Bombay High Court
Suhas B.Marathe vs Shri Mahadeo Ganesh Joglekar on 30 January, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:7670
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Vaibhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5389 OF 2000
Suhas B. Marathe ...Petitioner
Versus
1(a). Balwant Mahadeo Joglekar & Ors. ...Respondents
_______________________________________________________________
Mr. Yashodhan Divekar a/w Siddhant Varunkar i/b M/s. Divekar & Co.,
for the Petitioner.
Mr. M. L. Patil, for the Respondents.
Mr. Drupad S. Patil - Amicus Curiae.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 30 JANUARY 2025
JUDGMENT:
1. Heard Mr. Divekar, learned Counsel appearing for the Petitioner,
Mr. M. L. Patil, learned Counsel appearing for the Respondents and Mr.
Drupad Patil, learned Amicus Curiae.
QUESTION OF LAW:
2. In this Writ Petition an interesting question of law concerning the
interpretation of Section 23 of the The Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 ("Bombay Rent Act") is raised.
It is the contention of the Petitioner - Landlord that if the tenantable
repairs are carried out to the suit premises by the tenant then in one
year only one-fourth of the aggregate of yearly rent can be deducted or
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recovered and therefore the Suit filed for recovery of the entire amount
required for repairs is not maintainable. On the other hand, it is the
contention of the Respondent - Tenant that as the tenant was
constrained to carry out the repairs, as landlord refused or neglected to
carry out the same, which is the statutory responsibility of the landlord,
the entire amount incurred by the tenant for repairs be allowed to be
recovered.
CHALLENGE:
3. By the present Writ Petition preferred under Article 227 of the
Constitution of India, the challenge is to the legality and validity of the
Judgment and Decree dated 31st March 1997 passed by the learned IInd
Joint Civil Judge, Junior Division, Miraj at Miraj in Regular Civil Suit
No.225 of 1989 as well as to the Judgment and Decree dated 11 th
August 2000 passed in Regular Civil Appeal No.231 of 1997 by the
learned IInd Additional District Judge, Sangli at Sangli.
4. The Respondent - Plaintiff filed said Regular Civil Suit No.225 of
1989 against the Petitioner - Defendant seeking recovery of an amount
of Rs.27,032.05/-. The Plaintiff is the tenant and the Defendant is the
landlord. The learned Trial Court by the impugned Judgment and
Decree dated 31st March 1997 partly decreed the Suit filed by the
Plaintiff i.e. present Respondent and directed the Defendant i.e. present
Petitioner to pay an amount of Rs.21,178.15/- to the present
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Respondent along with interest at the rate of 15% per annum on the
said amount of Rs.21,178.15/- from the date of filing of the Suit till
realisation. The said Judgment and Decree of the learned Trial Court
has been confirmed by the learned Appellate Court by the impugned
Judgment and Decree dated 11th August 2000.
FACTUAL MATRIX:
5. Before setting out the rival contentions and consideration of the
same, it is necessary to set out the relevant factual position :-
i. It is the contention of the present Respondent/Plaintiff/Tenant
that the suit premises were in dilapidated condition and therefore
required immediate repairs. It is contended that the same is the
statutory responsibility of the Petitioner/Defendant/Landlord.
Therefore, Plaintiff issued a notice on 8 th August 1987 calling upon the
Defendant to carry out the repairs. The Defendant failed to reply to the
said notice and as the Defendant neglected to carry out the repairs, the
Plaintiff commenced the repairs.
ii. The Defendant obstructed the said repair work and therefore
Plaintiff filed Regular Civil Suit No.246 of 1987 against the Defendant
seeking injunction. The learned Trial Court restrained the Defendant
from obstructing the Plaintiff from carrying out the repair work. The
Plaintiff completed the repair work under the police protection. For the
said repair work, the Plaintiff spent an amount of Rs.21,170.15/-.
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iii. As the Defendant being landlord failed to carry out the repairs
and is liable to pay the said amount with interest, by notice dated 11 th
April 1988, the Plaintiff demanded the said amount along with
compensatory cost at the rate of 15% per annum.
iv. As the Defendant failed to pay the said amount the Suit has been
filed being the Regular Civil Suit No.225 of 1989 on 26th June 1989 for
recovery of an amount of Rs.27,032.05/- along with interest at the rate
of 15% per annum.
v. The learned Trial Court partly decreed the said Regular Civil Suit
No.225 of 1989 by the impugned Judgment and Decree dated 31 st
March 1997 by directing Defendant to pay to the Plaintiff an amount of
Rs.21,178.15/- and also directed payment of interest at the rate of 15%
per annum on said amount from the date of filing of the Suit till
realisation.
vi. The Appeal filed by the Petitioner/Landlord being Regular Civil
Appeal No.231 of 1997 was dismissed by the impugned Judgment and
Decree dated 11th August 2000.
