J.G. SHAH, J.
( 1 ) ORIGINAL plaintiff, who is the tenant, has preferred this revision application to challenge the order of the Joint District Judge, aurangabad, allowing the Miscellaneous Civil Appeal No. 112/89, filed by the Original Defendant - the landlord and setting aside the order passed by the trial Court, below Ex. 5, in Regular Civil Suit No. 85/89 and dismissing the application, Ex. 5, of the petitioner, under which he claimed an injunction against the present respondent-the tenant.
( 2 ) BRIEFLY stated, undisputed facts, are as under. The original defendant is the landlord of the premises bearing Municipal no. 5-22-1967 of Tilak Peth, Aurangabad, and the premises consists of two storeys. The ground floor is in possession of the original plaintiff being the tenant in the said premises and the said premises consists of two rooms and in the said premises the plaintiff carries on business of running a liquor shop. The defendant, the landlord resides on the upper storey. The plaintiff' claimed in the suit and the application, Ex. 5 that the defendant the landlord wants to evict him from the rented out premises to him and, therefore, has started damaging the floor of the upper storey, which falls the roof or the ceiling of the rented out premises the plaintiff claimed that the defendant started damaging the roof of the premises rented out to him by removing the tiles and due to that water has started percolating through the ceiling and due to this the ceiling and the roof of the shop has been damaged and the other articles in the shop premises including stock in trade is also damaged. The plaintiff further chimed that he repeatedly requested the defendant landlord to repair the roof, but he did not pay any heed and, therefore, ultimately he issued notice to the defendant that he should effect the repairs, but the defendant refused to accept the notice. The plaintiff thereafter gave a complaint to the Municipal Corporation, Aurangabad on 4-10-1988 and the Corporation issued notice bearing No. 331/89, dated 16-1-1989 under Section 264 (2) of the Bombay Municipal Corporation Act, calling upon the defendant to repair the damaged flooring of the upper storey, but the said notice was also not complied with. The plaintiff further claimed that he also requested the defendant to allow him to carry on he repairs at his own costs that he should allow him to enter on the first loot, which is in the occupation of the defendant for effecting the said repairs, but the said request was also not acceded to.
( 3 ) THE plaintiff further claimed that under Section 20 of the hyderabad Houses (Rent, Eviction and Lease) Control Act, (herein-after referred to as 'the Hyderebad Rent Control Act') he is entitled to carry out the reasonable repairs to keep the premises in good condition, he also claimed that in view of the notice issued by the Municipal Corporation, he is also entitled to comply the said notice and effect necessary repairs. The plaintiff, therefore, sought mandatory injunction against the defendant so as to direct him to comply with the notice issued by the municipal Corporation under Section 264 (2) or to allow the plaintiff to carry out the necessary repairs and for that purpose not to obstruct the plaintiff from effecting the repairs. The plaintiff also filed an application, ex. 5, to claim temporary injunction during the pendency of the suit and he plaintiff sought the identical reliefs in the suit.
( 4 ) THE defendant-landlord filed his say, Ex. 4 and resisted the application, Ex. 5. He mainly contended that the entire premises is very old and is built in mud and lime, that the north-south and eastern walls of the premises have collapsed and the entire premises is beyond repairs. However, for want of accommodation the plaintiff is forced to stay in such dilapidated premises. He also claimed that the roof of the first floor is of the zink sheets with wooden poles and rafters and the same is also badly damaged and the water leaks from the zink roof and it ultimately percolates through the walls in the shop of the plaintiff. He denied that he had removed any flooring of the suit shop and on the other hand, contended that the plaintiff has fixed the ceiling of the shop negligently and due to the vibrations of the ceiling work, the tiles of the first floor have been disclocated and the rafters which are very old also are damaged. He further claimed that the plaintiff had obtained the notice from the Municipal Corporation joining hands with the Officer of of the Corporation and the contents of the same are not correct. He, however, further contended that the premises are beyond repairs and it need to be demolished completely for reconstruction. He further contended that mandatory injunction cannot be granted in favour of the plaintiff, so as to authorise him to enter the residential portion of the defendant. He claimed that the balance of convenience is not in favour of the plaintiff. He further contended that in view of the provisions of the Hyderabad Rent Control Act, the Civil Court has no jurisdiction to grant temporary injunction as prayed for and, therefore, prayed for dismissal of the application.
