When can the court permit tenant to repair tenanted premises even if he has not given written notice to the landlord to repair premises?

 The learned counsel for the petitioner has asserted that giving of a notice in writing is also an equally mandatory part of the cause of action and, therefore, the same stood exhausted on the filing of the earlier petition by the respondent/tenant. He submits that without serving a fresh notice, the respondent could not have maintained a fresh petition before the learned Controller.{Para 13}

14. I am unable to agree with the submission made by the learned counsel for the petitioner. As noticed hereinabove, the purpose of a

notice under Section 44(3) of the Act is to put the landlord to notice that the tenanted premises are not in a habitable or usable state and require repairs. Though normally, the tenant is to give such a notice to the landlord before filing of the petition, the petition itself can be considered as a notice to the landlord of such state of affairs. In this regard, it is to be noted that the learned Controller can pass an order on a petition under Section 44(3) of the Act only after granting an opportunity of hearing to the landlord. In such hearing, the landlord can accept the contents of the petition with respect to the state of the tenanted premises and offer to carry out the repairs; or can dispute the contention of the tenant regarding the tenanted premises being un-inhabitable or unusable; or can dispute the estimate of cost required for the necessary repairs. The non-service of notice by the tenant prior to the filing of the petition does not in any manner, therefore, cause prejudice to the landlord. The service of prior notice may only be for the benefit of the tenant as in case the landlord agrees to the notice, the tenant may not be burdened with moving the learned Controller for seeking appropriate relief.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 06.04.2021

 CM(M) 427/2020 & CM No.20355/2020

SURAJ PRAKASH PAHWA  Vs NAND LAL 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

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Whether landlord can file eviction suit on ground of bonafide need and for repairing of tenanted premises simultaneously?

In view of the foregoing discussion, we hold that in a case where eviction has been sought both on the grounds of bona fide requirement by the landlord for occupation of the premises for himself or any member of his family, as required under Section 12(1)(e) of the Act and for carrying out repairs, as enumerated under Section 12(1)(g) of the Act, the court is required to consider both the grounds on merits, as they are mutually exclusive, but not destructive of each other. In case decree for eviction is passed only under Clause (e), the landlord would be entitled to move into the premises without or after making any repairs and the provisions of Section 17 of the Act would apply. But if the same is passed under Clause (g) alone, the provisions of Section 18 would apply. However, in case decree is passed under Clauses (e) and (g) both, in that eventuality, the same shall be deemed to have been passed mainly under Clause (e), as such the provisions of Section 17 of the Act would alone apply and not Section 18 thereof.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2876 of 2001

Decided On: 08.04.2009

Kusum Devi  Vs.  Mohan Lal (Dead) by L.Rs.

Hon'ble Judges/Coram:

B.N. Agrawal and G.S. Singhvi, JJ.

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Whether tenant is liable to be evicted on ground that tenanted building is in dilapidated condition?

 On the other hand his own case as emerged from the perusal of his own statement and that of PW2 the expert witness only the repair of the building is required. Such even is the case of the respondents-tenants also as according to them the repair of the building is due since long as the petitioner-landlord is not repairing the same annually. According to them, in case the repair of the building is required they are ready to cooperate with him.

14. Being so, the petitioner-landlord has failed to make out a case that the building is in dilapidated condition and that the same is bona fidely required for reconstruction and rebuilding. Learned Lower Appellate Court, as such, has erred in law and also on facts while holding to the contrary. Otherwise also, the judgment passed by learned lower Appellate Court based upon the happening of certain events i.e. the sanction of the plan by the competent authority and on consideration of the undertaking, if any, given by Shri M.P. Gupta aforesaid qua vacation of top floor of the building is not executable. As a matter of fact, petitioner-landlord if need be may carryout repairs of the building in question and for that the respondents-tenants are also ready and willing to cooperate with him.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CR No. 27 of 2006

Decided On: 26.07.2018

Mansa Devi  Vs. Krishan Pal Sood and Ors.