SUBMISSIONS OF THE PETITIONER:
6. Mr. Divekar, learned Counsel appearing for the Defendant raised
the following submissions :-
i. The decree passed by the learned Trial Court as confirmed by the
learned Appellate Court is contrary to Section 23 of the Bombay Rent
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Act.
ii. The decree could have been passed only for one-fourth of the rent
payable by the tenant in any year. The rent of the said property is
Rs.14/- per month and therefore the aggregate rent for one year is
Rs.168/-. Thus, in a year only an amount of Rs.42/- can be recovered.
iii. The Suit filed for recovery of entire amount of expenses is not
maintainable as the entire amount is not due and recoverable in a year.
iv. The decree of Rs.21,178.15/- which has been granted by the
learned Trial Court as confirmed by the learned Appellate Court is
totally illegal and contrary to Section 23 of the Bombay Rent Act.
v. He submitted that, irrespective of the amount of the expenses
incurred by the tenant, what can be recovered by the tenant as per
Section 23 of the Bombay Rent Act is only an amount of one-fourth of
the aggregate rent payable by the tenant for one year. Thus, in effect it
is the submission of Mr. Divekar, learned Counsel appearing for the
Petitioner is that, even if, tenant has made expenditure of
Rs.21,178.15/- still the tenant can only recover an amount of Rs.42/-
per year and Suit can be filed each year for recovery of said amount of
Rs.42/-.
vi. Mr. Divekar, learned Counsel appearing for the Petitioner
therefore submitted that the impugned Judgment and Decree be
quashed and set aside and the said Suit be decreed as not maintainable
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or alternatively the said Suit be decreed to the extent of only Rs.42/-
per year.
SUBMISSIONS OF THE RESPONDENTS:
7. On the other hand Mr. M. L. Patil, learned Counsel appearing for
the Respondents raised the following contentions :-
i. It is the statutory responsibility of the landlord to keep the
premises in good and tenantable condition. As the Petitioner/Defendant
failed to perform his statutory duty the Respondent/Plaintiff was
required to carry out the tenantable repairs.
ii. Even while carrying out the tenantable repairs the landlord i.e.
the present Petitioner/Defendant obstructed the Plaintiff and therefore
the Plaintiff was required to institute a Regular Civil Suit No.246 of
1987 wherein, the Defendant was restrained from obstructing the
Plaintiff while he was carrying out the repair.
iii. Thus, in the facts and circumstances no interference is warranted
under the jurisdiction of this Court under Article 227 of the Constitution
of India. To substantiate the said contention, reliance is placed on the
decision of a learned Single Judge in Prabhudas Narayan Gedam v.
Municipal Council Bhadravati 1.
iv. As per the settled legal position a person having done wrong can
not take advantage of his own wrong and plead bar of any statutory
1 2003 1 MhLJ 275
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provision. Thus, no interference in the impugned Judgments is
warranted. To substantiate the said contention, reliance is placed on the
following decisions :-
a) Decision of the Supreme Court in the case of Jose v. Alice 2.
b) Decision of the Division Bench of the Bombay High Court
[Aurangabad Bench] in the case of Yash Engineers v. State of
Maharashtra 3.
v. It is submitted that second proviso to Section 23(2) can not be
read in such a manner that the same nullifies the right given by Sub-
Section (2) of Section 23 of the Bombay Rent Act.
vi. It is submitted that, while interpreting Section 23 of the Bombay
Rent Act, change in circumstances are required to be taken into
consideration. As huge expenses are now required for repairs as
compared to the period when the Bombay Rent Act was enacted, while
passing order of recovery, entire amount is required to be directed to be
paid. It is therefore submitted that Section 23 is required to be
interpreted in the light of change in the circumstances.
vii. Thus, it is submitted that no interference in the impugned
Judgment and Decrees is warranted.