( 5 ) ON consideration of the record placed before the trial Court, t he learned Civil Judge granted relief allowing the plaintiff to carry out necessary repairs of the roof of the ground floor at his costs and restrained the defendant from causing obstruction while carrying out such repairs. The Civil Judge also held that the Civil Court has jurisdiction to entertain the suit and grant the relief prayed for. Being aggrieved by the said order of the Civil Judge, the defendant-landlord filed Miscellaneous Civil appeal in the District Court and the learned Joint District Judge, Aurangabad, allowed the said appeal holding that the Civil Court has no jurisdiction in view of the provisions of the Rent Control Act. The learned joint District Judge, however, held that the plaintiff had proved his case for grant of temporary injunction on facts. The learned Joint District judge, however, stated earlier, allowed the appeal, as he found that the civil Court had no jurisdiction. Being aggrieved by the said order of the joint District Juge, the tenant has come in revision to this Court.
( 6 ) SHRI Patni, who appears for the revision petitioner the tenant, has contended that it is clear that both the Courts have come to the con-clusion that on facts the plaintiff has proved his case for grant of temporary injunction. It is, therefore, further contended that the only question that is required to be taken into consideration, therefore, in this revision petition is as to whether the Civil Court has jurisdiction to grant temporary injunction and if the finding is in affirmative then the order passed by the learned Civil Judge ought to be restored setting aside the order passed by the Joint District Judge.
( 7 ) HE strenuously tried to rely on the provisions of Section 20 (1)of the Rent Control Act to contend that the landlord is bound to keep the house in reasonably good repairs and this provision gives a right to the tenant that the premises rented out to him shall be kept in reasonably good repairs by the landlord. Thereafter he further relied on the subsection (2)of the same section to contend that if the landlord neglects to make, within a reasonable time after the notice by the tenant is served upon him by post or otherwise, any repairs which he is bound to make under sub-section (1), the tenant may make the repairs himself and deduct the cost of such repairs from the rent or otherwise recover it from the landlord.
( 8 ) THE only restriction imposed in respect of recovery of the repair charges is provided in the proviso and it lays down that where the tenant makers the repairs himself, the amount so deducted of recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year. It is very strenuously contended that the said proviso only restricts the recovery of the amount spent for the repairs by the tenant. It was further contended that sub-section (1) of section 20 provides that landlord is bound to keep the house in reosonably good repairs and the said provision creates a right in favour of the tenant. It is also contended that sub-s ection (2) clearly provides that if the landlord neglects to make, the repairs within a reasonable time after the notice is served by the tenant, calling upon him to effect the repairs, which he is bound to make under sub-section (1), the tenant is given a right to repair the same himself and this right is unrestricted and the amount required for such repairs is also unrestricted. It is also contended that when a right is given there must be remedy also and, therefore, if a right is given by sub-section (2) of Section 20 to the tenant, he is entitled to get repairs done himself and for that purpose he js entitled to seek a remedy of injunction from the Civil court. Apparently this argument definitely looks attractive, but it would be necessary to consider also sub-section (3) along with sub-sections (1)and (2) of Section 20 of the Rent Control Act. Sub-section (3) runs as under :
" (3) Where the cost of such repairs exceed one-twelfth of the rent payable by the tenant for that year or where the house is directed to to leased under
Section 4 or Section 5, the Controller may by order direct the landlord to execute such repairs which he is bound to make under sub-section (1), and as may be specified in the notice, within such reasonable time as may be mentioned therein and if the landlord fails to execute repairs in pursuance of such order, the Controller may cause the repairs specified in the order to be executed at the expense of the landlord and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the rent payable to the landlord."
