MILAP CHANDRA, J. - (1.) THESE revision petitions have been filed by the plaintiff-petitioners-tenants (here in after to be called the petitioners) against the similar orders of the learned District Judge, Pali dated December 16, 1989 dismissing the appeals of the plaintiff-petitioners and affirming the orders of the learned Munsif, Pali dated May 27, 1987 by which he had dismissed the applications of the petitioners moved under Order 39 Rules 1 and 2. C. P. C. praying that the defendant non-petitioner-landlord (hereinafter to be called 'the non-petitioner) be restrained from obstructing them to carry out repairs in the demised shops.
(2.) THE review petitions have been filed against my common order dated October 20, 1989 by which the revision petitions No. 540, 541 and 790 of the year 1989 have been dismissed. THEse revisions were filed against the similar orders of the learned Additional Civil Judge No. 1, Pali (where these suits were pending) dated September 21 1989, directing the tenants to remove their articles from the demised shops. As these revisions and review petitions arise out of three similar cases, they are being disposed of by this order. The facts of the cases may be summarised thus. The petitioners are in possession and occupation of three shops situated at Ruyee Katla, Pali as tenants of the non-petitioner. On March 18, 1987, communal riots broke out in Pali. Shutters were removed from the shops, articles were taken away therefrom and fire was set up in them. As a result thereof, their roofs fell down and walls got damaged. The non-petitioner served notice upon the petitioners on April 3, 1987 that he would remove the 'malwa' and also the articles lying hidden thereunder. The petitioner filed suits for injunction against the non-petitioner restraining him from dispossessing them and also from obstructing them in repairing the demised shops to restore their position as existed prior to the communal riots. Along with the suits, applications were moved under Order 39 Rules 1 and 2, C. P. C. After hearing the parties, the learned trial court directed the parties to maintain the status quo of the suit shops and also directed the non-petitioner to remove the 'malwa' from the suit shops within a month failing which the petitioners would be entitled to remove the same by its orders dated May 27, 1987. It was also observed that the petitioners were free to obtain any order from competent authority under section 12, Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act' ). Against these orders, appeals were filed. The learned District Judge dismissed these appeals by his similar orders dated December 16, 1989 against which present revision petitions have been filed. On September 21, 1989, on the applications of the non- petitioner the trial court directed the petitioners to demolish the construction effected by them in the demised shops and to restore the condition which existed just prior to the institution of the suit. Against these orders, the said revision petitions No. 540, 541 and 790 of 1989 were filed and they were dismissed by me on October 20, 1989. It has been contended by the learned counsel for the petitioners that the learned lower courts have acted with material irregularity in the exercise of their jurisdiction in dismissing the applications of the petitioners moved under Order 39 Rules 1 and 2, C. P. C. as under Section 20 of the Act and under Clause (f) of Section 108, Transfer of Property Act, the non-petitioner was bound to keep the demised shops in good repairs, service of notice upon the non-petitioner was not at all necessary as the latter, by serving notice upon petitioners for removing 'malwa', by not repairing the demised shops and by filing suits for ejectment on the ground of the demised shops becoming unfit and unsafe for human habitation, made his intention clear. He also contended that no notice in writing is necessary under these provisions. He lastly contended that the provisions of clause (p) of Section 108. Transfer of Property Act are applicable for agricultural leases. He relied upon Ishwar Vs. Sudarshan (1 ). and Naik Kalidas Motiram vs. Meena Ben (2 ). In reply, it has been contended by the learned counsel for the non-petitioner that neither the revision petitions nor the review petitions are maintainable as the scope of the provisions of section 115 and Order 17 Rule 1, C. P. C. is very limited, no illegality or irregularity in the exercise of jurisdiction has been committed by the lower courts while passing the impugned orders, the provisions of Section 20 of the Act and section 108 (f) of the Transfer of Property Act simply require a landlord to keep the demised premises in good and tenantable condition and they do not require their reconstruction, in the said fire all the three demised shops were gutted, their roofs and walls fell down, electric fittings and wooden doors were burnt away, as such they became unfit and unsafe for human habitation, on this ground suits for ejectment have been filed and grant of injunction would adversely effect the ejectment suits. He relied upon Hindustan Aeronautics v. Ajit Prasad (3), Sita Ram vs. R. M. Muni (4), and Kurion vs. Jacob (5 ). Admittedly, the relationship of landlord and tenant is still existing in between the parties. It is well proved from the report of the Commissioner that the roof of the suit shops fell down, walls were damaged and doors were burnt away in the said fire and the petitioners had put tin sheets on the roofs and fitted new doors in the suit shops.