SUBMISSIONS OF LEARNED AMICUS CURIAE:
8. Mr. Drupad Patil, learned Amicus Curiae, made following
2 1996 6 SCC 342
3 2024 SCC OnLine Bom 1071
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submissions :-
i. Sub-Section (2) of Section 23 gives right to the tenant to repair
the tenanted premises and to deduct or recover the expenses from the
landlord and the proviso prescribed the limit on such deduction or
recovery. Sub-Section (2) of Section 23 and second proviso to Sub-
Section (2) are very clear. The said proviso specifically provides that the
amount deducted from the rent or recoverable in any year shall not
exceed one-fourth of the rent payable by the tenant for that year.
Although the right of recovery or deduction is given to the tenant for
recovery of amount incurred on the repairs, the extent of deduction of
recovery is specified in the second proviso. Thus, the deduction or
recovery in a year can only be to the extent of the limit specified in the
second proviso to Sub-Section (2) of Section 23 of the Bombay Rent
Act.
ii. By relying on the decision of the Supreme Court in the case of
Hindustan Ideal Insurance Co. Ltd. v. LIC of India 4, it is submitted that
where the main provision is clear, its effect cannot be cut down by the
proviso. However, where it is not clear, proviso can be properly looked
into to ascertain the meaning and scope of the main provision. Reliance
is also placed on the decision of the Supreme Court in Tribhovandas
Haribhai Tamboli v. Gujarat Revenue Tribunal 5 and submitted that
4 1962 SCC OnLine SC 69
5 (1991) 3 SCC 442
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proviso to provision only embraces the filled, which is covered by main
provision. Proviso can not be torn apart from the main enactment nor it
can be used to nullify what the enactment clearly says.
iii. Reliance is placed on the decision of the Gujarat High Court in
Nayak Kalidas Motiram v. Meenabai 6 and submitted that the tenant will
not be entitled to recover the entire amount of the expenses incurred by
him at one time. The amount recoverable from the landlord every year
shall have to be fixed, taking into account one-fourth of the amount
payable to the tenant for a particular year.
POINTS FOR CONSIDERATION:
9. In view of the above submissions of all the learned Counsel as
well as the Amicus Curiae the following points arise for consideration:
I. What is the scheme of Section 23 of the Bombay Rent Act?
II. Whether in view of the change of circumstances Section 23 of the
Bombay Rent Act is required to be interpreted by holding that the
tenant can recover the entire amount incurred for repairs at one time?
III. Whether any interference is warranted in the impugned
Judgments under jurisdiction of this Court under Article 227 of the
Constitution of India?
REASONING:
6 1974 SCC OnLine Gujrat 27
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POINT NO.I
What is the scheme of Section 23 of the Bombay Rent Act?
POINT NO.II
Whether in view of the change of circumstances Section 23 of the
Bombay Rent Act is required to be interpreted by holding that the
tenant can recover the entire amount incurred for repairs at one time?
10. Before considering the submissions of both the parties and also
submissions of learned Amicus Curiae, it is necessary to set out Section
23 of the Bombay Rent Act, which reads as under :-
"23.Landlord's duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for the
time being in force and in the absence of an agreement to the
contrary by the tenant,every landlord shall be bound to keep
the premises in good and tenantable repair.
(2) If the landlord neglect to make any repairs which he is
bound to make under sub-section (1), within a reasonable
time after a notice of not less than, fifteen days is served upon
him by post or in any other manner by a tenant or jointly by
tenants interested in such repairs, such tenant or tenants may
themselves make the same and deduct the expenses of such
repairs from the rent or otherwise recover them from the
landlord:
Provided that where the repairs are jointly made by the
tenants the amount to be deducted or recovered by each
tenant shall bear the same proportion as the rent payable by
him in respect of his premises bears to the total amount of
these expenses incurred for such repairs together with simple
interest at the rate of fifteen per cent per annum of such
amount:
Provided further that the amount so deducted or recoverable
in any year shall not exceed one fourth of the rent payable by
the tenant for that year. (3) For the purpose of calculating the
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expenses of the repairs made under sub-section (2), the
accounts together with the vouchers maintained by the
tenants shall be conclusive evidence of such expenditure and
shall be binding on the landlord."an agreement to the
contrary by the tenant, every landlord."
