Kodiyambal Ammal vs N.V. Ananthakrishnan and Another

V. Ratnam, J.—The defendant in O.S. No. 1068 of 1982, District Munsif''s Court, Poonamallee is the petitioner in this civil revision petition.

The suit was instituted by the respondent herein praying for a permanent injunction restraining the petitioner and her men, agents and servants from

interfering with the right of the respondent to carry out the repairs to the premises bearing door No. 33, South Madai Street, Villivakkam.

According to the case of the respondent, originally the property was let out by Doraiswamy Mudaliar, the husband of the petitioner, to the

respondent in 1969 on a monthly rent of Rs. 70 and on his death in 1979, the respondent attorned the tenancy to the petitioner, who is the wife of

Doraiswamy Mudaliar, and had been paying the. rents as well upto 5th April, 1980 in person Thereafter, the rents, according to the respondent,

had been sent by money-order and the rents upto March, 1982 had also been paid in that manner. The further case of the respondent was that the

premises in his occupation required to be immediately repaired and this was communicated by him to the petitioner and thereupon the petitioner is

stated to have directed the respondent to retain the rents from April, 1982 for four months with a view to carry out the repairs to the premises and

submit accounts also therefor, which was agreed to by the respondent. The Corporation of Madras, according to the respondent, had also issued

a notice to him with reference to the condition of the building in his occupation and directed that it should be repaired within seven days. Pursuant

to the agreement and also the notice issued by the Corporation of Madras, the respondent stated that he commenced the repairs to the premises

and the petitioner objected to the same and in spite of the respondent having explained the position to the petitioner, the petitioner, with the idea of

evicting the respondent from the premises, was attempting to prevent the respondent from carrying out the repairs to the premises. The petitioner,

according to the respondent, had no right whatever to object to the carrying out of the repairs by the respondent and the objections raised by the

petitioner were characterised as unwanted, unreasonable and contrary to her own interest. It was under the aforesaid circumstances that the

respondent instituted the suit for the relief set out earlier.

In I.A. No. 2139 of 1982 in O.S. No. 1068 of 1982, the respondent prayed for an interim injunction restraining the petitioner, her men, agent,

etc., from tresspassing into the premises in the occupation of the respondent and from preventing the respondent from carrying out the repairs to

the premises. In the affidavit in support of that application, the respondent reiterated his cause as set out in the plaint and stated that the petitioner,

who had allowed him to carry out the repairs, had later raised objections at the instance of other persons and that the repairs had to be carried out

forthwith; as otherwise, he will be put to inconvenience and loss owing to the commencement of the rainy season.

That application was resisted by the petitioner disputing the agreement for the accumulation of the rent and the carrying out of the repairs to the

premises by the respondent. The stand taken by the respondent that originally the petitioner allowed the repairs to be carried on and that

subsequently she was objecting to the same was refuted. Reiterating her right to carry out the repairs to the premises in the occupation of the

respondent, the petitioner stated that the condition of the building was such that it required almost total demolition and that, therefore, the carrying

on of the repairs to the premises would only be an utter waste. An objection was also raised with reference to the maintainability of the suit as well

as the application for injunction. Stating that the respondent was in arrears of rent from April, 1982, onwards the petitioner stated that the alleged

accumulation of rents for the purposes of carrying out the repairs was false and that the amount, if expended on repairs, will be totally unproductive

and no case as such under the circumstances was made out for the grant of injunction as prayed for by the respondent.

The learned District Munsif, Poonamallee, who enquired into this application, found that the respondent admitted that the premises in his

occupation will be governed by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, as amended by Act

XXIII of 1973 (hereinafter referred to as the Act), that the Corporation of Madras had not chosen to send any notice with reference to the

condition of the building to the owner of the building, namely, the petitioner herein, that the petitioner had not taken any steps for the demolition of

the building nor had she intimated to the respondent about the condition of the building and that, the premises had no roof then and, therefore, the

respondent can be permitted to carry out the repairs to the roof. Aggrieved by this, the petitioner preferred an appeal in C.M.A. No. 65 of 1982

to the District Court, Chenglepattu. During the pendency of the appeal a Commissioner was appointed and he had inspected the premises on two

occasions and submitted report as well as a plan. Taking into account such features as were revealed by the reports as well as the plan of the

Commissioner, the learned District Judge was of the view that the respondent must be permitted to put up a roof over the portion where-such roof

was not in existence. In that view, the appeal was dismissed and it is the correctness of this order that is challenged in this Civil Revision Petition.

The learned Counsel for the petitioner contends that having regard to the admitted applicability of the provisions of the Act to the premises in the

occupation of the respondent, the respondent cannot be permitted to carry out the repairs to the premises in the occupation unless he conforms to

the require-, merits of Section 22 of the Act and in the absence of any permission from the Controller enabling the respondent to carry out the

repairs to the premises, the respondent cannot be allowed to carry out the repairs to the premises. In support of his contention, the learned

Counsel for the petitioner, apart from relying upon the provisions of Section 22 of the Act and the procedure prescribed therein, placed strong

reliance upon the decisions in Doraipandi Konar Vs. P. Sundara Pathar, and Edpuri Rama Subbiah Vs. C.J. Cole and Another, . On the other

hand, the learned Counsel for the respondent would submit that the conduct of the petitioner had been such as to infer that she was a consenting

party to the carrying on of the repairs by the respondent and the remedy of injunction being & discretionary one and the Courts below having

thought fit to exercise that discretion in favour of the respondent, the order of the Courts below cannot be characterised to be in any manner

vitiated. In support of this, the learned Counsel for the respondent relied upon A.A. Abdul Rasheed Vs. L.M. Basheer Ahmed Rowther and

Another, .

