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 tenant doing urgent repairs without issuing notice to landlord amounts to additions and alteration of permanent nature?

 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.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3866 of 1991

Decided On: 08.08.2005

Najama Gulab Bagwan  Vs. Laxmibai

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2006(1) MHLJ 273, 2006(3) BomCR 474

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Whether court should accept undertaking given by tenants that they are residing in dilapidated building at their own risk?

 First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.


(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain

the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is

contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay

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When tenant can not be evicted from tenanted premises on ground of non user of premises?

Thus it becomes clear from the observations of the Supreme Court quoted above, that the liability of the tenant to pay rent is linked to his enjoyment of the demised premises. In the present case the tenant-petitioner has been deprived of the enjoyment of the entire premises only due to the conduct and attitude of the landlord and therefore, in my opinion, the tenant's liability to pay the entire rent would stand suspended from the date from which he became unable to use and enjoy the tenanted premises. Bare perusal of Section 13(1)(k) of the Act makes it clear that if there is reasonable cause for not using the tenanted premises then a decree of eviction cannot be passed. In the present case there was definitely a reasonable cause for the tenant not to use the tenanted premises in the circumstances referred to above. So far as a decree under Clause (1) of Section 13(1) is concerned it contemplates the tenant to secure suitable residence. Section 13(1)(1) contemplates a voluntary act on the part of the tenant. When the tenant is forced to shift his residence and especially when the conduct of the landlord himself is responsible for forcing the tenant to shift his residence in my opinion, the landlord would not be entitled to seek decree of eviction against the tenant under Clause 13(1)(1) of the Act. In my opinion, the Courts below have neither appreciated the evidence on record properly nor they have applied law properly. So far as the judgment of the Calcutta High Court in the case of Jatindra Kumar Dass relied on by the learned Counsel for the respondents is concerned, in my opinion, the judgement does not consider the Judgement of the Supreme Court in Surendra Nath Bibra 's case referred to above. In any case the perusal of paragraph IS of that Judgement shows that ultimately the Court in that case found that there is no liability on the landlord to repair the tenanted premises and therefore, the tenant was not justified in suspending the payment of rent.

6. The learned Counsel for the respondents by relying on the provisions of Section 10(D) of the Act, contended that the tenant had a remedy of getting the premises repaired. But in my opinion, it is not the question of tenant's having a remedy to get the premises repaired. The question is. the landlord entitled to a decree of eviction against the tenant. The tenant is deprived of the enjoyment of the property by a conduct which is attributable directly to the landlord and therefore there occurs suspension of the liability of the tenant to pay the rent. In my opinion, the tenant had done all within his powers, namely, issuing notice to the landlord to carry out repairs, offering to carry out repairs himself and moving the authorities of the Pune Municipal Corporation. But it is only because of the adamant attitude adopted by the landlord, that repairs could not be carried out. At this stage, now the landlord cannot turn around and say that despite his refusal and his attitude, the tenant could have on his own done the repairs. In my opinions the Courts below were not justified in passing the decree of eviction against the petitioner-tenant. It is to be seen that Section 23(1) casts a duty on the landlord to keep the premises in good and tenantable repair. The landlord committed breach of this statutory duty imposed on him. Sub-section 2 of Section 23. enables the tenant to carry out the repairs, after giving notice to the landlord, The tenant in this case, issued necessary notice to the landlord and then wanted to carry out the repairs, but the landlord did not permit him to do so. This attitude was adopted by the landlord, obviously, to force the tenant to leave the suit premises. Now, in my opinion, to pass a decree in favour of the landlord, on the ground that the tenant has not paid rent for the period during which he could not have occupied the suit premises and also on the ground that he did not continue In occupy the premises and sought shelter elsewhere, would amount to allowing the landlord to take advantage of his own wrong.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 67 of 1983

Decided On: 27.02.1997

 Gopal Dattaraya Chapahlkar  Vs. Govind Yeshwant Borkar and Ors.

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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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