(Emphasis added)
The analysis of Section 23 of the Bombay Rent Act shows the following
aspects :-
a) Every landlord shall be bound to keep the premises in
good and tenantable repair. It is the landlord's statutory duty
to keep the premises in good and tenantable repair.
b) If the landlord fails to perform his statutory
responsibility of carrying out the repairs to the tenanted
premies or to the said building the following course of action
is provided :-
i. The tenant or tenants jointly interested in such repairs
shall serve on the landlord a notice of not less than 15 days
calling upon the landlord to carry out the repairs.
ii. If the landlord fails to carry out the repairs within a
reasonable time after a notice of not less than 15 days is
served upon him by a tenant or jointly by tenants interested
in such repairs, such tenant or tenants are entitled to carry
out the repairs themselves.
iii. Such tenant or tenants can deduct the expenses of such
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repairs from the rent or otherwise recover them from the
landlord. Where the repairs are jointly made by the tenants,
the amount to be deducted or recovered by each tenant
shall bear the same proportion as the rent payable by the
tenants in respect of their premises bares to the total
amount of expenses incurred for such repairs.
iv. It is specifically provided that the amount so deducted
or recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
v. It is also provided that for the purpose of calculating
the expenses of the repairs the accounts together with the
vouchers maintained by the tenants shall be the conclusive
evidence of such expenditure and shall be binding on the
landlord.
11. Thus, a bare reading of Section 23 of the Bombay Rent Act makes
it clear that amount so deducted or recoverable in any year from the
landlord shall not exceed one-fourth of the rent payable by the tenant
for that year.
12. The submission of Mr. M. L. Patil, learned Counsel for the
Respondent is that if the landlord fails to carry out the repairs which is
the statutory responsibility of the landlord, then in that event the
amount required to be incurred by the tenant on repairs can be allowed
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to be recovered without the restriction imposed by the proviso to Sub-
Section (2) of Section 23 of the Bombay Rent Act. It is his submission
that the right given to the tenant by Sub-Section (2) of Section 23 of the
Bombay Rent Act can not be taken away by the proviso. Whereas it is
the submission of Mr. Divekar, learned Counsel that the rent which is
received by the landlord from the tenant is so meagre that it will be
totally unjust to direct the Landlord to pay the entire amount and the
same is contrary to the scheme of Section 23 of the Bombay Rent Act.
13. For appreciating the above submissions it is necessary to consider
the legal position regarding the effect of proviso on the main
enactment. Mr. Drupad Patil, learned Amicus Curiae relied on the
decision of Hindustan Ideal Insurance (supra) and more particularly on
Paragraph No.26, which reads as under :-
"26. There is no doubt that where the main provision is
clear its effect cannot be cut down by the proviso. But where
it is not clear the proviso, which cannot be presumed to be a
surplusage, can properly be looked into to ascertain the
meaning and scope of the main provision. By looking at the
proviso for this purpose the rule of construction referred to by
learned counsel will not be infringed."
14. Learned Amicus Curiae also relied on the decision of
Tribhovandas (supra) and more particularly on Paragraph No.6 of the
same, which reads as under :-
"6. It is a cardinal rule of interpretation that a proviso to a
particular provision of a statute only embraces the field,
which is covered by the main provision. It carves out an
exception to the main provision to which it has been enacted
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by the proviso and to no other. The proper function of a
proviso is to except and deal with a case which would
otherwise fall within the general language of the main
enactment, and its effect is to confine to that case. Where the
language of the main enactment is explicit and unambiguous,
the proviso can have no repercussion on the interpretation of
the main enactment, so as to exclude from it, by implication
what clearly falls within its express terms. The scope of the
proviso, therefore, is to carve out an exception to the main
enactment and it excludes something which otherwise would
have been within the rule. It has to operate in the same field
and if the language of the main enactment is clear, the proviso
cannot be torn apart from the main enactment nor can it be
used to nullify by implication what the enactment clearly says
nor set at naught the real object of the main enactment,
unless the words of the proviso are such that it is its necessary
effect."
15. The Supreme Court in the decision of S. Sundaram Pillai v. V.R.
Pattabiraman 7 after discussing the law regarding general principles of
construction of a proviso and main purport and parameters of a proviso
held in Paragraph No.43 as under :-
"43. We need not multiply authorities after authorities on
this point because the legal position seems to be clearly and
manifestly well established. To sum up, a proviso may serve
four different purposes:
(1) qualifying or excepting certain provisions from the
main enactment:
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make
the enactment workable:
(3) it may be so embedded in the Act itself as to become an
integral part of the enactment and thus acquire the
tenor and colour of the substantive enactment itself;
and
7 (1985) 1 SCC 591
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(4) it may be used merely to act as an optional addenda to
the enactment with the sole object of explaining the
real intendment of the statutory provision."
