P L D 1969 Dacca 446 (PLP)

This Second Appeal is directed against a judgment of the first Appellate Court reversing that of the trial Court. The plaintiff is the appellant before me. The case of the plaintiff is that the defendant was the owner of the Municipal Holding No.

547. This holding was actually a road side `nala' and the suit house was constructed over the holding. The floor of the house was wooden and it rested on wooden posts and pegs, which were driven into then drain. In course of time the wooden pegs and posts became weak and in order to support the house further wooden and bamboo posts were added. As a result the flow of water with refuses in. the nala was interfered with. The neighbouring shop keeper lodged information to the Municipality who took up the matter and directed the defendant by a notice to reconstruct the suit house according to plan approved by the Municipality and to replace all the pegs and posts in such manner as to avoid interference with free flow of water with refuses. There was a reminder to the notice Exh. 2 dated 18‑6‑

55. The defendant, on getting these notices approached the plaintiff and asked them to take up the matter with the Municipality and execute all necessary works of repair as may be approved by the Munici pality at their (plaintiffs) expense on the condition of either adjustment of the same against rent in future or re‑imbursement of the entire expenses later on. The plaintiffs undertook the repairs as in case of default the structure would be demolished and they would loose their business which they were carrying on in the suit premises. The bill of repairs came to Rs. 945‑6‑

0. The further case of the plaintiffs was that at the time of the tenure it was agreed that the plaintiff would be paying the Municipal taxes and there were several Small Cause Court Suits on either side and on adjustment regarding the taxes paid by the plaintiff and the rent due to the defendant ultimately the sum which would be recovered from the defendant would come to Rs. 941‑9‑0. . The defendant appeared and contested the suit saying that there was no agreement between the defendant and the plaintiff as regards the repairs but admitted in the course of the pleadings that the repairs in fact were carried out. The trial Court on an analysis of the evidence came to the finding that there was no agreement between the plaintiff and the defendant and the Court further found that the sum which would actually be found due from the defendant was Rs. 893‑2‑0 for repairs which sum would be further reduced on the admission of the plaintiff. This by set off a further sum of money the defendant was liable for the sum of Rs. 859‑5‑