It provides that where the cost of repairs exceeds one-twelfth of the rent payable by the tenant for that year or where the house is directed to be eased under Section 4 or Section 5, the Controller is empowered to direct the landlord to execute the repairs, which he is bound to make under sub-section (1 ). It is also further provided that the Controller can issue a lotice and specify the repairs which are needed and direct the landlord to execute the repairs within such reasonable time as may be mentioned n the notice. It further provides, that if in spite of the said notice, the andlord does not execute the repairs, the Controller is further empowered o execute the repairs or get those repairs done at the expense of the landlord and thereafter he is further empowered to recover the cost of the same either by deducting the same from the rent payable to the landlord or by any other mode of recovery.
( 9 ) ON behalf of the respondent, stress is put on this provision of sub-section (3) to contend that an efficacious remedy is provided in the rent Act itself and, therefore, when the Rent Act is a complete Code, the urisdiction of the Civil Court is at least by implication barred. Reliance is placed on the Ruling reported in Dhulabhai etc. v. State of Madhya pradesh and another, AIR 1969 SC 78. The Supreme Court observed in the said decision as under :
"the result of this inquiry into the diverse views expressed in this court may be stated as follows : (1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure."
it was contended further that though the Act explicitly does not provide for a bar of the jurisdiction of the Civil Court except in certain sections of the Rent Act, such a bar could be also spelt out in certain other sections of the Rent Act and particularly in Section 20. It was contended that in Section 15 a specific bar is provided as it lays down that the tenant shll not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section. Now, it is true that the said section provides a specific bar as it lays down that the eviction of a tenant can be made only in accordance with the
provisions of Section 15 of the Rent Act. Therefore, no doubt, it could be said that where such bar is neither provided explicitly nor can be spelt out impliedly, the jurisdiction of the Civil Court cannot be said to have been barred. But one will be required to consider the
provisions of section 20 in the light of the observations made by the Supreme Court in the decision referred to above and one will have to find out as to whether such an implied bar can be spelt out on reading of the said section. No doubt,
sub-section (1) of section 20 provides for a right of the tenant and an obligation on the landlord that the premises, which is rented out shall be kept in reasonably good repairs. Sub-section (2) further provides that if the landlord fails or neglects to make the repairs which he is bound to make under subsection (1), then the tenant is given certain rights of effecting the repairs. No doubt, there is no restriction of the magnitude of the repairs in subsection (2)itself. In view of this, it is tried to be contended before me on behalf of the petitioner that the restriction provided is only in respect of recovery of the charges or costs of repairs incurred by the tenant and there is no restriction on the magnitude of the repairs to be carried out. But one will have to also read
sub-section (3) of the said section before coming to a conclusion in this respect. If only sub-section (2) is considered without taking into consideration sub-section (3), no doubt, the contention tried to be raised before me appears to be having some substance. But when a provision of a particular section is to be interpreted, one has to put harmonious construction reading the entire section together. Under these circumstances, I feel that it would be necessary to read sub-section (3) along sub-sections (1) and (2) also, for proper interpretation of the entire section. Sub-section (3) provides that where the cost of such repairs exceed one-twelfth of the rent payable by the tenant for that year, then the Controller is given a power to direct the landlord to execute the repairs, which he is bound to make under sub section (1) and if he does not do so, the Controller further is given a power to execute the repairs or get, them executed himself. Now, therefore, it clearly appears that sub-section (3) is provided specifically for the major repairs which are required to be carried out. Sub-section (2), if is read with sub-section (3), would definitely be required to be construed to mean that it covers the repairs which are minor and normally would not require more than the charges or costs of one-twelfth of the rent payable by the tenant for that year. On plain reading of sub-section (2), of course, one may be able to come to the conclusion that there is no such restriction at all. But, as stated earlier, the said sub-section (2) will have to be read in conjunction of sub-section (3) and, to my mind, it is very clear that if the cost of the repairs exceeds one-twelfth of the rent payable by the tenant in that year, he can approach the Rent Controller and seek directions against the landlord that he should effect the repairs and on his failure to do so, the Rent controller can also get the repairs executed.