16. The Supreme Court in S. Sundaram (supra) relied on the decision
of Hiralal Rattanlal v. State of U.P. 8, wherein in Paragraph No.22 it has
been held as under :-
"... Ordinarily a proviso to a section is intended to take out a
part of the main section for special treatment. It is not
expected to enlarge the scope of the main section. But cases
have arisen in which this Court has held that despite the fact
that a provision is called proviso, it is really a separate
provision and the so-called proviso has substantially altered
the main section. ..."
17. Thus, if Sub-Section (2) of Section 23 read with the second
proviso to the same is considered on the touchstone of the above
parameters, then it is clear that the said proviso is in fact a separate
provision and has substantially altered the main provision i.e. Sub-
Section (2) of Section 23. It is clear that substantive provision of Sub-
Section (2) of Section 23 is subject to the mandatory provision as
contemplated by second proviso. Thus, although Sub-Section (2) of
Section 23 gives unqualified right to the tenant who has carried out the
tenantable repairs to deduct the expenses of such repairs from the rent
or otherwise recover the same from the landlord, the same can be to the
extent of only one-fourth of the rent payable by the tenant for that year.
Thus, the submissions raised by Mr. M. L. Patil, learned Counsel on
8 (1973) 1 SCC 216
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behalf of the Respondents cannot be accepted. In this case, it is very
clear that unqualified right given to the tenant of deducting or
recovering the amount of expenses incurred for such repairs is qualified
by the second proviso i.e. the said deduction or recovery shall not
exceed one-fourth of the rent payable by the tenant for that year.
18. The Supreme Court in the decision of Kesho Ram and Co. v.
Union of India 9, while discussing the object of rent control legislation
observed that the object of rent control legislation is to safeguard the
interest of the tenants against their exploitations by landlords. It has
been observed that the paramount object of any rent control legislation
is to safeguard the interest of tenants against their exploitation by
landlords. After the Second World War there was movement of
population from rural areas to urban areas as a result of which the
problem of accommodation became acute in cities. Landlords of the
buildings took full advantage of the situation and they charged
exorbitant rent from tenants and very often evicted them by terminating
tenancy under the provisions of the Transfer of Property Act, 1882. The
tenants were helpless as the suits once filed by the landlord after
terminating the tenancy were bound to succeed. The legislatures of
different States took cognizance of the situation and enacted rent
control legislations providing safeguards for tenants by making
provisions for fixation of reasonable rent and also placing restrictions on
9 (1989) 3 SCC 151
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the landlords' right to evict tenants. Generally the rent control
legislation of various States exclude the jurisdiction of Civil Courts to
entertain a suit or pass a decree of eviction against a tenant; instead the
jurisdiction to evict a tenant is conferred on Rent Controller or some
designated authority and the statutory grounds for eviction of a tenant
have been laid down.
19. In Liaq Ahmed v. Habeeb-Ur-Rehman 10, while tracing the history
of rent control legislation in the country it was observed that the history
of legislation regarding rent controls in the country would show that the
Rent Acts were enacted to overcome the difficulties arising out of the
scarcity of accommodation which arose primarily due to growth of
industrialisation and commercialisation and inflow of population to the
urban areas. Such legislations were initially confined to big cities like
Bombay, Calcutta and Rangoon but their jurisdiction was gradually
extended to other areas in the country. Because of scarcity of
accommodation and gradual rise in rents due to appreciation of the
value of urban properties, the landlords were found to be in a position
to exploit the situation for their unjustified personal gains which were
consequently detrimental to the helpless tenants who were subjected to
uncalled for litigation for eviction. It thus became imperative for the
legislature to intervene to protect the tenants against harassment and
exploitation by the landlords for which appropriate legislations came to
10 (2000) 5 SCC 708
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be passed by almost all the States and Union Territories in the country
with the paramount object of essentially safeguarding the interest of
tenants and for their benefit.
