Jatindra Nath Sadhukhan, Landlord vs Upendra Nath Ghosh Tenant

Debabrata Mookerjee, J.—This is an application u/s 25 of the Small Cause Court Act directed against an order of the Additional Small Cause Court Judge, Sealdah, dated the 27th April, 1955, decreeing the suit of the plaintiff-opposite party in the sum of Rs. 251-14-0 with costs. The opposite party is a tenant under the petitioner, who is the landlord of premises No. 38B, Pratapaditya Road. The tenant is in occupation of the front block of the premises at a monthly rent of Rs. 36. The portion in occupation of the opposite party having fallen into disrepair, an application was made to the Rent Controller u/s 38 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, for orders requiring the landlord to make certain essential repairs and there was a further prayer that in the event of the landlord refusing to carry out those repairs, permission might be given to the tenant opposite party to make them. In the proceedings thus instituted, an estimate was filed by the tenant in occupation and the Controller, before whom the proceedings were had, approved of the estimate after giving an opportunity to the petitioner landlord of being heard in the matter and allowed a sum of Rs. 263-6-0 as costs which might be incurred on account of the repairs. Thereafter the opposite party employed a contractor and carried out the repairs. The petitioner landlord having refused to pay the amount expended on account of the repairs thus made in spite of demands, the present suit was filed before the Small Cause Court Judge, at Sealdah, claiming that the plaintiff was entitled to a decree for the sum, so expended and costs.

In the suit thus instituted before the Small Cause Court Judge, evidence was adduced by the plaintiff for the purpose of proving the claim to the amount which had been expended on account of repairs. The contractor''s bills were produced and proved in due course. In support of the bill, the contractor was examined before the learned Judge.

The petitioner who was the defendant in the Court below contested the proceedings and his case was that the bill submitted on which the claim had been founded was not correct and unsupported by vouchers and consequently the plaintiff was not entitled to the amount claimed. Some evidence was adduced by the defendant in support of the case made.

Learned Small Cause Court Judge appointed a Commissioner for the purpose of holding a local inspection. The inspection was held and a report made which was duly received in evidence and marked as Ext. 1.

On a consideration of the evidence adduced before him, the learned Judge came to the conclusion that the plaintiff opposite party was entitled to get a decree in the sum of Rs. 251-14-0 and in that view allowed the claim with costs. The tenant then applied to this Court and obtained the present Rule.

On the merits Mr. Bagchi has assailed the order of the learned Judge on three items which find mention in the contractor''s bill and which according to him have not been properly considered by the learned Judge with the result that the amount sanctioned upon those items have been sanctioned in excess of what should have been allowed. In the first place, it is stated that repair to the roof of the kitchen and the privy which required to be attended to, had been included in the bill but the area that was actually repaired is less than what had been actually sanctioned and passed by the Rent Controller I am afraid this ground cannot be sustained. The learned Small Cause Court Judge considered the matter and he allowed some deduction on that head. The amount claimed appears to be Rs. 51 but the amount allowed is Rs. 42-8-0 Mr. Bagchi has contended that he was entitled to have a further reduction. I am not persuaded that the facts proved in the case will entitle the petitioner to a further reduction on this head. The second ground of objection relates to item No. 10 of the bill. The complaint is that although the wooden planks supplied for the ceiling were all old planks, no consideration was made by the learned Judge since new planks had not been used. The evidence in the case to which my attention was drawn makes it clear that the cost estimated was put in a lump and it was stated that the wood to be supplied may, if necessary, be new. Therefore it is clear that the learned Judge did not make a mistake in allowing Rs. 20 which was the lump amount fixed on account of planks or because no deduction was allowed simply because the planks put up are not new. The estimate itself left it open to supply planks which might be new or old. The third ground of complaint is founded on the fact that although the Pleader Commissioner stated that he had inspected only one of the four C.I. Sheets put up, the learned Judge allowed costs on the footing that all the four C. I. Sheets were new sheets. The argument seems to be that since the Pleader Commissioner had not made it clear that the other three sheets were also new sheets, the learned Judge should not have allowed costs of replacement of damaged sheets on the footing that all the sheets were new ones. I cannot possibly accept this contention; since the other three sheets were not inspected or could not be inspected by the Pleader Commissioner, therefore, the learned Judge should be obliged to think that these three sheets were old sheets is in argument which I can not appreciate I do not think, therefore, that there is any substance in any of the grounds on the merits which were urged to show that there was error committed by the learned Small Court Judge in dealing with or disposing of the proceedings. The criticism as respects non-production of voucher in support of the contractor''s Bill appears to be a belated one and cannot consequently be given effect to at this stage.

The next point which Mr. Bagchi has sought to make relates to the construction of section 38 of the Rent Control Act, 1950. The point is that, where a tenant is in possession and orders have been passed by the learned Rent Controller authorising repairs to be done by the tenant at the cost of the landlord, such tenant cannot recover the costs by instituting an independent action. Mr. Bagchi contends that if the tenant is in possession, the Legislature intended that the only way in which he might reimburse himself would be by deducting the amount expended from the rent which he is liable to pay to the landlord. This point requires to be examined.