( 10 ) ON behalf of the petitioner, it was tried to be contended that sub-section (3) comes into play only if the tenant wants to recover charges which are more than one-twelfth of the rent payable by the tenant in that year and, therefore, it does not restrict the said right of repairs provided under sub-section (2 ). The recovery in respect of expenses incurred for carrying out the repairs is only incidental and does not mean that it is only if the tenant wants to recover the charges of repairs and if they exceed one-twelfth of the rent payable by the tenant in that year that the provisions of sub-section (3) could be attracted. So if the entire Section 20 is read, I find that in a case where the magnitude of repairs is more, then a remedy is provided to the tenant that he should approach the Rent Controller and Rent Controller can in such cases direct the landlord to effect the repairs. It further also empowers the Rent Controller to get the repairs executed by himself or through some orher persons, if the landlord fails to do so. Under these circnmstances, sub-section (3) definitely provides a remedy to a tenant in cases where the landlord is not ready to effect the repairs, so as to keep the premises in a tenantable condition. In view of this, it must be held that there is an efficacious remedy provided in Section 20 in respect of the right, which is given to the tenant under sub-section (1) of section 20 and when such a remedy is given to the tenant, by implication it must mean that the remedy provided under the Civil procedure Code is barred.
( 11 ) RELIANCE is also tried to be placed on the Ruling reported in satyapramoda Thirthaswamulavaru v. Mula Gunnayya, (deceased) and others, air 1982 AP 24 on behalf of the petitioner. In the said decision, it was held that :
"when only a part of the relief claimed can be granted by a tenancy Court, the Civil Court had jurisdiction to entertain the suit. Indisputably in the instant case as the Tenancy Court cannot grant relief for damages and only a relief of eviction can be granted by the revenue Court the Civil Court has jurisdiction to entertain the suit."
relying on this decision, it was contended that if no injunction can be granted, as sought by the petitioner, by the Rent Controller, then the civil Court must be considered to be having the jurisdiction under
Section 9 of the Civil Procedure Code. In this respect, the remedy sought by the petitioner would be required to be taken into consideration also. The remedy which is sought by the petitioner is by way of an injunction against the landlord that he shall not obstruct the petitioner from carrying out the repairs of the premises, which are rented out to the petitioner. It is an admitted position that in the present case, the landlord resides on the upper storey of the tenanted premises. The tenant i. e. the petitioner necessarily would be required to enter the premises of the landlord to carry out the repairs as it is contended that the flooring of the -upper storey which is in possession of the landlord has been damaged and due to that the water, that falls on the flooring of the upper storey, percolates through the flooring and ultimately the ceiling of the tenanted premises and ultimately ceiling of the tenanted premises has got damaged and due to that there is a leakage and the water percolates from the ceiling to the ground floor damaging the goods in the shop of the petitioner. On behalf of the petitioner, therefore, it is contended that in such a situation the effective remedy would be only to allow him to carry out the repairs and such a remedy is also contemplated in
sub-section (2) of Section 20 and, therefore, an injunction can be granted against the present respondent that he shall not obstruct the petitioner from carrying out the necessary repairs. I have already found that
sub-section (2) of Section 20 of the rent Control Act will have to be read with sub-section (3) and in a case where the repairs required to be carried out are more than one-twelfth of the yearly rent payable by the tenant sub-section (3) would come into play. Therefore, the remedy, that is provided in sub-section (2), according to me, is only for carrying out the minor repairs, while the remedy provided in sub-section (3) is for getting repairs done when the necessary repairs are major repairs. Now, therefore, when the Rent Act provides a remedy in
sub-section (3) of Section 20, it cannot be said that no effacious remedy is provided in the Rent, so as to allow the tenant to take recourse to the general law under Civil Procedure Code. The remedy provided under sub-section (3) is, on the other hand, very specific and could be considered to be efficacious one. As stated earlier, it provides that the Rent Controller can himself direct the landlord to get the repairs done within a specified period and if the landlord fails to comply with the said requirement, the Rent Controller can himself do the repairs or get the repairs done through anybody. Hence I have absolutely no doubt that the remedy by way of an injunction under Orders XXXIX cannot be resorted to by the tenant.
