M.R. Gopalakrishnan Nair vs M.K. Joshi and Another

K. John Mathew J.

The plaintiff who is the landlord of a building filed O. S. No 137/84 before the Munsiff''s Court, Ettumanoor, for a permanent injunction restraining the defendant tenant from making any additions or alterations to the plaint schedule building. The plaintiff also filed an application in I. A. No. 738/84 praying for a temporary injunction to restrain the defendants from doing the above-said acts till the disposal of the suit. The defendants filed two applications, I. A. Nos. 776 and 805 of 1984. In I. A. No. 805/84 the defendants sought for an order against the plaintiff to restrain him from demolishing the building. In I. A. No. 776/84 the defendants prayed for the issue of a commission for thatching and repairing the building. The trial court heard these three applications together and by a common order dated 21-8-1984 allowed all the three applications. As such now there is a temporary injunction restraining the defendants from making any additions or alterations to the plaint schedule building and there is an injunction against the plaintiff from demolishing the building. By the order in I. A. No. 776/84 the trial court directed the plaintiff to thatch the building and repair the same within one month at his own expenses and in case he fails to do so, there is a further direction that the defendants are allowed to take out a commission for thatching and repairing the building at the cost of the defendants and the cost will be adjusted against the rent of the building in question. The plaintiff challenges the order in I. A. No. 776/84 in this civil revision petition. The learned counsel for the plaintiff-revision petitioner, who is hereinafter referred to as the landlord, contended that the Munsiff''s Court, had no jurisdiction to pass the impugned order u/s 151 or any other provisions of the Code of Civil Procedure. According to him the civil court has no jurisdiction to entertain such an application in view of the provisions in section 17 (2) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act. According to the landlord, the building in question is almost completely dilapidated and only by reconstructing the came it can be made fit for humanhabition or for the conduct of any business. It was also contended that in any view of the case there was no notice to the landlord to effect any repairs. The learned counsel for the defendants-respondents, hereinafter referred to as the tenant, supported the order of the Munsiff''s Court, It was submitted that the civil court has jurisdiction to entertain such an application. These is no express or implied bar in section 17(2) of the Act ousting the jurisdiction of the civil court. The Munsiff''s Court relied on the commissioner''s report which will show that the building required urgent repairs and there was no illegality in the order of the lower court which accepted the commissioner''s report.

Both the learned counsel argued elaborately on the question of jurisdiction of the civil court to entertain an application by the tenant to direct the landlord to repair the building. Section 108 (f) of the Transfer of Property Act, which is the general provision of law, is as follows:

Rights and liabilities of lessor and lessee.--

In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased.

x x x

(f) If the lessor neglects to make, within a reasonable time after notice, any repairs, which he is abound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent or otherwise recover it from the lessor:

Section 17 (2) of the Act is as follows:

Conversion of buildings and failure by landlord to make necessary repairs.--

(1). x x x

(2) Notwithstanding any law, custom, usage or contract to the contrary, the landlord shall be bound to attend to the periodical maintenance and necessary repairs of the building. If the landlord fails to attend such maintenance or repairs to the buildings and amenities thereto within a reasonable time after notice is given by the tenant, it shall be competent for the Accommodation Controller to direct on on application by the tenant that such maintenance and repairs may be attended to by the tenant and that the charges and cost thereof may be deducted with interest at six per cent per annum from the rent which is payable by him.

According to the landlord, the provisions under the Act alone is applicable and the provisions of the Transfer of property Act extracted above are not applicable to this case.

