1. This is a petition against the order dated 19.9.2011 passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Appeal from Order No.61 of 2010 whereby the order passed by Small Causes Court No.13, Ahmedabad below Exhs.6 and 18 dated 4.9.2010 in H.R.P.C.S.No.1383 of 2010 is confirmed.
2. The plaintiff is the respondent herein who is the landlord of the premises in question, while the original defendants are the petitioners herein who are tenants in that building. The plaintiff filed the suit seeking ad-interim injunction restraining the defendants - petitioners from carrying out any type of repair works and also from making any construction of permanent nature with bricks, cements, sands and also from constructing the terrace in the suit premises.
3. After the notice, the defendants put appearance and filed the application Exh.18 seeking permission of the court to repair the suit property. Learned trial court, after taking into account the photographs placed along with the application and type of repair required to be made in the premises in question, allowed the application Exh.6 of the landlord and dismissed the application Exh.18 moved by the tenants - petitioners. This order has been confirmed by the Appellate Bench of the Small Causes Court, Ahmedabad and that is how, this petition has been preferred before this Court.
4. I have heard learned counsel for the petitioners and have gone through the file.
5. Learned counsel for the petitioners has laid emphasis on the point that both the courts below have ignored the fact that on the basis of the complaint made to Dariyapur Police Station, the matter was compromised and as per this compromise, after the repair, the rent will be increased to Rs.100/- and if the first floor is made in future, then the rent will be Rs.150/-. It is submitted that in view of this writing before the Police Station, the petitioners opened the roof of the premises in question for carrying out necessary repair works and the orders of the courts below restraining the petitioners from carrying out repair were likely to affect their interest.
6. I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioners.
7. As per the provisions of section 23 of the Bombay Rent Act, a tenant is entitled to repair the suit premises himself and deduct the expenses of such repairing from the rent when the notice is served upon the landlord by post or in any other manner by a tenant and landlord neglects to make any repair. From this section, it is apparent that the service of notice is precondition for initiating repair work in the rented premises. Both the courts below have taken into consideration the photographs placed on file which show that the roof of the house has already been removed by tenants before moving the application Exh.18 before the court seeking permission to carry out repair work. It will be relevant to mention here that Ahmedabad Municipal Corporation served the notice for carrying out repairing work in the premises in question. The procedure required for carrying out such repairing work has not been followed in this case. As per the requirement of the law, before initiating repairing work, the local authority has to give estimated cost for such repairing which is binding on the landlord and a tenant can recover this amount from the landlord after repairing work. In the present case, the tenants have failed to show that they have taken approval of the local authority and got estimated cost prepared before starting the repairing work. From the facts of this case, an irreparable loss is going to be caused to the landlord if the tenants are allowed to carry out repairing work without following procedure prescribed under the law.
8. In view of the above discussion, I do not find any irregularity or illegality in the orders impugned in the petition. Resultantly, both the orders passed by the trial court as well as appellate court are confirmed and the present petition is dismissed. However, the parties shall bear their own cost.
9. It is needless to say that any observation made by this Court while passing this order will not affect the merit of the case pending before the trial Court.
(Mohinder Pal,J) pathan Top