Hon'ble Judges/Coram:

Dharam Chand Chaudhary, J.

Citation: AIR 2018(NOC) 858 HP

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When landlord can not seek eviction decree on ground of addition and alteration of permanent nature?

In the first ruling aforesaid it was observed by Mr. Justice Chandrachud that sub-section (1) of section 23 requires the landlord to keep the premises in good and tenantable repair and that it was indisputable and abundantly clear from the conduct of the landlords preceding the notice of demolition, that the landlords had failed to keep the premises in good and tenantable repair. What the tenants proposed to do was to carry out such repairs to the property as will put the premises in good and tenantable repair as required by sub-section (1) of section 23 of the Rent Act. In the second ruling aforesaid, it was observed by Mr. Justice Kantawala as follows :---

"Under this clause section 13(1)(b), in order to get the decree for recovery of possession the landlord has to establish that a tenant without his written consent created a permanent structure on the demised premises. Such permanent structure should be on the demised premises. It presupposes that it must be in addition to or different from the original demised premises. If by any reason the demised premises are damaged or destroyed and under any provisions of law such demised premises are restored to their original stage or condition, it cannot be said that a permanent structure had been erected on the demised premises. It is implicit in the language of this clause that the permanent structure referred to in this clause must be in addition to the demised premises."

Proceeding further and referring to the provisions of section 23 of the Rent Act it was observed as follows :

"Under this section the landlord is under an obligation to keep the demised premises in good and tenantable repair. The section further provides that when a landlord neglects to carry out such repairs within a reasonable time after a notice is served upon him the tenant may himself carry out such repairs and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord. The provisions of this section are, therefore, also to be taken into account while construing the provisions of section 13(1)(b) of the Act.

Under section 10-D(4) of the Act, in a given case with the approval of the local authority a tenant may execute the work of additions, alterations, improvements and amenities on the demised premises upon the failure of the landlord to do so. Such execution of the work cannot be availed of by a landlord as a ground for ejecting the tenant under section 13(1)(b) of the Act. "Similarly under section 23 of the Act, upon the failure of the landlord to keep the demised premises in a good and tenantable repair, it is open to a tenant to carry out the repairs so as to keep the demised premises in good and tenantable repairs."

IN THE HIGH COURT OF BOMBAY

Special Civil Application No. 3217 of 1978

Decided On: 07.03.1980

Decided On: 10.03.1980

 Balmukund Narsingdas Somani  Vs. Prakash Jagdish Ambali and Ors.

Hon'ble Judges/Coram:

S.C. Pratap, J.

Citation: 1980 Bom CR 633

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Whether tenant can make repairs of tenanted premises without written intimation and permission of landlord?

 Section 23 of the Act definitely imposes a duty on the landlord to keep the premises in a good condition. He is, therefore, under an obligation to make necessary repairs. But, in case of failure to keep the premises in good condition, there must be a notice or intimation by the tenant to point but the necessity of any such urgent repairs. If there is no such notice issued and the tenant on his own, unilaterally contract without written intimation and permission of the landlord, such unauthorised permanent construction, in that case, definitely falls within the clutches of the mandate of Section 13(1)(b) read with Section 23 of the Act. This breach, therefore, raises no doubt that the landlord, in such circumstances, is entitled to claim possession of the premises [Shadisingh (supra)]. As rightly painted out and as observed by the Courts below that the tenant had no right to get the premises altered or reconstructed in such fashion. There is no such provision available under the Bombay Rent Act which compels the landlord  to reconstruct or rebuild in each and every circumstances, except to keep the premises in good tenantable repair. The tenant cannot unauthorisedly make permanent construct ion without written permission from the land lord.