20. In this background of the matter, it is required to be noted that as
per Section 7 of the Bombay Rent Act the landlord is prohibited from
charging the rent in excess of the standard rent. Standard rent is
defined under Section 5(10) of the Bombay Rent Act as the rent at
which the premises were let on the first day of September, 1940 or the
rent at which they were first let. Thus, the rent is statutorily fixed and
there is prohibition in the increase in rent. Thus, it is clear that the
return on the investement made by the landlord on the building or the
premises which are given on rent to the tenant or various tenants is very
meagre. Thus, the right given under Sub-Section (2) of Section 23 to
the tenant of deduction or recovery of the amount incurred for repairs
and the provision made by second proviso to Sub-Section (2) of Section
23 that the same can be deducted or recovered only to the extent of
one-fourth of the rent payable in a year, clearly shows that these
provisions are made to balance the competing interest of the landlords
and of the Tenants. Thus, the submission of Mr. M. L. Patil, learned
Counsel, that the unqualified right given to the tenant under Sub-
Section (2) of Section 23 cannot be curtailed by the proviso, cannot be
accepted.
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21. It is the further submission of Mr. M. L. Patil, learned Counsel that
in view of change of circumstances and as the expenses for repairs have
increased substantially and therefore Section 23 has to be interpreted
by holding that the second proviso will not curtail the unqualified right
given to the tenant under Sub-Section (2) of Section 23 of deduction or
recovery of the expenses incurred for repairs and the said amount is
required to be recovered at one time. It is true that as per the settled
legal position with the passage of time and with the consequent change
of circumstances the continued operation of an Act which was valid
when enacted may become arbitrary and unreasonable. However, it is
required to be noted that the Maharashtra Rent Control Act, 1999
("Maharashtra Rent Act") came into effect w.e.f. 31st March 2000 by
which inter alia Bombay Rent Act is repealed. As per Section 10 of the
Maharashtra Rent Act, it shall not be lawful or receive on account of
rent, for any premises, any increases above the standard rent and
permitted increases. Standard rent is defined under Section 7(14) of the
Maharashtra Rent Act. Thus, the rent is statutorily fixed. In the
Maharashtra Rent Act various provisions are made for increase in the
rent. Thus, the increase in the rent is permitted to the extent as
provided by various provisions of the Maharashtra Rent Act. Thus, it is
clear that the return on the investement made by the landlord on the
building or the premises which are given on rent to the tenant or
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various tenants is very meagre compared to the market rent, even after
the enactment of the Maharashtra Rent Act. In fact, it is required to be
noted that identical provision as contained in Section 23 of the Bombay
Rent Act is made in Section 14 of the Maharashtra Rent Act. Thus, after
passage of about more than 50 years of the Bombay Rent Act, similar
provision is made in the Maharashtra Rent Act. Thus, even the said
contention of Mr. M. L. Patil, learned Counsel that in view of change of
circumstances, Section 23 of the Bombay Rent Act, is required to be
interpreted by holding that the unqualified right of the tenant to deduct
or recover the rent will not be affected by second proviso to Sub-Section
(2) of Section 23 cannot be accepted.
22. Mr. Drupad Patil, learned Amicus Curiae has pointed out decision
of the Gujarat High Court in Nayak Kalidas Motiram (supra). The
relevant Paragraphs of the said decision are Paragraph Nos.11 and 12
and are reproduced herein below for ready reference :-
"11. A plain wording of this sub-section (2) of Section 23
of the Act, leaves no doubt that if the tenant, after the
landlord neglects to make any repairs, which he is bound to
make under sub-section (1), within a reasonable time after a
notice is served upon the landlord, the tenant himself is
entitled to make those repairs. He is further entitled to deduct
the expenses of such repairs from the rent. He is also entitled
to recover them from the landlord otherwise by deducting
from the rent. There is no limitation placed in this sub-section
either for deduction or for recovery of such expenses from the
landlord. On the contrary, the lessee (tenant) is entitled to
deduct the expenses of such repairs from the rent or
otherwise recover them from the landlord. It means that the
entire amount is liable to be deducted from the rent or it
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could also be recovered otherwise than by the deduction from
the landlord. That liability is not limited to any extent. The
second proviso, on which reliance has been placed by the
learned District Judge as well as by Mr. Jani, appearing for the
opponents before me, reads:
"Provided further that the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year, excluding
therefrom one-fourth of the proportionate taxes in respect
of his premises payable to a local authority for that year."
