LODHA, J. - (1.) THIS is a revision petition directed against the order of the Additional District Judge No. l, Jodhpur dated 15-2-1973 by which the defendant-petitioner's application dated 31-1-1973 for leave to amend his written statement was dismissed. A few facts relevant for the disposal of this revision may be stated as below : The plaintiff-nonpetitioner owns a Cinema known as Stadium Cinema in the city of Jodhpur. A lease of the said cinema was granted by the plaintiff to the defendant for a period of 3 years with effect from 26-1-1963. The lease deed was executed and signed by both the parties on 2-4-1964. The rent was settled at Rs 6101/-per month. On 10-1-1972 the plaintiff filed the present suit in the Court of District Judge, Jodhpur for ejectment of the defendant as well as for arrears of rent Rs. 1,42,852. 48 paisa upto 25-10-1971 and Rs. 37,161. 29 paisa by way of damages for use and occupation from 26-10-71 to the date of the suit, and thereafter at the rate of Rs. 16,000/- per month till delivery of possession. The suit was resisted by the defendant on a number of grounds which it is not necessary to narrate here. On the pleadings of the parties the trial court framed 24 issues. By his order dated 11-11-1972 the learned District Judge decided legal issues which were of a preliminary nature. Since the decision of some of these issues had gone against the defendant he filed a revision application to this Court which was registered as S. B. Civil Revision Petition No. 585 of 1972. The revision application was decided by the then Chief Justice Shri Jagat Narayan on 15-12-1972. The decision of the trial court on issues Nos. 19 and 20 was inter alia called into question in that revision petition. Since issues Nos. 19 and 20 have some bearing on the decision of the present revision application, it would be proper to reproduce those issues here. "19. Whether the defendant's claim for getting the amount of Rs. 1,74,103. 57 p. mentioned in part III of Schedule IT appended to his written statement (2) the amount of Rs. 1,23,531. 17 p. on account of losses (3) the amount of Rs. 4000. 00 on account of remission of one month's rent due to Air raids during Indo-Pak war of 1965 and (4) the amount Rs. 533. 6b on account of remission in rent due to riots during the last General Election from) 1-3-72 to 14-3-72 adjusted against the plaintiff's claim in this suit is one for set off? - Plaintiff 20. Whether the defendant can claim the adjustments of Rs. 1,74,102. 57p. , Rs. 1,23,531 17 p. Rs. 4,000. 00, and Rs. 533. 66 without payment of court fees in respect thereof.- Defendant. "
(2.) THE trial court held that no part of the claim put forward by the defendent can be decided unless court fee is paid as it amounts to set off within the meaning of O. 8, r. 6 C. P. C. Out of the amount of Rs. 1,74,102. 57 paisa the defendant pressed the revision application only with regard to the following four items : (a) Rs. 18571. 08 (b) Rs. 9046. 15 (c) Rs. 3000. 60 (d) Rs. 5625. 69 3. In connection with the afirsst two items reliance was placed on behalf of the defendant on sec. 101 (f) of the Transfer of Property Act and CI. 4 (x) (b) of the lease deed. It was, however, held that these two items cannot be claimed by the defendant without payment of court fee as they amount to a set off. As regards the other two items of Rs. 3000/- and Rs. 5625. 69 paisa this Court framed an additional issue numbered as 'a'. The last point contended on behalf of the defendant was that the defendant is entitled to a deduction as claimed in para 47 of his written statement on account of the fact that the possession over the whole of the premises was not delivered to him from the beginning and that the Administrator had agreed to allow Rs. 1374. 13 paisa on this amount. An additional issue marked 'p' was framed on this point also. After dismissal of that revision petition the defendant made an application on 18-1-1973 for leave to amend the written statement. This application was however withdrawn on 31-1-1973 and a second application which is the subject matter of the present revision petition was moved the same day. At this stage I cannot fail to point out that the learned counsel for the parties tonk considerable time in getting at the exact points on which amendment of the written statement was sought due to the fact that the application for amendment is a very lengthy document running into 18 pages stuffed with unnecessary details and arguments. The learned lower court has held that even if the amendment is allowed the defendant would not be entitled to suspension of rent which is the only underlying object behind the application for amendment. Consequently, it dismissed the application. The learned District Judge also held that the amendment sought was not necessary to resolve the real controversy between the parties. In this connection he has further observed that the facts sought to be introduced by the application for amendment