In paragraph 6 of the order of the learned District Munsif, it has been clearly stated that the respondent had admitted that the provisions of the

Act would be applicable to the premises in the occupation of the respondent. If that be so, then it is not open to the respondent to bypass the

procedure laid down u/s 22 of the Act and seek to carry out the repairs to the premises. Indeed, it is seen from the counter-affidavit filed by the

petitioner that an objection had been raised with reference to the maintainability of the suit and the application for injunction. In addition, it is also

seen that the petitioner had disputed the very agreement for accumulation of rents to enable the respondent to carry out the repairs. The relief that

had been asked for by the respondent in the suit is one for injunction and even at this stage the Courts below had, by granting an injunction as

prayed for by the respondent, assumed the case of the respondent to be true with reference to the agreement to carry out the repairs and had

proceeded to grant injunction as prayed for by him. The learned District Judge, though he was aware of the dispute raised by the petitioner with

reference to the truth of the agreement set up by the respondent, proceeded to state that the truth or otherwise of that had to be decided only

during the course of the trial of the suit, but relied upon the reports as well as the plan of the Commissioner. A perusal of the reports as well as the

plan submitted by the Commissioner would indicate that the portion marked A E I H is in good repair and that there is no roof over the portion A

B C D E. There is nothing in the order of the learned District Judge to indicate how the absence of a roof over the portion A B C D E would

enable the respondent to carry out the repairs to the premises. Prima fade, therefore, the reasons given by the Courts below for granting an

injunction in favour of the respondent are wholly unsustainable.

In view of the stand taken by the respondent that the provisions of the Act would be applicable to the premises in his occupation, the Courts

below were in error in having proceeded to permit the respondent to carry out the repairs to the premises without reference to Section 22 of the

Act. From the materials on record, it does not appear that the respondent ever brought it to the notice of the petitioner that the premises is in need

of repairs. As seen earlier, the notice stated to have been issued by the Corporation of Madras was not even served on the petitioner. Therefore,

there was absolutely no occasion for the petitioner to know that the premises in the occupation of the respondent was in need of repairs. In such a

situation, it is not open to the tenant to carry out repairs without reference to the petitioner or without the permission from the Controller as

provided for u/s 22 of the Act. In Edpuri Rama Subbiah Vs. C.J. Cole and Another, the question arose whether without informing the landlord that

the premises in the occupation of a tenant requires repairs it will be open to the tenant to apply for permission to the Controller for carrying out

repairs to the house and deduct the costs thereof from the rent payable. In considering that question, Subba Rao, J. (as he then was), interpreting

Section 11(2) of the Madras Buildings (Lease and Rent Control) Act, XXV of 1949, which is in pan materia with Section 22 of the Act) held that

two conditions have to fulfilled before a tenant can be permitted to make repairs to the building and they were: (1) the landlord should have failed

to make the necessary repairs after notice is given by the tenant; and (2) the Controller should give permission to him to effect the repairs after the

landlord had defaulted to carry out the repairs after notice given by the tenant. It was further held that without fulfilling these two requirements, the

tenant cannot be permitted to effect repairs to the building in his; occupation. Again, Doraipandi Konar Vs. P. Sundara Pathar, reiterated this

position and laid down that having regard to the rights and liabilities of the tenant and the landlord in respect of repairs as laid down in the Act, such

rights and duties relating to repairs must be ascertained only by reference to Section 22 of the Act and it is not open to the parties to fall back upon

the terms of the tenancy agreement or the provisions of the Transfer of Property Act for that purpose. In view of these decisions, it is obvious that

even in the present case, which is admitted by the respondent to be governed by the provisions of the Act, the respondent should have conformed

to the provisions of Section 22 of the Act and issued a notice to the petitioner informing her that repairs; have to be carried out and only in default

of the carrying out of such repairs, by the petitioner, the respondent ought to have further proceeded before the Controller for obtaining permission

to carry out such repairs and in its absence, the respondent cannot be permitted to carry out repairs at his will and pleasure and proceed to deduct

the costs of the repairs from the rent payable. Earlier it has been noticed that the petitioner had not only disputed the truth of the agreement, but

also the maintainability of the suit. To hold that the respondent is entitled to an injunction would be to uphold the truth of the agreement even at this

stage and to enable the respondent to violate the provisions of Section 22 of the Act. The decision in Abdul Raskeed v. Basheer Ahmed Rowther

(1972) 85 L.W. 27 : (1972) 1 M.L.J. 263 does not purport to deal with a situation as in the present case, but proceeds to reiterate the well-

known principles governing the grant of injunctions, namely, balance of convenience and exercise of judicial discretion. In this case, the balance of

convenience is also only in favour of the petitioner as the respondent cannot by his unilateral act be permitted to carry out the repairs at

considerable expenses without her knowledge and without her being aware of the nature of the repairs even. Taking into consideration all the

aforesaid circumstances, the Courts below cannot be stated to have exercised their discretion in a sound manner which would accord with the

statutory rights and obligations.

The Courts below were, therefore, in error in having granted an injunction as prayed for by the respondent. The respondent as a tenant is

entitled to remain in possession of the property until such time as he is lawfully evicted by the process of law. Till such time, the petitioner cannot

interfere with the possession and enjoyment of the property by the respondent as a tenant. At the same time, the respondent, taking advantage of

his j possession of the property, cannot be permitted to carry out repairs to the premises in contravention of the provisions of Section 22 of the Act

referred to earlier. In view of this, the Courts below were not correct in having granted an injunction in favour of the respondent permitting him to

put up a roof in the premises in his, occupation. The orders of the Courts below are, therefore, set aside and the civil revision petition is allowed.

There will be no order as to costs.

The learned District Munsif, Poonamallee, is directed to dispose of the suit O.S. No. 1068 of 1982 On his file on or before 31st October,

1983, and report such disposal to this Court.