Bharat Bhushan vs Girdhari Lal

This revision is directed against order dated 31.10.2002 passed by 1st. Additional District Judge Jammu in appeal against order dated

17.8.2000 passed by Rent Controller (CJM) Jammu. Briefly stated facts as revealed from record are that petitioner herein is a tenant of shop

situate at Chand Nagar, Jammu. Shop was obtained about 40 years back on monthly rent of Rs. 40/. Rent deed was executed between

respondent/landlord and petitioner/tenant. On 15.5.1999, petitioner filed an application under section 27 of the J&K Houses and Shops Rent

Control Act 1966 against father of respondent namely Dina Nath seeking direction for replacement of wooden doors by a steel shutter or to make

some solid arrangement with a view to make the doors more strong and effective for saving the property of the petitioner and also direction for

raising ground level of the floor of the shop. It was stated before Rent Controller (CJM) Jammu that shop has not been repaired by the landlord

since the inception of tenancy in the year 1972. Wooden doors are in dilapidated condition and are required to be replaced by a steel shutter. It

was further alleged that ground level of the floor of the shop is required to be raised so as to make shop habitable and usable. In raining season,

rain water enters the shop and it is not possible for the petitioner to carry on his business.

During pendency of the application before Rent Controller (CJM) Jammu, Girdhari Lal son of Dina Nath respondent herein made an application

for his impleadment as party respondent on account of the fact that shop in question has fallen to his share in family partition. This application was

allowed by Rent Controller (CJM) Jammu. Petitioner led his evidence with a view to establish that shop is in bad condition and its wooden doors

are also in dilapidated condition. He also tried to establish that rain water enters the shop during raining season and there is need to raise level of

the floor. On the other hand, respondent also led his evidence to prove that wooden doors are not in dilapidated condition are there is no need to

raise ground level of shop as it has sufficient height i.e. two feet from the road level. Respondent resisted the petition on the ground that

replacement of wooden doors and raising of level of the floor of the shop do not constitute repair and it amounts to structural alteration which is

impermissible under section 27 of the J&K Houses and Shops Rent Control Act 1966. After hearing both the parties, Rent Controller (CJM)

Jammu held that replacement of wooden doors by a steel shutter and raising of ground level of the shop does not come within the purview of

section 27 of J&K Houses and Shops Rent Control Act 1966. He accordingly dismissed the application of the petitioner vide order dated

17.8.2000. An appeal was preferred against this order before learned 1st Additional District Judge Jammu being appellate authority. Appellate

authority concurred with the findings of Rent Controller (CJM) Jammu. Hence, this revision preferred before this court. During pendency of this

revision, vide interlocutory order dated 5.12.2003, Local Commission was appointed to determine whether floors of the other three adjoining

shops have been raised by the landlord or by the persons who are in possession of these raised shops. Pursuant to the direction, Mrs. Aruna

Thakur, Local Commissioner submitted her reportdated 15.12.2003. It is reported that floors of all the three shops i.e. Pawan Karyana Store,

Sunny Beauty Saloon and C.M. Fancy Dupatta are higher than petitioner's shop namely New Gift Electronics has been raised approximately 7

from the level of drain and road whereas floors of other shops are between 11/2' to 2'. 41/2"" in height. Petitioner's shop has a small wall about 9

high being used as a barrier for preventing the water entry in the shop which is stacked with big boxes. The floor of shop namely C.M. Fancy

Duptta is raised about 2'. 41/2"" above the road level whereas floors of Sunny Beauty Saloon and Pawan Karyana Store are raised about 21

height. Commissioner has also reported that drain in front of petitioner's shop is uncovered whereas other shops have projection upto about 32

including the steps. Commissioner has further reported that with the raising of floor of other three shops, height of these shops is considerably

reduced and is less than height of the petitioner's shop. Objections have been filed to the report of Commission by respondent. It is stated that

other three shops i.e. Pawan Karyana Store, Sunny Beauty Saloon and C.M. Fancy Tailor have fallen in the share of Pawan Kumar, who is also in

occupation of Pawan Karyana Store and he has made changes according to his own requirement. Sunny Beauty Saloon is also in occupation of

Sh. Pawan Kumar though same has been given on licence on daily basis. He has made changes according to his choice. However, C.M. Fancy

Dupatta Tailor is letout by Pawan Kumar on monthly rent of Rs. 350/. It is further stated that petitioner is paying Rs. 40/ p.m. for the last 40 years.