0. Although the trial Court found that there was no agreement between the plaintiff and the defendant for carrying out the work yet the defendant was liable as he was deriving the benefit for the works carried out by the plaintiff and as such under section 70 of the Contract Act the plaintiff was entitled to be re‑imbursed by the defendant the sum of Rs. 859‑5‑0 and as such he decreed the suit with costs and directed the plaintiff to recover from the defendant the said amount of Rs. 859‑5‑0 with decretal costs by way of set off against the rent paid by the plaintiff to defendant for the month of August 1967, and subsequent months until the entire decretal amount satisfied. There were further conditions which I need not set out. On appeal by the defendant the learned Additional Sub ordinate Judge held that the relationship between the plaintiff' and the defendant was governed by section 23 of the East Bengal Premises Rent Control Act and he held that the plaintiffs. had not proceeded in accordance with the provisions of the said act and has concurrently found with the learned Munsif that there was no agreement between the plaintiff and the defendant for carrying out the said work and as such he held that the expenditure made by the plaintiff was unauthorised. The learned appellate Court below further dismissed the claim of the Munici pality tax made by the plaintiff, although in fact the claim for the municipality tax after the adjustment of the Small Cause Court decrees obtained by the parties would reduce the amount claimed by the plaintiff. Therefore the learned Subordinate Judge allowed the appeal with costs. It may be noted here that the appeal was allowed ex parte. Hence the Second Appeal. Mr. Mozammel Haque appearing on behalf of the plaintiff argued that although he could not challenge the concurrent finding of fact found by the Courts below to the effect that there was no agreement for executing the work between the plaintiffs and the defendant yet the provisions of section 70 of the Contract Act were rightly applied by the learned trial Court and wrongly rejected by the Appellate Court. Section 70 of the Contract Act reads as follows: Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make a compensation to the former in respect of, or to restore, the thing so done or delivered. The word lawfully is important. According to the learned Subordinate Judge the relations between the plaintiff and the defendant being governed by the East Bengal Premises Rent Control Act, the only manner by which the plaintiff could recover the money was under section 23 of the East Bengal Rent Control Act, as they have not done so therefore they have not acted lawfully as contemplated by section 70 of the Contract Act. Section 23 of the East Bengal Premises Rent Control Act is reproduced below: 23(1) The Controller shall, on application made to him in this behalf by any tenant in possession of any premises, cause a notice to be served in the prescribed manner on the landlord thereon requiring him to make any repairs which such landlord is bound to make to the premises or to take any measures for the due maintenance of any essential supply of service, such as, the maintenance of the supply of water or electricity, the maintenance of drainage service and the maintenance of any lift, which such landlord is bound to maintain in the premises under the conditions of the tenancy or according to local usage. (2) If within thirty days from the date of the service of such notice the landlord fails or neglects to make such repairs or to take such measures, as the case may be, the tenant may submit to the Controller an estimate of the cost of such repairs or measures and may apply to him for permission to make such repairs or to take such measures himself and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of cost and making such enquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs or to take such measures, as the case may be, at a cost not exceeding such amount as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs or to take such measures himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, 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‑sixth of the rent payable by the tenant for that year: Provided further that if the repairs or measures, though necessary in the opinion of the Controller, exceed in cost the said amount, and the tenant agrees to bear the excess cost himself the Controller may permit the tenant to make such repairs or to take such measures. (3) The repairs or measures mentioned in subsection (1) shall not be deemed to include such repairs or measures without which the premises are not habitable or unable except with great inconvenience, like keeping them wind and water tight. The landlord shall be bound to make such repairs or to take such measures in any event. On his failure to do so the provisions of subsections (1) and (2) shall apply without the limitation as to the amount deductable or recoverable as provided in the said subsection. (4) Notwithstanding anything contained in subsections (1) and (2) if the necessity for making any repairs or for taking any measures referred to in subsection (1) is so urgent that any delay involved in the procedure referred to in the said sub sections is likely to subject the tenant to personal loss, damage or serious incovenience, the tenant may himself cause the notice referred to in subsection (1) to be served in the pre scribed manner on the landlord requiring him to make such repairs or to take such measures within seventy‑two hours of the service of notice and shall even such case submit, at the same time, a copy of such notice to the Controller together with an estimate of the cost of such repairs or measures to enable the Controller to make such enquiries as he may consider necessary about the necessity of such repairs or measures and correctness of the estimate so submitted, and if, after the service of such notice, the landlord fails to take such repairs or to take such measures within the time mentioned in the tenant may himself make such repairs or take such measures, as the case may be, and after completion of such repairs or measures, submit to the Controller a statement of the cost thereof and thereafter the Controller, after considering such statement and making such further enquiries as he may consider necessary, may, by an order in writing, determine the amount of the costs which the tenant is entitled to recover from the landlord, and the tenant may thereupon deduct the amount so determined 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 sixth of the rent payable by the tenant for that year. Provided further that the provision of the first proviso shall not apply to any repairs or measures without which the premises are not habitable or usable except with great in convenience, like keeping them wind and water tight. Here it will be observed that the section is not introduced' by the phrase "Notwithstanding anything contained in any other law" as is found in section 17 which so far as is relevant is reproduced below: 17 (1) Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Act and performs the conditions of the tenancy: Provided that nothing in this subsection shall apply‑ (a) where the tenant has done any act contrary to the pro visions of clause (m), clause (o) or clause (p) of section 108 of the transfer of Property Act, 1882, or (b) where, in the absence of any contract to the contrary, the tenant has, without the consent in writing of the landlord, sublet the premises in whole or in part, or (c) where the tenant has been guitly of conduct which is ‑a nuisance or an annoyance to occupiers of adjoining or neigh bouring premises,, or (d) where the tenant has been using the premises or part thereof or allowing the premises or part thereof to be used for imoral or illegal purposes, or (e) where the premises are bona fide required by the landlord either for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory by the Court. In the same Act the Legislature is making a section not subject to the provisions of other acts while nothing is said about the implication of other Acts on the provisions of another section. I he legitimate inference from this is that section 23 is to be read subject to the provisions of other Acts, and that section 23 provides a machinery within the Act for realising the dues of repairs carried out by the tenant from the landlord but it is not B the exclusive method. It must be regarded as an alternative method in addition to other methods permissible by law Moreover the section refers to any repairs. It was not a question of mere repairs but it was a question of support of the suit premises as required to be altered by the Municipality. There was a degree of compulsion in the notices Exhs. 2 and 2 (a), which would force the hands of the tenant. The landlord has undoubtedly benefited by the work which the Municipality had directed to be carried on. This work has been carried on by the plaintiffs and there is no question of any agreement or non com pliance with the provisions of section 23 in the facts and circumstances of the case. Therefore, I hold that the learned trial Court was correct in holding that section 70 of the Contract Act applied to the facts and circumstances of the case. I, therefore, allow this appeal. Set aside the judgment and decree of the lower appellate Court and restore that of the learned Munsif. There will be no order as to costs of this second appeal. A. E. Appeal allowed.