Sudhir Narain Agarwal, J. - (1.) THIS writ petition is directed against the order dated 12th March, 1993, passed by respondent No. 1, allowing the Misc. Appeal and permitting respondent No. 3 to make repairs of the roof of the accommodation in its possession. The facts in brief are that M/s. Panchoo Gopal Karmakar and Sons, respondent No. 3 is the tenant of a shop on the ground floor portion of premises No. 76/157 Halsi Road, Kanpur. The petitioner is admittedly landlord of the said building. He moved an application before the City Magistrate, Kanpur Nagar under Section 133 Cr.P.C., for demolition of the building in question on the allegation that it is in a dilapidated condition and likely to fall at any time and thereby may cause injury to the persons who are living in the building or carrying on business in the neighborhood or any person passing through that way. Respondent No. 3 filed suit No. 1858 of 1992 in the Court of Munsif Kanpur Nagar for restraining the landlord -petitioner from damaging the property in question. He also filed an application for interim injunction permitting him to make necessary repairs in the tenanted portion of the building. The petitioner filed an objection stating that the proceedings under Section 133 Cr.P.C., were pending and the building was in a dilapidated condition which required total demolition and it could not be repaired. One of the objections was that the suit was not maintainable and the petitioner could get the relief by moving "application under Section 28 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Munsif appointed an Advocate Commissioner to inspect the premises and to submit a report regarding its condition. The Advocate Commissioner inspected the premises and submitted a report and gave the details regarding nature of the accommodation in question. He found that the roof was damaged on account of which there was leakage of water. He was of the opinion that the roof could be repaired. The trial court after considering the objection of the landlord took the view that the tenant could move an application under Section 28 of the Act for making necessary repairs and there is alternative remedy available to him. The injunction application was not maintainable. He rejected the injunction application by order dated 3rd October, 1992.
(2.) RESPONDENT No. 3 filed appeal against the said order and the Appellate Court allowed the appeal holding that in the circumstances of the case the Court had jurisdiction for permitting the tenant to make repairs of the roof at his own cost and he passed the order accordingly. Learned counsel for the petitioner urged that the tenant could have filed application under Section 28 of the Act and as alternative remedy was available the suit for injunction was not the proper remedy and the Court should have refused to grant injunction as it is barred under Section 41(h) of the Specific Relief Act. It is always open to a tenant to move an application under Section 28 of the Act for making necessary repairs and compelling the landlord to make the repairs and on such application being made the landlord can be directed to make repairs and if the cost exceeds two months rent, he may be entitled to enhancement of the rent on the basis of the expenses incurred by him in making necessary repairs in pursuance of the order of the Court. In case he incurs the expenses, the rent may be ascertained on the basis of the provisions contained in Section 6 of the Act.
(3.) IN the present case, it was not the case of the landlord that he was prepared to make the repairs. He filed objection before the court below stating that the accommodation should be demolished and for that purpose he had filed an application under Section 133 Cr.P.C. It was never his plea that he was prepared to make the necessary repairs. He was insisting that the accommodation should be demolished. The Commissioner was appointed and he found that the roof can be repaired.;