Sub-section 1 of section 38 of the Rent Control Act provides that the Controller shall, on an application made by the tenant in possession of any premises, cause a notice to be served upon the landlord requiring him to make any repairs which the landlord is bound to make or to take any measures for the maintenance of essential services, as for example, supply of water, electricity, etc., which the landlord is bound to maintain under the condition of the tenancy or according to local usage. Sub-section 2 provides that if after such service of notice the landlord fails to show proper cause or neglects to make the repairs within a reasonable time or to take the measures for maintenance of essential services, the tenant may apply to the Controller for permission to make the repair or to take such measures himself. Subsection 2 further provides that the Controller may, after giving the landlord an opportunity of being heard and after considering the estimate of cost submitted in writing before him, permit the tenant to make such repairs or to take such measures, as the case may be, at a cost to be specified in the order of the Controller. The tenant thereafter will have the right to make the repairs or to take the measures himself and then to deduct the cost of such repairs or such measures "from the rent or otherwise recover it from the landlord".

There is a proviso attached to sub-section 2 which says that the amount to be deducted or to be recovered in any year would not exceed 1/12th of the rent payable by the tenant in that year. The second proviso that follows is not material to the present case and is therefore left out of consideration.

Sub-section 3 of section 38 is in a way an extension of the rights of the tenant given and regulated by sub-sections 1 and 2. Sub-section 8 says that the repairs or the measures referred to in sub-section 1 will not be deemed to include such repairs or measures without which the premises in question will not be habitable or usable except with great inconvenience, like keeping the premises wind and watertight. It further provides that the landlord will be bound to make these repairs in any event and upon failure to do so the provisions of sub-sections 1 and 2 shall apply without the limitation as to the amount deductable or recoverable as laid down in proviso 1 to sub-section 2.

Mr. Bagchi has argued that in view of the provisions contained in section 38, the tenant in possession has only the right to reimburse himself for the costs he has incurred on account of repairs, etc., by deducting the amount from the rent which he is liable to pay to the landlord. In other words, such tenant has no independent right of action. In the present case the tenant is still in possession and consequently the suit which he brought before the Judge in the Small Causes Court is a suit which was not entertainable.

The position is clearly incontestable that the Legislature has given the right only to a tenant in possession to require the landlord to make repairs or to take measures for the maintenance of essential supplies or services which the landlord is bound to make under conditions of the tenancy or according to local usage. The tenant is given the right to move the Controller and get an appropriate order in such case after submitting a bill of costs and getting the same approved by the Controller before incurring the costs of repairs and then to reimburse himself by deducting the amount specified in the Controller''s order which he is authorised to expend "from the rent or otherwise recover it from the landlord." In my view the Legislature has expressly given the right to an alternative independent action to the tenant. It seems to me that the tenant can either deduct the costs of repairs or of taking measures for maintenance of essential service or supplies or in the alternative he can "recover it from the landlord". Clearly an alternative right has been given to the tenant by express provision. The argument advanced by Mr. Bagchi that where the tenant is in possession, the Legislature intended to limit the tenant to deduct the costs from the rent seems to me to be clearly negatived by the language used in the section.

Sub-section 2 provides that upon failure of the landlord to carry out the repairs or to take the necessary measures for essential supplies, the tenant has the right of moving the Controller for an appropriate order entitling him to carry out the repairs or to take other measures for maintenance of supplies. The tenant in sub-section 2 is the tenant mentioned in sub-section 1 and sub-section 1 of section 38 makes it quite clear that the application is the application of any "tenant in possession of any premises". I have not the slightest doubt that the language used in section 38 in its different sub-sections refers only to the case of a tenant in possession. These are really the opening words in sub-section 1 and I cannot see how it can be said that in the concluding portion of sub-section 2 of section 38, the Legislature contemplated the case of a tenant somehow being not in possession and it is only such tenant, who is given the right of an independent action to realise his costs of repairs, from the landlord. This construction seems to me to be repelled by the very scheme of section 38 and the language used in it. I therefore hold that the Legisltaure has provided an alternative remedy to the tenant, who has incurred costs of repairs of the premises of which he is the tenant in possession either to deduct the amount of the cost from the rent or to bring an independent action against the landlord for realisation of the amount, so expended by the tenant.

Sub-section 3 only lifts the bar of limitation as to the amount deductible or recoverable as laid down in proviso 1 to sub-section 2, and exempts in a class of specified cases not of obligation of the landlord arising out of contract or custom to do the repairs.

In my view, therefore, there is nothing in section 38 of the West Bengal Premises Rent Control Act, 1950, which would disentitle the tenant from bringing an independent action for realisation of the costs incurred under the authority of the Controller on account of essential repairs to the premises of which he is the tenant in possession.

I must therefore negative the contention raised by Mr. Bagchi that the suit in the present case was not maintainable inasmuch as the tenant was in occupation of the premises and therefore it was not open to him to bring an independent action. This contention is clearly repelled, in my view, by the clear words used by the Legislature in section 38 of the Act. The result therefore is that this Rule is discharged, But in the circumstances of the case, there will be no order for costs.