P L D 1954 Dacca 32 (PLP)

Subsection (1) of section 18 of the Rent Ordinance runs thus :‑ The Controller shall, on application made to him in this behalf by any tenant in possession of any premises, cause notice to be served in the prescribed manner on the landlord thereof requiring him to make any repairs which such land lord is bound to make to the premises or to take any measures such as, the maintenance of the supply of water or electricity, the maintenance of drainage service and the main tenance of any lift which such landlord is bound to maintain in .the premises under the conditions of the tenancy. Subsection (2) of the section says: If after service of such notice landlord fails or neglects to make within reasonable time such repairs or to take with in reasonable time such measures, as the case may be, the tenant may submit to the Controller an estimate of the cost of such repairs or measure's, and may apply to him for per mission to make such repairs or to take such measures him self and, thereupon the Controller may, after considering such estimate of costs and making such inquiries 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 amount so specified, from the rent or otherwise recover it from the landlord. Subsection (3) of the section says :‑ 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 section is likely to, subject the tenant to personal loss, damage or serious inconvenience, the tenant may himself cause a notice referred to in subsection (1) to be served in the prescribed manner on the landlord requiring him to make such repair or to take such measures within forty-eight hours of the service of such notice and shall in every such case submit, at the same time, a copy of such notice to the Controller with an estimate of the cost of such repair or measures to enable the Controller to make such inquiry as he may con sider necessary about the necessity of such repair or measures and the correctness of the estimate so supplied, and if, after service of such notice, the landlord fails to make such repairs or to take such measures within the time mentioned in the notice, 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 state ment of the costs thereof and thereafter the Controller after considering such statement and making such further inquiry 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. On perusal of the provisions of the aforesaid two sections it seems to be pretty clear that in no circumstances a lessee will have the right to make any repairs however urgent they may be without giving notice to the lessor. It is true that appellants fled an application before the Rent Controller for causing a notice to be served in the prescribed manner on the landlord requiring him to make repairs which the landlord was bound to make to the premises but this was about a month after the institution of the present suit. With the institution of the stilt the respondents applied for a temporary injunction restrain ing the appellants from dismantling the room. The Munsif granted ad interim injunction but subsequently it was with drawn. The withdrawal of the order was a judicial blunder on the part of the Munsif but for this blunder progress of the construction work could not have been possible. In this connection it is worth mentioning that there was no attempt on the part of the appellants in either of the Courts below to prove that if the new construction work had, not been taken up, the defendant would have suffered personal damage or irreparable loss. If the defendants succeeded in proving that re‑construction was urgent and the plaintiffs were putting it off on flimsy pretexts, the matter would have stood on a different footing. It is true that the granting of mandatory injunction is a matter of discretion but the Court before granting such injunction must with great caution weigh all facts and circumstances with the balance of convenience, and inconvenience, the possibility of the injury being adequately compensated by damages, the conduct of the parties and the nature and extent of the right infringed. As a general rule, and in the absence of special circumstances, if the injured man comes into Court on the first opportunity after he has seen that they will interfere with his rights, the injunction is to be granted. On the other hand when a plaintiff has not brought his suit or applied for in junction at the earliest opportunity but waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted though there might be cases where it would be. Here in the present case, as already pointed out, the lower Appellate Court has affirmed the order of the Munsif after giving due consideration to the balance of convenience and inconvenience and the pos sibility of the injury being adequately compensated by damages, the conduct of the parties and the nature and extent of the right infringed. The defendants' conduct is highly deplorable. He started the mischievous campaign with a pre conceived plan and converted an antic inn into a mystic tavern in utter disregard of the inconvenience which was likely to cause to the occupants of the adjoining room under the same roof. The most ugly feature of the defence is that though the new room has not any of the distinctive traits of its pristine structure, still the defence would attempt to delude the Court into belief that the old structure had not been replaced by a new one. If the house needed repair badly the occupants of the other two rooms would not have remained idle but would have surely joined hand with the defendants‑appellants in this fight. But in fact they did not. This coldness on their part strikes at the very root of the theory that the room needed repairs very badly. The learned Advocate for the appellants contends that the appellant by his conduct having forfeited the tenancy, plaintiffs' remedy lay in a suit under section 111 (g) of the Transfer of Property Act. I confess I am unable to subscribe to this view. It is true that section 111 (g), speaks of forfeiture but it has nothing to do with the present case. The section runs as follows :‑ "A lease of immovable property determines‑ (g) by forfeiture, that is to say (1) in case the lessee beaks an express condition which provides that, on breach thereof the lessor may re‑enter ; (2) in case the lease renounces his character as such by setting up a title in a third person or by claiming title in himself ; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re enter on the happening of such event, and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease." As the present case does not satisfy any of the conditions laid down in the aforesaid section, the plaintiffs are not competent to bring a suit for ejectment on the ground of Next argument advanced is that the defendants having already applied to the Rent Controller for assessment of repair costs, the plaintiffs instead of filing the suit for mandatory injunction ought to have approached the Controller for settle ment of the cost of repair. This contention, also does not appeal to me at all, the suit having been filed before the filing of the application before the Rent Controller. I have already stated at the very outset that the Courts below directed restoration of the room to its original condition. This order has been taken exception to by the learned Advo cate for the appellants whose contention is that in a case where the Court is not capable of superintending a recon struction work involving considerable expense and engineering skill, it should not grant mandatory injunction directing reconstruction. In support of this contention he has relied on section 35 of the Specific Relief Act as well as on the decision in the case of Kashi Nath v. Municipal Board, Agra (A I R 1939 All. 375). The law laid down in that case is as follows ;‑ It is only in regard to the performance of certain acts which the Court is capable of enforcing, that the Court will grant a mandatory injunction. A Court will not therefore be justified in granting a mandatory injunction by which it is required that a party should undertake works of consider able extent by way of improvements and constructions requiring a good deal of engineering skill besides consider able amount of money to meet the expense, because the Court is not capable of superintending the works and thus enforcing the injunction and because award of damages is certainly an efficacious remedy in such cases. It is true that the principle enunciated in that case is not dis puted but the facts upon which it was laid down are different from those of the present case. There construction required engineering skill of high order but here dismantling and recon struction will not demand any skill of extraordinary order. Of the three rooms two are still in existence and ‑it will not be at all difficult to execute the work on the model of those rooms. It is true that it will not be possible for Court to superintend the work but this may be entrusted to a local overseer to be appointed by the Court of first instance at the costs of the appellants. In the result the appeal fails and dismissed with costs. Leave under clause 15 of the Letters Patent is prayed for but refused. The refusal is sharply followed by a prayer for three months' time to carry out the order, which is allowed. A. H. Appeal dismissed.