wheeler Cozens-Hardy M.R had observed that “in many cases repair necessarily involves, not repair strictly so called, but renewal. If an earthenware pipe breaks, you can only repair it by renewing it, or again, if window becomes rotten and decayed, you cannot repair them except by renewing”.

It is thus seen that, in defining the word ‘repairs’ in S, 2 (7) of Act 18 of 1960, the Madras Legislature has substantially adopted the meaning attributed to it by the dictionaries and decisions referred to above. The basic idea underlying the concept of repairs is restoration on a building to its original condition. This implies that the old structure is retained and is renovated from the damaged condition to its original sound state. Repair always involves an element of renewal, but renewal of the whole and substantially the whole cannot be termed repair proper. Where the building is completely demolished and a new structure put instead, it would normally be reconstruction, not repairs proper, in exceptional cases however as those enumerated by Cozems Hardy, MR in Lurcott v. Wekely and Wheller, however, repair may imply a complete renewal and substitution. In addition material alteration or anything which substantially improves a thing in value from the original condition except in so far as it is necessary to carry out such restoration cannot be said to be merely repair of that thing, it will be bringing into existence an altered thing, an improved thing, a new thing for all intents and purposes.

Applying these princples to the present instance, I am satisfied that what the respondent had done to the building would amount to a reconstruction and not mere repair as contemplated by Act 18 of 1960. The original building in question consisted of only the roof, walls and the floor and as a result of the respondent's action the entire roof had been replaced, all the walls had been put up afresh and the flooring had been completely done up anew.

The whole building had therefore been substantially renovated and it would therefore be idle to contend that only a repair of the building had been done. Even if the work done is takan piece by piece, the renewal of the thatch alone may amount to repair; and it would be imposble to say that the conversion of the mud walls into brickwalls and the mad floor into cement floor would be mere repair. It would clearly constitute a material alteration and an improvement la that the nature and composition of the flooring and the walls had undergone a complete change and the value had considerably enhanced.

It is also clear, that even if the respondent's acts can be assumed for the sake of argument only to be repairs, as the respondent had resorted to them without obtaining the previous consent of the Rent Controller on an application, he would net be entitled to any compensation, even to the extent of a month's rent, for the trouble he had undergone in renovating the building.

I would also like to add that, even if the respondent is entitled to invoke S. 108 of the Transfer of Property Act, there is no basis whatsoever for his present claim. In the first place, as I have already observed, a landlord is under no obligation in law to effect any repairs to the building except those which he had successfully undertaken under the tenancy agreement; and admittedly it is not the respondent's ease that there is any term in the tenancy agreement casting an obligation on the petitioner to effect any repairs to the building. The respondent cannot therefore call upon the petitioner to pay compensation for the repairs he claims to have effected. In the second place, S. 108 of the Transfer of Property Act does not confer any right en a tenant to effect a reconstruction of or improvements to the building and claim compensation. I am clear in that he had effected a reconstruction of the house.

I am also clear that the provisions of S, 70 of the Indian Contract Act cannot be legitimately invoked in this ease. In the first place, it is difficult to say that the act of renovation done by the respondent was lawfully dene for the petitioner. As observed in Chedilal v. Bhagawandas, by the use of the word “lawfully” in S. 70 of the Indian Contract Act, the legislature had in contemplation cases in which a person held such a relation to another as either directly to create or by implication reasonably to justify the inference that, by some act done for another person, the person doing the act was entitled to look for compensation to the person for whom it was dene. In Penchkore v. Haridas, it was held that it must be considered in each individual case whether the person who made the payment had any lawful interest in making it, if net, the payment cannot be said to have been made lawfully. In the second place, the section is not attracted in cases of services rendered by the claimant at the request of or against the will of the other party sought to be charged with. In order to merit compensation, the services rendered must have been acquiesced in by the other party The provisions of this section cannot justify the officious obligations in respect of services which the person sought to be charged with did not wish to have rendered. Indeed, evidence in this case is that the petitioner objected to the renovation and went to the extent of physically obstructing when the respondent started the construction and that the respondent carried out the work with the help of the police.

In the result, the revision petition is allowed; but, under the circumstances, without costs. The judgment and decree of the District Munsif of Melur in O.S No. 222 of 1966 are confirmed, the decree and judgment of the Subordinate Judge are set aside and the suit is dismissed with costs.

v.c.s