His contractual period is over and he is holding the premises as statutory tenant. It is stated that replacement of wooden doors by an iron shutter

and raising ground level of the floor amount to structural alterations which could only be possible if a fresh contract is entered into between the

parties on fresh terms and conditions.

I have heard learned counsel for the parties. Learned counsel for the petitioner submits that repair sought is permissible under section 27 of J&K

Houses and Shops Rent Control Act 1966. It is stated that replacement of wooden doors by an iron shutter fall within meaning of repair. It is

submitted that raising of ground level is intended to make the shop habitable and useable and also fall within meaning of repair and does not come

within purview of reconstruction or construction. Reliance is placed on AIR 1958 Mysore 77 (Ullal Dinkar Rao v. M. Ratna Bai) wherein it was

held that ""replacement of the roof or the floor or a wall of the cow shed or the bath room would be a repair but not their entire reconstruction"".

On the other hand, learned counsel for the respondent submits that as far repair of wooden doors is concerned, if it is in dilapidated condition,

respondent is willing to repair it. According to him, raising of level of floor is structural alteration and no direction could be issued by the Rent

Controller in proceedings under Section 27 of J&K Shops and Houses Rent Control Act 1966 and therefore, both the courts below have rightly

rejected the application of the petitioner. He has also placed reliance on AIR 1967 SC 643 (Manmohan Dass Shah & Ors v. Bishun Dass)

wherein Apex Court held as under:

Lowering the level of the ground floor by about 11/2 ft by excavating the earth there from and putting up a new floor, the consequent lowering of

the front door and putting up instead of larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new

door step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door

originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but

are such as to give a new face to the form and structure of the premises.

Section 27 of J&K Houses and Shops Rent Control Act 1966 deal with making of repairs and taking of measures for the maintenance of essential

services by the tenant on the failure or neglect of the landlord to do so. Sub section (1) of Section 27 of the Act permit the tenant to approach Rent

Controller with written application for seeking direction for making any repair which the landlord is bound to make to the house or shop or to take

any measures for the due maintenance of any essential supply or service such as the maintenance of the supply of water or electricity, the

maintenance of conservancy or sanitary service and the maintenance of any lift, which such landlord is bound to maintain in the house or shop

under the conditions of the tenancy or according to local usage. Sub section (2) of section 27 of the Act permit the tenant to make such repairs and

take all measures on failure of the landlord to do so. Tenant can make such repairs and take measures if so permitted by the Controller and can

deduct the money spent by him from the rent of premises, however, this deduction can not exceed more then 1/12 of the rent payable by the tenant

for that year and if costs of repairs/measures exceed the permissible limit, Controller may permit the tenant to incur the same. Sub Section (3) of

section 27 of the Act defines scope of repairs/measures envisaged in sub sections (1) and (2) which interalia include such repairs or measures

without which the house or shop is not habitable or usable except with great inconvenience like keeping the premises wind and water tight. The

landlord is bound to make such repairs or take such measures. On his failure to do so the provisions of sub sections (1) and (2) shall be applicable

without limitation as to amount deductable or recoverable as provided in the said sub sections.

Mr. L.K. Sharma learned counsel appearing for respondent submits that revision against the orders is not maintainable. Two questions fall for

consideration. On scope of exercise of revisional power by this court and 2nd is extent of ""expression"" repairs used under section 27 of J&K

Houses and Shops Rent Control Act 1966.

Learned counsel appearing for the respondents submits that High Court in exercise of revisional power cannot correct order of subordinate

court even if it is erroneous unless it relate to question of jurisdiction of subordinate court. Reliance is placed on AIR 1972 SC 2379 (M.L. Sethi v.

R.P. Kapur). Apex Court while dealing with scope of revision under section 115 of the Code of Civil Revision, held as under:

The provisions of S 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S.