The first question to be considered is whether the civil court has jurisdiction to entertain such an application by the tenant. u/s 9 of the Code of Civil Procedure, the civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. As far as section 17 (2) of the Act is concerned, it is clear that there is no express bar of jurisdiction of the civil courts. In the Act there is no general provision of bar of jurisdiction of civil courts However, it may be noticed that in section 11 of the Act relating to eviction of tenants it is specifically provided that the provisions of the Act are applicable notwithstanding anything to the contrary contained in any other law or contract. So also it may be noticed that section 14 of the Act which provides for execution of the orders does not refer to any order section 17 (2) of the Act. Different Courts including the Supreme Court of India have considered provisions of special enactments and how far the jurisdiction of the civil courts is outed in such cases. The general principles applicable in order to find out whether the jurisdiction of the civil courts is ousted or not is now more or less settled by these different judgments.

u/s 108 (f) of the Transfer of Property Act, the lessor is liable to make repairs "which he is bound to make to the property". The statute does not cast on the lessor any duty as such to make any repairs, Only if he is otherwise bound, namely, by contract, custom or in any other manner, he will be liable to make repairs. (see Steuart and Co. Ltd. Vs. C. Mackertich, ; Behari and Another Vs. Kunjar Lal, ; Doraipandi Konar Vs. P. Sundara Pathar, and Mirza Afzal Beg Vs. Prabhu Dayal, . Therefore, it cannot be said that there is any general law making the lessor-landlord liable to repair a building. If so the only provision of law under which the landlord can be made liable to repair the building is under sec. 17 (2) of the Act. That provision makes the landlord liable to attend to the periodical maintenance and necessary repairs of the building and in case the landlord fails to attend to such maintenance or repairs within a reasonable time after notice is given by the tenant the remedy of the tenant is to move the Accommodation Controller as provided therein. This is a special remedy granted under the Act and a machinery is provided for enforcing that remedy. Whether the remedy provided is sufficient and adequate or the machinery for enforcing the remedy is a complete machinery and similar questions may not be of much importance in such a case as this.

The Supreme Court in The Pabbojan Tea Co. Ltd., etc. Vs. The Deputy Commissioner, Lakhimpur, etc., considered the question of civil court''s jurisdiction in a suit by employer challenging the correctness of the decision given by the authority u/s 20 of the Minimum Wages Act as to the applicability of the Notification under that Act to certain classes of workers. In that decision the Supreme Court held as follows :

On an analysis of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act, (2) There is no provision for appeal or revision from the direction of the authority given under S. 20 (3) of the Act; and (3) The authority acting under S. 20 (3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our finding as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain the suits.

The circumstances enumerated therein or like circumstances do not exist in this case and therefore that decision seems to be not applicable to the facts of this case.

Then it was contended that the provision u/s 17 (2) of the Act is no remedy at all, unlike the provisions in the Minimum Wages Act considered in the above case. It is not sufficient or adequate. Machinery provided for enforcing this remedy is incomplete and as such the civil court''s jurisdiction is not barred. The Supreme Court has considered most of these objections in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, while considering the principles applicable to jurisdiction of civil court in relation to industrial disputes. In paragraph 13 of the judgment the Supreme Court considered the contention that the remedy provided under that Act is no remedy in the eye of law; and the further contention that even if the civil court had no jurisdiction to entertain a suit for enforcement of a right created under the Act, the civil court could pass an order or decree for injunction to prevent the threatened injury on breach of the right. After referring to certain earlier decisions, the Supreme Court observed as follows in paragraph 14 of the judgment;

But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government u/s 10 (1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal.

In Paragraph 15 of the judgment, the Supreme Court considered the Second contention that even if a suit could not lie in a civil court for enforcement of the right, still the remedy of injunction by a suit was not lost, and observed as follows;

In India u/s 9 of Code, the Courts have subject to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There are no different systems of civil courts for enforcement of different kinds of rights. In the instant case taking cognizance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly barred. But if it relates to the enforcement of a right created under the Act, as stated above, by necessary intendment, the jurisdiction of the Civil Courts is barred. That being so, in India, it is barred for all purposes, except in regard to matters which will be alluded to hereinafter. x x x It will bear repetition to say that the jurisdiction of the Civil Court in India is limited to cases in which there is a right at law, that is to say, a right to be pursued in such Court.