12. This proviso only indicates that the entire amount of
expenses incurred cannot be deducted from the rent of one
year at a time as well as the entire amount of expenses
incurred cannot be at a time recovered from the landlord
otherwise than by the mode of deduction. The reason for
making such a proviso is obvious If the entire amount is
deducted at one time from the rent, or the entire amount is
made recoverable from the landlord otherwise than by the
mode of deduction, then the landlord would be placed in a
very difficult position and the landlord may not be in a
position to pay the amount at one time. That is why the
legislature has, by this proviso, indicated that deduction in
any one year will be only to the extent of one -fourth of the
amount payable by the tenant for that year and that too, after
excluding therefrom one-fourth of the proportionate taxes in
respect of the premises payable to the local authority for that
year. Similar will be the position in case the tenant does not
want to deduct but wants to recover otherwise than by
resorting to the mode of deduction, the tenant will not be
entitled to recover the entire amount of the expenses incurred
by him at one time. The amount recoverable from the
landlord every year shall have to be fixed, taking into account
one-fourth of the amount payable to the tenant for a
particuler year excluding therefrom one-fourth of the
proportionate taxes in respect of his premises payable to the
local authority for that year. "
23. Thus, what has been held by the Gujarat High Court is that there
is no limitation placed in Sub-Section (2) of Section 23 either for
deduction or for recovery of such expenses from the landlord. The
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proviso only indicates that the entire amount of expenses incurred
cannot be deducted from the rent of one year at a time, as well as the
entire amount of expenses incurred cannot be at the time recovered
from the landlord otherwise than by the limit prescribed in the second
proviso.
24. Thus, it is clear that although Sub-Section (2) of Section 23 gives
right of deducting entire expenses required for repairs or recovering the
entire expenses from the landlord, by the second proviso to Sub-Section
(2) of Section 23, a cap is put on such a deduction or recovery and it is
specified that the same shall not exceed one-fourth of the rent payable
by the tenant for that year.
25. If the submission made by Mr. Divekar, learned Counsel
appearing for the Petitioner is accepted that a Suit can be filed for
recovery of the one-fourth of the rent of one year at a time and not for
recovery of the entire amount the same will be contrary to the right
given to the Tenant under Sub-Section (2) of Section 23 and the same
will amount to the multiplicity of the proceedings. The same will then
nullify the right given to the tenant under Sub-Section (2) of Section
23. In any case, the determination about the actual expenses the tenant
was required to incur on the repairs is required to be determined only
once. The second proviso to Sub-Section (2) of Section 23 only provides
that such deduction or recovery can be to the extent of one-fourth of the
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rent. Thus, after determining the amount incurred towards repairs the
Court has to pass decree in consonance with the second proviso to Sub-
Section (2) of Section 23 of the Bombay Rent Act.
26. Thus, Mr. Dhrupad Patil, learned Amicus Curiae is right in
contending that what is to be recovered is the entire expenses and only
cap is put on the actual recovery or deduction of entire expenses by
providing that the said amount shall not exceed one-fourth of the rent
payable by the tenant for that year.
27. It is clear that the expression "for that year" provided in the
second proviso to Sub-Section (2) of Section 23 is rent payable by the
tenant for the year in which the same is to be deducted or recovered
and not the rent payable by the tenant of the year in which the repairs
are made. Thus, insofar as the decree which has been passed by the
learned Trial Court directing payment of Rs.21,178.15/- alongwith
interest at the rate of 15% per annum the same is in accordance with
Sub-Section (2) of Section 23 of the Bombay Rent Act. However, the
said amount is to be recovered in accordance with the second proviso to
Sub-Section (2) of Section 23. Thus, to that extent the decree passed by
the learned Trial Court as confirmed by the learned Appellate Court
requires modification.
28. In view of above discussion, the point which requires
consideration is the relief to which the Petitioner is entitled. Thus,
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hereinafter Point No.III will be considered.
POINT NO.III
Whether any interference is warranted in the impugned Judgments
under jurisdiction of this Court under Article 227 of the Constitution of
India?
29. Mr. M. L. Patil, learned Counsel appearing for the Respondents
submitted that it is the duty of the landlord to keep the tenanted
premises in good and tenantable condition and the same is a statutory
duty of the landlord. It is clear that in this case the Petitioner landlord
has failed to perform his statutory duty. Thus Sub-Section (2) of Section
23 makes it very clear that if the landlord commits default in
performing his statutory duty then tenant is given right to carry out the
repairs after giving notice of 15 days to the landlord and deduct the
expenses of such repairs or to recover the same in accordance with the
scheme of the Section 23.
30. However, it is required to be noted that in this particular case
landlord has not only failed to perform his statutory duty but when the
tenant, after following the procedure as contemplated under Section 23
of the Bombay Rent Act, started carrying out the tenantable repairs at
his own expenses, the landlord obstructed the said repair work and
therefore the Respondent/Tenant was constrained to file Regular Civil
Suit No.246 of 1987 for injunction and in that Suit the Petitioner
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landlord was restrained from obstructing the tenant from carrying out
the repair work.