Bombay High Court

Smt. Najama Gulab Bagwan And Ors. vs Smt. Laxmibai W/O Rangildas Gujar ... on 8 August, 2005

Equivalent citations: 2006 (3) BomCR 474, 2006 (1) MhLj 273

Bench: A V Mohta

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When lessee is bound to repair tenanted premises?

 The Lessee hereby covenants with Lessor:

(i) and (ii) ....

(iii) That he will keep the premises in as good condition as the same are now in (reasonable wear and tear, and destruction or damage by fire, riots, insurrection, act of God or tempest excepted) and (except as aforesaid) deliver them up at the determination of the tenancy to the Lessor....

7. On a plain reading of the afore said Clause it is impossible to accept the High Court's view that it merely amounts to a covenant for careful and reasonable use of the property on the part of the tenant and nothing more. The Clause, in our view, imposes upon the tenant two obligations, namely, (a) to keep the property in repair from time to time during the term and (b) to restore it in repair, i.e. in the same good condition as he received it, at the end of the term. The word "keep" occurring in the Clause clearly refers to the state in which the property is to be maintained and obliges the tenant to maintain it in the same condition at all times during the whole term, for, at the determination of the term he is to deliver it up in the same condition in which he found it when he took it on lease. In other words, the Clause clearly imposes an obligation on the tenant to do such repairs as are necessary to keep the property in good condition and tenantable repair. The parenthetical Clause suggests that deterioration or damage directly attributable to reasonable wear and tear, fire, riot, insurrection etc. will, however, be the responsibility of the Lessor. A covenant of this type contained in a Lease has always been construed by judicial decisions as casting a duty on the tenant to prevent permissive waste by carrying out such repairs as are necessary to keep and maintain the property in good condition and tenant-able repair during the whole term and restore it to the Lessor in the same condition at the end of the term. If necessary reference can be made to two English decisions, namely, Luxmore v. Robson (1818) 1 B & A1d 584; Lurcott v. Wakely & Wheeler, (1911) 1 KB 905, and one Indian decision, namely, Doongersey v. Keshavji Meghji 19 Bom LR 878 :AIR 1917 Bom 34 in that behalf. On proper construction of the Clause, therefore, we are clearly of the view that a duty to keep the property in good condition and tenantable repair was cast on the respondents under the lease.

8. If that be the position, then clearly Section 23(1) of the Bombay Rent Act, 1947, would not be attracted, for, under that provision the duty to keep the premises in good and tenantable repair is cast on the landlord in the absence of an agreement to the contrary by the tenant. Moreover, such a term in the Lease would clearly be consistent with the provisions of the said Act. In these circumstances, since a finding of fact has been recorded by both the lower courts on evidence that the deterioration and damage caused to the suit property was not on account of natural or reasonable wear and tear but was due to the negligence in the up-keep and maintenance of the property on the part of the respondents, the respondents must be held to have committed a breach of the aforesaid term and the appellant would be entitled to recover possession of the property from the respondents under the latter part of Section 12(1) of the Bombay Rent Act, 1947. On this ground alone the Order of the High Court deserves to be set aside.

Supreme Court of India

Merwanji Nanabhoy Merchant ... vs Union Of India (Uoi) And Ors. on 20 February, 1979

Equivalent citations: AIR 1979 SC 1309, (1979) 4 SCC 734

Bench: A Sen, R Sarkaria, V Tulzapurkar

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Tenant can not repair rented property without knowledge and consent of landlord

Following the decision of the Supreme Court above, it has to be held that no notice under Section 106 need to be issued to the tenant before filing the petition for eviction and that is not a pre-requisite one. Even if the tenant carries out the repairs, it should be with knowledge and consent of the landlord for which Section 22 of the Act contemplates issue of notice to the tenant by the landlord as to making of necessary repairs of the building. In the absence of such notice, the tenant cannot carry out any repair and come forward to say that the rent could be adjusted in the case of repair.

Madras high court

K.A.Jaganathan vs S.Shanju on 9 December, 2009

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