( 12 ) RELIANCE was tried to be placed on a decision of the Delhi High court reported in Col. (Retd.) Y. R. Puri v. J. C. Mittal and another, (1985)1 RCJ 616, to contend that remedy as provided in Civil Procedure Code could be said to be available to the tenant. It was tried to be contended that the provisions of Section 44 of Delhi Rent Control Act, are similar to the provisions of Section 20 of Hyderabad Rent Control Act and, therefore, the decision of the Delhi High Court requires to be considered. No doubt, sub-section (1) of Section 44 of the Delhi Rent Control Act is pari materia with the provisions of sub section (1) of Sectien 20 of the hyderabad Control Act. Similarly, sub-section (2) of the Delhi Rent Control Act also more or less is similar to the provisions of sub-section (2)of Section 20 of the Hyderabad Rent Control Act, but sub-section (3) of the Delhi Rent Control Act is not pan materia with the Hyderabad Rent control Act. Sub-section (3) of Section 44 of the Delhi Rent Control Act, no doubt, provides that if the landlord neglects er fails to make the repairs after the tenant has given the notice, the tenant can apply to the controller for permission to make such repairs himself and he can submit to the Rent Controller an estimate of the cost of such repairs and thereafter the Controller may after giving landlord an opportunity of being heard and after considering the estimate of the costs and making such enquiry, as may be necessary, order in writing and permitting the landlord to make such repairs at such costs, as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and deduct the cost thereof, which shall in no case will exceed the amount specified by the Rent Controller from the rent payable to the landlord. In the said section, there is also a p roviso which provides that if the amount of repairs exceeds and the tenant agreed to bear the excess cost himself, the Controller may permit the tenant to make such repairs. Therefore, the said provision does not provides for a remedy, as is provided, in sub-section (3) of the Hyderabad Rent Conlrol Act. As per sub-section (3) of Section 20 of the Hyderabad Rent Control Act, the rent Controller is actually even empowered to direct the landlord to carry out the repairs and on his failure to do so, he can get repairs done himself or get the same done through any other person. Such a provision being not there, one could understood that there is no effective remedy provided under the Delhi Rent Control Act and, therefore, the Civil court could be considered to be having jurisdiction to implement the right given to the tenant under Section 44.
( 13 ) EVEN on the point of balance of convenience the remedy of injunction in the present case clearly should not be resorted to, as it would mean that the tenant will have to be allowed to enter the premises which is being used for residential purposes by the landlord for carrying out the repairs. Under these circumstances, when the remedy, that is provided in Section 20 (3) of the Rent Act can definitely be resorted to and is sufficient to give redress to the tenant, it would not be proper to grant an injunction, as sought by the tenant. Hence the order passed by the appellate Court must be held to be proper and needs no interference.
( 14 ) IT was stated before me also that the matter under Section 20 of the Rent Act is actually pending before the Rent Controller. In that event also it would not be proper to grant the relief by way of an injunction sought in the suit. The application pending before the Rent controller could no doubt be expedited by giving suitable directions. Hence, it is directed that the Rent Controller shall dispose of the application pending before him bearing No. 89/rc/cr/7/ws/508 within a period of six weeks from the receipt of this order.
( 15 ) IN the result, the revision petition will have to be dismissed and the same is dismissed. Rule discharged.