- (1.) The petitioner is a landlord of premises No. 124/326 B, Govind Nagar, Kanpur. The third respondent is the tenant of the building. The petitioner filed a suit for injunction in the Court of the Civil Judge (J.D.), Kanpur Nagar for restraining the defendant from constructing a roof in the room in the tenancy of the respondent. The application for temporary injunction was also filed by the petitioner. The trial Court allowed the application and restrained the tenant from reconstructing the roof making it clear, however, that the injunction would not come in the way of orders being passed under Section 28 of U. P. Act No. 13 of 1972. The appellate Court has allowed the appeal of the tenant third respondent and has dismissed the application for temporary injunction. The appellate Court has relied upon the provisions of Section 108(m) of the Transfer of Property Act for holding that the lessee is bound to keep the tenanted property in good condition as it was at the time when he was put into possession. Reliance has been placed by the appellate Court upon the decision in 1994 All CJ 1140 Sri Niwas v. Additional District Judge and upon certain other cases.
(2.) Counsel for the petitioner submitted that the case of Sri Niwas (Supra) was not correctly decided as the provisions of U. P. Act No. 13 of 1972 have in view of Section 38 of that Act overriding effect upon the provisions of Transfer of Property Act. Section 108(m) of the Transfer of Property Act is quoted below :- "(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as, it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lesser and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition'; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;"
(3.) The tenant is bound to keep the property in as good a condition as it was at the time when he was put into possession. The right of the tenant to maintain the premises cannot be denied in view of the provisions of Section 108(m) of the Transfer of Property Act. Section 38 of U. P. Act No. 13 of 1972, however, gives overriding effect to the provisions of U. P. Act No. 13 of 1972. The contention of the counsel for the petitioner is that the remedy of the tenant is to file an application under Section 28 of U. P. Act No. 13 of 1972. The scheme of the provisions of Sections 26, 28 and 38 of U. P. Act No. 13 of 1972 may, therefore, be examined. Section 26(2) of U. P. Act 13 of 1972 imposes an obligation upon the landlord to keep the building under tenancy wind proof and waterproof and to carry out periodical white washing and repairs. Sub-section (3) of Section 26 provides subject to contract to the contrary in writing that no tenant shall demolish any improvements effected by him in the building. Section 28 provides the procedure to be followed by the tenant for effecting repairs. In case of minor repairs, the tenant may give notice to the landlord to carry out the repairs and if the landlord fails to comply with the notice the tenant may under sub-section (3) of Section 28 himself carry out repairs at a cost not exceeding 2 months rent in a year and deduct the amount from the rent and to furnish the account of the expenditure to the landlord. In case of major repairs, the cost of which is likely to exceed the amount of two months rent, the tenant may if the landlord fails to comply with the notice apply to the prescribed authority under Section 28(4) and the prescribed authority may under Section 28 sub-section (5) require the landlord to carry out the requisite major repairs and on his failure to do so permit the petitioner to carry out those repairs at a cost which shall not be more than 2 years' rent. Where the tenant carries out major repairs, he is required to furnish an account of expenses to the prescribed authority which shall certify the amount recoverable by the tenant and such amount can be adjusted against the rent in monthly instalment not exceeding 25% of one month's rent.;