Later on the Supreme Court noticed that a suit instituted in a civil court to challenge the decision of the taxing authorities is quite distinct and different from the one which is within their exclusive jurisdiction. The issues in the two proceedings are different and exclusive in their respective spheres. After referring to the decisions in Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, = Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, and Kamala Mills Ltd. Vs. State of Bombay, = Kamala Mills Ltd. Vs. State of Bombay, and certain other decisions, the Supreme Court summed up the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute, as follows;

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.

As noticed above, section-108 (f) of the Transfer of Property Act does not provide a general remedy and as such the remedy u/s 17 (2) of the Act appears to be the only remedy against the landlord Therefore the principles mentioned in 3 and 4 above appear to be applicable under the circumstances of this case.

The counsel appearing for the landlord contended that the suit is filed by the landlord and the defendant-tenant is not entitled to file a petition for reliefs against him in that suit. The learned counsel for the defendant submitted that the prayer is in the nature of an injunction against the plaintiff and the defendant is entitled to maintain such a petition. In support of this position the learned counsel relied on rulings reported in Varghese v. Thomas (1956 K. L. T. 615) and Suganda Bai v. Sulu Bai (A. I. R. 1975 Karnataka 137). In the first case Varadaraja Iyengar J. relied on the decision in Collison v. Warrant (1901) I Ch. 812, and held that there can be, no doubt that in particular circumstances the court is entitled to grant injunction against the plaintiff if the defendants claim to relief arose out of the plaintiff''s cause of action or was incidental to it. In the second case, Govinda Bhat C. J. has also held so relying on the same English decision as well as another decision. In this case, the plaintiff prays for an injunction restraining the defendant from doing the repairs. etc. Under the circumstances, the nature of injunction sought by the defendant arises out of the plaintiff''s cause of action and is incidental to it and therefore he can ask for a temporary injunction against the plaintiff and therefore the petition is maintainable.

The learned counsel for the landlord also placed reliance on the rulings reported in Sawan Ram Vs. Gobinda Ram and Another, where a Full Bench of the Punjab and Haryana High Court considered the jurisdiction of the civil courts over matters covered by the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973, and held that section 13 of that Act relating to eviction of tenants excludes on the substantive aspect the general law of the tenant-landlord relationship and on the procedural aspect bars the forum of the ordinary run of the civil courts. No doubt in paragraph 5 of the judgment it is mentioned that it was not disputed that the Haryana Act is a complete code, the principles enunciated therein are equally applicable in this case also notwithstanding the contention of the tenant in this case that section 17(2) of the Kerala Act is not a complete code. Reliance was also placed on Behari and Another Vs. Kunjar Lal, and Doraipandi Konar Vs. P. Sundara Pathar, by the landlord to contend that the tenant has to take recourse to the provisions of the special enactment and not on the general provisions under the Transfer of Property Act if the landlord is not carrying out the repairs of the building. In these cases also the learned counsel for the tenant pointed out that the enactments considered are complete codes, unlike the Kerala Act. However it may be pointed out that section 22 of the Madras Act which was discussed in the latter decision is almost similar to sec. 17 (2) of the Kerala Act. I am in respectful agreement with the principles enunciated in the above rulings.

The landlord''s learned counsel showed me a copy of the petition for eviction filed before the Rent Control Court, Ettumanoor, by the landlord on the ground of reconstruction u/s 11 (4) (iv) of the Act. The number of the petition is R. C. O. P. No. 12/84. He has also stated that the first hearing of that petition is on 30-11-1984. According to the learned counsel for the landlord, the tenant is attempting to have the repairs done urgently in order that the landlord''s petition for reconstruction may be defeated. From the above discussion it is clear that the order of the lower court directing the landlord to repair the building is liable to be set aside. It may be also noticed that in case the landlord reconstructs the building the tenant shall have the first option under the third proviso to section 11 (4) (iv) of the Act to have the reconstructed building allotted to him.

The result is, this civil revision petition is allowed and the order of the lower court is set aside. No order as to costs.