(3.) THE first question for consideration is whether the petitioners have a right to carry out repairs in the suit shops after the said fire had taken place in them. Section 20 of the Act runs as under :- 20. Landlord's duty to keep premises in good repair. (1) THE landlord shall be bound to keep in good and tenantable repair any premises to which this Act applies except in cases where the tenant has undertaken by agreement to keep premises in repair. (2) If the landlord neglects to make within a reasonable time after notice, any repairs which he is bound to make under sub- section (1), the tenant may make the same himself, and deduct the expenses of such repairs from the rent, or otherwise recover it from the landlord; Provided that the amount so deducted or recoverable in any year shall not exceed one twelth of the rent payable by the tenant for that year. " Sub section (2) does not require service of a notice in writing by a tenant upon his landlord. If the landlord has notice from any source about the condition of the demised premises, he is bound to carry out necessary repairs as required under sub-section (1 ). Clause (f) of section 108, Transfer of Property Act runs as under:- " (f) If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor. " This clause also does not require that a lessee is to serve a notice in writing upon his lessor. Section 3 of the Transfer of Property Act enshrines that a person is said to have notice of a fact which he actually knows that fact or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Section 28 of the Act says that the provisions of the Act shall be in addition to and not derogatory of, any other law on the subject for the time being in force. Thus the learned lower courts have acte4 with material irregularity in exercising their jurisdiction to hold that the petitioners have no right to carry out the repairs in the suit shops as they did not serve any notice upon the non-petitioner prior to filling of the suits. THEse provisions leave no doubt that the non-petitioner had a duty to carry out necessary repairs in the suit shops. He not only failed in his duty but obtained an order from the courts restraining the petitioners in carrying them out. Clause (m) of section 108, Transfer of Property Act requires that the lessee is bound to keep the demised property in as good condition as it was in at the time when he was put in possession. The contention of the learned counsel for the non petitioner that the provisions of section 13 (1) of the Act impliedly prohibits a tenant to carry out any construction in the demised shops is devoid of force for more than one reasons. Clause (c) of sub-section (1) of section 13 of the Act runs as under :-- 13. Eviction of tenants : (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree or make any order, in favour of a landlord whether in execution of a. decree or otherwise, on the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied.- (a) x x x (b) x x (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof. " Firstly, this clause does not speak of repairs. It is concerned with constructions. Secondly, all types of constructions do not attract this clause. Only those constructions will attract this clause which go to materially alter the premises or is likely to dominion its value. Thirdly, comparison is required to be made with the condition of the demised shops as it was at the time of the commencement of the tenancy (not as it was after the said fire had taken place) with the conditions after construction. Reliance was also placed on clause (k) of sub-section (1) of section 13 of the Act in support of the contention that the petitioner cannot be permitted to carry out construction/repairs as it would impair the right of the non-petitioner which has accrued to him and would adversely affect his suits for ejectment based on this ground. This clause is not attracted in a case which the demised premises becomes unfit and unsafe on account of the failure of the landlord to carry out the repairs which he is bound-to carry out under law. Be that as it may, the subject matter in the present revision petitions is the petitioner's suits for injunction and not the suits of the non-petitioner for ejectment. In view of these facts, circumstances and law, the petitioners are entitled to carry out repairs in the suit shops at their own expenses. 10 During the arguments before the learned District Judge, the learned counsel for the non-petitioner contended :- *********** The next question for consideration is whether this work fell within repairs or re-construction. There is a fundamental difference between repair and re-construction. The test for determining whether a thing is a repair or not is to see whether the act actually done is replacement of a defective part or the replacement of the entire or substantial part or the demised premises. ;