115, it is not competent to the High Court to correct errors of fact however gross they may be or even errors of law, unless the said errors have

relation to the jurisdiction of the Court to try the dispute itself. As clauses (a) (b) and (c) of S. 115 indicate, it is only in cases where the

subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of

its jurisdiction illegally or with material irregularity that the Court can be properly invoked. It is conceivable that points of law may arise in

proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of

res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party

raising them would oust jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of

jurisdiction which fall within the purview of S. 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court

which has no relation to questions of jurisdictions of that court cannot be corrected by the High Court under S. 115"".

Revisional jurisdiction is conferred upon High Court under sub section 4 of section 21 of J&K Houses and Shops Control Act, which reads as

under:

(4) From an order made in such appeal no further appeal shall lie but he High Court may revise the order on the ground of error of law or on the

ground of material failure of justice.

This provision interalia not only empowers the High Court to correct the error of law but also to revise on the ground of ""material failure of

justice"". Expression material failure of justice cannot be used in a narrow sense. It has to be given a purposeful meaning which facilitate

administration of Justice.

In the present case, no repair has been effected for the last 43 years which fact is not denied by respondent/landlord. Admittedly wooden doors

of the shop are exposed to vagaries of weather like rain and sun. It is amenable to natural decay. Learned counsel for the respondent has fairly

conceded that his client is ready to undertake repair of wooden doors if necessary. Prayer of the petitioner for raising floor of the shop is also to be

considered in the facts and circumstances of the present case. Floors of the adjoining shops have been raised. This is evident from the report of the

commissioner. It is also revealed from the report that there is open drain in front of shop of the petitioner and there is every possibility of entry of

rain water into the shop during rainy season. It appears from the report that landlord of the adjoining shops, who is near relation of the respondent,

has raised floors of the shops or permitted the tenants therein to raise floors. This is obviously with a view to prevent entry of rain water and make

the shops habitable and useable. If similar treatment is denied to the petitioner it would definitely amount to ""material failure of justice"". Ratio of the

judgment relied upon by Mr. Sharma has no application to the present case as it is based upon interpretation sought to be placed upon the

provisions of section 115 of CPC. Here revision is under specific provisions of section 21(4) of J&K Houses and Shops Rent Control Act 1966

which is not only distinct but has wider scope.

The other question which requires consideration in the present revision petition is whether replacement of wooden doors and raising of ground

of the floor of the shop fall within definition of ""repair"" or Structural alteration. Courts below have simply said that replacement of wooden doors by

an iron shutter and raising of ground level of the shop amount to structural alteration and thus beyond the scope of section 27 of J&K Houses and

Shops Rent Control Act. Courts below have failed to examine the controversy in its true and real sense.

Now coming to the question what is meaning of ""repair"" as envisaged in section 27 of J&K Houses and Shops Rent Control Act, though sub

section (1) of this section permit repair which landlord is bound to make under the conditions of tenancy or is essential. Meaning of repair is further

clarified and defined by sub section (3) of section 27 of J&K Houses and Shops Rent Control Act which include such repair without which shop is

not habitable or useable except with great inconvenience like keeping it wind and water tight. Therefore, any repair which is necessary to keep the

premises wind and water tight would fall within definition of repair. In the present case, it is found that location of the shop is such that during

raining season there is every possibility of entry of rain water into the shop. Report of the commissioner further establish that ground level of the

other shops has been raised to the extent of 2'. 41/2"". This has been done to prevent the entry of rain water and to keep the shops habitable and

useable. If this is the situation, petitioner's shop cannot be kept water tight without raising level of the floor and thus raising of ground level of the

shop would fall within scope of repair as envisaged under section 27 (3) of J&K Houses and Shops Rent Control Act. In view of the above, this

petition is allowed. Impugned orders are hereby set aside. Respondent is directed to effect repair by replacing wooden doors as may be deemed

necessary to keep shop habitable and useable and also to raise floor of the shop so as to prevent entry of water from open drain/lane to keep it

water tight. Let repairs be carried out within a period of one month failing which petitioner shall be entitled to effect necessary repairs though at his

own costs.