1. This is a defendants' second appeal. Plaintiff filed a suit for arrears of rent and ejectment on the ground that the defendant was a tenant at Rs. 8/8/- per month, that the defendant had not paid arrears of rent for a period from the 1st of April 1953. A valid notice for vacating the house and demanding the arrears of rent was served on the defendant. The defendant contested the suit on the ground that during the rainy season of 1953 the wall and the filed covering of the house had fallen. The plaintiff did not repair the same in spite of notice and, therefore, the defendant spent Rs. 64/8/- on repairs of the house. He was therefore, not in arrears for which notice had been given. This amount of Rs. 64/8/- was sufficient to cover the rent which had fallen due against the defendant upto the date of notice.

2. The trial Court held that the defendant had not made any wilful default and, therefore, dismissed the plaintiff's suit for ejectment but decreed arrears of rent for Rs. 24/12/-. On appeal the lower appellate Court has decreed the suit on a finding that the defendant was not entitled to deduct Rs. 64/8/- out of the rent due, but he was entitled only to deduct one month's rent that is Rs. 8/8/-. He has, therefore, decreed the suit for ejectment and has decreed arrears only for Rs. 80/12/-. Learned counsel for the defendant appellant has contended that the lower appellate Court was wrong in taking the view that the repairs which the house needed were the normal annual repairs. In fact the filed roof and a wall of the house had fallen down. The house had, therefore, become open to rain and wind. Under Section 7-E of the U.P (Temporary) Control of Rent and Eviction Act it was the duty of the landlord to keep the house wind-proof and water-proof and he, therefore, contended that for repairs of this nature the tenant had a right under Section 108-B(f) of the Transfer of Property Act to make the repairs after notice to the landlord and to deduct the same from the rent.

3. In reply learned counsel for the respondent has contended that for repairs of this kind the U.P (Temporary) Control of Rent and Eviction Act has made its own provisions and the Transfer of Property Act has no application to the facts of the case.

4. It is, therefore, necessary to note the provision, of Section 7-E of the U.P (Temporary) Control of Rent and Eviction Act. Sub-sec. (1) of this section provides as follows:

“Every landlord shall be bound to keep the accommodation in the occupation of a tenant wind-proof and water-proof and to carry out other repairs which he is bound to make by law, contract or custom.”

In this sub-section it will be noted that the legislature has divided the repairs into two classes. For keeping the house wind-proof and water-proof responsibility has been absolutely placed upon the landlord. He is, therefore, made bound to make necessary repairs in order to keep the house wind-proof and water-proof. With regard to other repairs it has been provided that the landlord will make these other repairs only if he is bound to make them either by law, contract or custom.

5. The provisions of Sec. 108-B(f) may be read in this connection, which run as follows:

“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 deduct the expenses of such repairs with interest from the rent or otherwise recover it from the lessor.”

It will be seen that this provision entitles the tenant to make the repairs himself only in cases where the lessor is bound to make those repairs. If the lessor is not bound to make the repairs the provision will not apply at a all and the tenant will not be entitled to give notice for the repairs and to make such repairs if the lessor tails, to make them. The contention of the learned counsel for the appellant is that the provisions of sub-sec. (1) of Sec. 7-E have placed a responsibility upon the landlord to keep the house wind-proof and water-proof. It has, therefore, become a bounden duty of the lessor to make necessary repairs of this nature.

6. Sub-section (3) of Section 7-E of the U.P Control of Rent and Eviction Act authorises the tenant to give notice to the landlord to carry out annual white, washing, re-colouring and periodical repairs, and if the landlord tails, to do those repairs within a month from the date of notice the tenant may carry out those repairs and may deduct from the rent the cost of those repairs but not exceeding one month's rent. This sub-section is not applicable to this case for two reasons: In the first place it relates only to the second class repairs which is not the case pleaded by any of the parties here and secondly, it will apply only when the tenant proves a contract or custom. The lower appellate court was, therefore, wrong in applying the provisions of this sub-section and deducting one month's rent from the amount due to the landlord. However, there is no cross-objection by the landlord and therefore, the amount of arrears of rent decreed by the lower appellate Court cannot be altered in this appeal.