already find place in the written statement. Learned counsel for the petitioner has urged that the amendment sought by the defendant does not change the nature of the case nor raises any inconsistent pleas but is only by way of supplying further and better particulars in respect of the allegations already made in the written statement. He has submitted that the defendant does not propose to submit any more documents in support of the amendment. He has also argued that the learned District Judge acted illegally and with malarial irregularity in exercise of his jurisdiction in judging the amendment on merits and in holding that the defendant would not succeed in his pleas even if the amendment was allowed. On the other hand the learned counsel for the respondent plaintiff has strenuously urged that the application for amendment is not bona fide, and has been made only with a view to prolong the case and thereby postpone the decree for ejectment. He has submitted that the amendment sought would amount to change of front and that the proposed amendment is useless and of no substance. In order to test the bonafides of the defendant in the matter learned counsel for the non-petitioner plaintiff made an offer that he would not oppose the application for amendment if the defendant agreed that the suit may be allowed to proceed with respect to the relief for ejectment. To this proposal the defendant-petitioner was however not agreeable. Now I may turn to the proposed amendment. The first three and half pages of the application for amendment relate to introductory facts. The proposed amendment is contained in para No. 5. The defendant seeks to add paras Nos. 41 to 51 to the written statement. In the main para 48 it has been alleged that there is common law warranty as well express warranty embodied in the lease deed that the building, installations, equipments etc. are in a fit condition and are also kept fit throughout the period of tenancy. Then it is pleaded in sub para (a) that the lessor was bound to disclose the material defects in the property with reference to the intended use of which the lessor was and the lessee was not aware and which the defendant could have discovered with ordinary care and further that it was the duty of the lessor to set them right. Under this heading various items such as (i) sound and projection-apparatus; (ii) electric fittings; etc. have been mentioned upto item (vii ). Then under sub-para (b) it has been pleaded that the plaintiff was not entitled to get rent from 26-1-1963 to 31-7-64 when the new sound and projection aparatus were installed and the defendant is entitled to abatement of rent of this entire period. It has been submitted on behalf of the defendant that this amendment is necessary to enable the defendant to take advantage of Sec. 108 (A) (a) of the Transfer of Property Act which lays down that the lessor is bound to disclose to the lessee any material defect in the property with reference to its intended use of which the former is and the latter is not aware and which the latter could not with ordinary care discover. . . It may be pointed out that in para 36 of the written statement the defendant has pleaded that the defendant was not willing to take the cinema house even after his tender was accepted, but the Administrator of the plaintiff assured the defendant that the house would be completely renovated and it was as a result of this representation that the defendant agreed to run the cinema and further that after the defendant had taken over the possession of the cinema, some repairs were carried out. In view of this averment in the written statement, it does not lie in the mouth of the defendant now to plead by way of amendment that the lessee was not aware of the material defects in the property which the lessor was bound to disclose. This would amount to change of the defendant's case. Moreover Cl. (A) (a) of sec. 108 of the Transfer of Property Act is subject to a contract or legal usage to the contrary. Learned counsel for the plaintiff was at pains to point out that there was no common law warranty or express warranty as mentioned in the proposed amended para 48. In this connection reliance was placed on the following lines contained in para 1233 of Halsbury's Laws of England : Third Edition, volume 23, at page 562 : "in the absence of express stipulation (a), or of a statutory duty, the landlord is under no liability towards the tenant (b) to put the demised premises into repair at the commencement of the tenancy. "