7. Sub-sections (4), (5) and (6) of Section 7-E of the U.P (Temporary) Control of Rent and Eviction Act read as follows:

“(4) If the landlord neglects to carry out any repairs, other than annual repairs, which he is bound to make to the accommodation by law or contract, the tenant may apply to the Munsif having jurisdiction for an order to the landlord for carrying out the same. The Munsif shall cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed, against the application.”

“(5) if the landlord does not appear in obedience to the notice or if he appears but fails to satisfy the Munsif as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Munsif shall direct him to carry out the same within a time to be fixed.”

“(6) If the landlord still fails to carry out the repairs in accordance with the direction under sub-sec. (5), the Munsif may require the tenant to submit an estimate of the cost of such repairs and after considering the estimates and taking such other evidence, as he may consider necessary, permit the tenant to carry them out at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord. It shall, thereafter be lawful for the tenant to make such repairs and to deduct the cost thereof from the rent or to recover it otherwise from the landlord as if it were a debt due to him by the landlord.”

From the above provisions of sub-sees. (4) to (6) it is apparent that the legislature wanted to lay down a procedure of its own. If the intention of the legislature was to make those repairs other than the annual repairs the duty of the landlord and to leave the parties to their rights under the Transfer of Property Act it was wholly unnecessary to make the elaborate provisions in the three sub-sections quoted above. The legislature created a right in favour of a tenant by making, some repairs the duty of the landlord and also provided a remedy for that right in the section itself. It did not stop after creating a right and leaving the parties to their rights under the Transfer of Property Act, but provided its own remedy which is much more restricted than the remedy given to the tenant under the Transfer of Property Act under the Transfer of Property Act if the landlord is bound to make repairs it is the right of the tenant after giving the notice to make such repairs and to deduct the whole amount from the rent; but under these sub-sections the legislature has restricted this right of a tenant. If the tenant wants the landlord to make the repairs, he is to make an application before the Munsif so that the landlord may be ordered to make the necessary repairs. This means trial the opinion of the tenant that the house requires certain kinds of repairs which the landlord is bound to make under the Act is not final. He is to put it to the scrutiny of the Court and if the Court is satisfied that the house needs repairs which the landlord is bound to make under this Act the Munsif may order the landlord to make the repairs, and if the landlord still does not do so the Munsif has to scrutinise the estimate by the tenant for making the necessary repairs and has to fix the maximum amount which could be spent in making those repairs. It is only this maximum amount which the Munsif fixes for making the repairs which if spent can be recovered from the rent or otherwise from the landlord. Thus, we find that the first sub-section of Sec. 7-E creates a right in favour of the tenant to have certain kinds of repairs done at the expense of the landlord which did not exist under the; Transfer of Property Act and under sub-sees. (4) to (6) it provides a restricted remedy to the tenant to have the repairs done at the cost of the landlord. Where a special act creates a right as well as provides a remedy it must be deemed to be the intention of the legislature that the remedy provided by the Act itself should be the only remedy available to the tenant. I, therefore, agree with the contention of the learned counsel for the respondent that the provisions of Transfer of Property Act cannot be relied upon by the tenant in order to recover the cost of repairs, which the tenant has done without following the procedure laid down by sub-sees. (4) to (6) of Section 7-E of the U.P (Temporary) Control of Rent and Eviction Act.

8. The contention of the learned counsel for the appellant was that the remedy provided by the U.P Act is in the alternative and it does not take away that provided in the Transfer of Property Act. That argument does-not appeal to me because the provisions of the U.P Act are much more restricted and troublesome to the tenant if the general right given under the Transfer of Property Act were held to be open to the tenant these provisions would become useless and no tenant would like to go through that procedure. Under the Transfer of Property Act, he is merely to give a notice and if the landlord fails to make the repairs he can spend any amount necessary for making the repairs and recover the whole of to from the landlord, which is not permitted by the U.P Act.

9. I am, therefore, satisfied that the tenant is not entitled to deduct the expenses which he has incurred in making the repairs of the house and the plaintiff was entitled to a decree for ejectment and arrears of rent as claimed.

10. But no cross-objection having been filed the amount of arrears of rent cannot be altered with the result that the decree passed by the Court below must be confirmed. I, therefore, dismiss this appeal with costs.

11. Learned counsel for the appellant asks for leave to file a special appeal. Leave prayed for is granted.

KF/R.G.D

12. Appeal dismissed.