(3.) THERE is force in the nonpetitioner's contention that apart from the express stipulation or a statutory duty, the landlord is under no liability under common law to put the demised premises into repairs. However, I do not consider it necessary to pursue this point further as in my opinion para 48 would give rise to a change of front in the defence which cannot be allowed. The defendant cannot be allowed thus to change his case. Coming to para 49 it has been stated that the defendant is entitled to reduction in rent on account of breach of the covenants committed by the plaintiff as set out in main para 48. Para 49 pertains to the following three amounts spent for repairs said to have been carried out by the defendant : (i) Rs. 20570. 85 paisa; (ii) Rs. 18571. 88 paisa; (iii) Rs. 9946. 15 paisa. It is submitted that this amendment has become necessary in view of the observations made by this Court in the decision dated 15-12-72 in S. B. Civil Revision Petition No. 885/72. It was held therein that no reference was made before the trial court to sec. 108 (f) of the Transfer of Property Act, nor it had been pleaded that any notice was issued to the plaintiff as prescribed under this clause and further that sec. 108 of the Transfer of Property Act is subject to a contract to the contrary. As regards the contract it was held that it had not been pleaded that the damage which was got repaired was attributable to fair wear and tear, nor it had been pleaded that the lessee submitted any statement of required repairs together with the estimate for the lessor's approval. Learned counsel for the petitioner has argued that although the documents which go to make out a case for the defendant under sec. 108 (f) have already been produced with the original statement and the basic facts laying down the foundation for the defendant's plea under the aforesaid provision have already been mentioned, but the pleadings are not clear. For instance, it is pointed out, that in para No. 44 of the written statement it has been mentioned that the defendant had to incur an expenditure of Rs. 18,571. 08 paisa on account of repairs to the cinema building and that the aforesaid expenditure was incurred by the defendant under intimation to the plaintiff's Administrator. It is argued that these repairs were effected after notice to the lessor and now the defendant wants to allege the fact that the repairs were effected after notice to the lessor. This contention is, in my opinion, devoid of force. All clauses under sec. 108 are subject to a contract to the contrary. It has already been pointed out in the previous judgment of this Court dated 15-12-1972 that the rights of the parties in this respect will be governed by Cl. (4) (x) (b) of the lease deed and not by sec. 108 (f) of the Transfer of Property Act. The proposed amendment therefore cannot be allowed so as to bring the case under sec. 108 (f) of the Transfer of Property Act. Coming to Cl. 4 (x) (b) of the lease deed it was not pleaded in the original statement that the damage which was got repaired was attributable to fair wear and tear nor it can be pleaded that the lessee submitted any statement of repairs required together with an estimate for the lessor's approval before executing the repairs himself. It is conceded before me on behalf of the petitioner that the lessee has not put on record any statement of required repairs together with estimate for the lessor's approval which may have been submitted to the lessor before executing the repairs himself. A perusal of the letter dated 30-3-1965 marked Ex. A. 15 from the plaintiff to the defendant (admitted by the defendant) also goes to show that the plaintiff called upon the defendant to submit a proper estimate for the repairs of the electric wiring etc. in order to remove leakage of electric current. Para 49 of the proposed amended written statement pertains firstly to Rs. 20570. 89 paisa on account of electric repairs, repairs to motor pumps and sanitary repairs. Another item of this para of Rs. 18571. 08 paisa is in respect of painting, providing of fixtures to chairs, improvement of sanitary arrangement, repair to cooling plant, providing ceiling fans in auditorium and emergency lights. There is yet another item of Rs. 90s6. 15 alleged to have been spent by the defendant by way of repairs to furniture, theatre, cooling plant and electric fittings. In respect of these items the defendant has alleged in the proposed amendment that they were attributable to fair wear and tear. Learned counsel for the nonpetitioner plaintiff has however urged that under Cl. (l) (d) of the lease deed it was the duty of the lessee to keep and maintain the whole of the demised premises together with the compound, fittings etc. in clean and good condition subject however to reasonable wear and tear for the use thereof and under clause (c) to maintain the projection and sound equipments provided that if the lessee wants to replace the machinery, projectors and sound equipments etc. he would do so at his own cost. In this respect my attention has also been invited to the following sentence in Halsbury's Laws of England : Third Edition, Vol. 23, page 362, para 1233 : "the fact that the tenant has covenanted to repair, "fair wear and tear excepted" (g) or "damage by fire and tempest excepted" (h), does not imply a covenant by the landlord to make such fair wear and tear or damage good. " ;