31. In view of the said conduct of the Petitioner/Landlord, Mr. M. L.
Patil, learned Counsel for the Respondent has rightly relied on the
decision of the Supreme Court in Ashok Kapil v. Sana Ullah 11 and
more particularly on Paragraph No.7 of the same, which reads as
under :-
" 7. If the crucial date is the date of allotment order, the
structure was not a building as defined in the Act. But can the
respondent be assisted by a court of law to take advantage of
the mischief committed by him? The maxim "Nullas
commodum capere potest de injuria sua propria" (No man
can take advantage of his own wrong) is one of the salient
tenets of equity. Hence, in the normal course, the respondent
cannot secure the assitance of a court of law for enjoying the
fruit of his own wrong."
(Emphasis added)
32. Mr. M. L. Patil, learned Counsel has also relied on a Division
Bench decision of this Court in Yash Engineers (supra) and more
particularly on Paragraph No.7 of the same, which reads as under :-
"7. Learned Senior Counsel appearing for the petitioner
has relied on the decision in Devendra Kumar v. State of
Uttaranchal, [Civil Appeal No. 1155 of 2006 decided by Apex
Court on 29.07.2013], wherein has been held that:-
"23. More so, if the initial action is not in
consonance with law, the subsequent conduct of a party
cannot sanctify the same. "Subla Fundamento Credit
opus"- a foundation being removed, the superstructure
falls. A person having done wrong cannot take advantage
of his own wrong and plead bar of any law to frustrate
the lawful trial by a competent Court. In such a case the
11 (1996) 6 SCC 342
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legal maxim Nullus Commodum Capere Potest De Injuria
Sua Propria applies. The persons violating the law
cannot be permitted to urge that their offence cannot be
subjected to inquiry, triat or investigation, (Vide : Union
of India v. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC
127: AIR 1996 SC 1340; and Lily Thomas v. Union of
India, (2000) 6 SCC 224: AIR 2000 SC 1650).
Nor can a person claim any right arising out of his
own wrong doing. (Juri Ex Injuria Non Oritur)."
Further, he relies on the decision in Union of India v.
Major General Madan Lal Yadav (Retd.), (1996) 4 SCC 127,
wherein it has been held that:-
"... It was noted therein that a man shall not take
advantage of his own wrong to gain the favourable
interpretation of the law. In support thereof, the author
has placed reliance on another maxim frustra legis
auxilium invocat quaerit qui in legem committit. He
relies on Perry v. Fitzhowe, [[L.R.] 8 Q.B. 757:15 QB
239]. At p.192, it is stated that if a man be bound to
appear on a certain day, and before that day the obligee
puts him in prison, the bond is vold. At p.193, it is stated
that "it is moreover a sound principle that he who
prevents a thing from being done shall not avail himself
of the non-performance he has occasioned". At p.195, it
is further stated that "a wrong doer ought not to be
permitted to make a profit out of his own wrong". At
p.199 it is observed that "the rule applies to the extent of
undoing the advantage gained where that can be done
and not to the extent of taking away a right previously
possessed." "
(Emphasis added)
33. Mr. M. L. Patil, learned Counsel has also relied on the decision of
Prabhudas Narayan Gedam (supra) and more particularly on Paragraph
No.9(e) of the same, which reads as under :-
"(e). Merely a wrong decision may not be a ground for the
exercise of jurisdiction under Article 227 unless the wrong is
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referable to grave dereliction of duties and flagrant abuse of
power by the subordinate courts or Tribunals resulting in
grave injustice to any party (See Estralla Rubber vs. Dass
estate, (2001) 8 SCC 97 and (Quseph Mathai vs. M.
Abdul Khadir, (2002) 1 SCC 319).
In the last mentioned case, i.e. Quseph Mathai's case, their
Lordships have taken note of the importance of restricting
exercise of power under Article 227 and in paragraph 7 have
made the following observations :
"Extraordinary powers appear to have been
exercised in a routine manner as if the power under
Article 227 of the Constitution was the extension of
powers conferred upon a litigant under a specific
statute. Such an approach and interpretation is
unwarranted. By adopting such an approach some
High Courts have assumed jurisdiction even in
matters to which the legislature had assigned
finality under the specific statutes. Liberal
assumption of powers without reference to the facts
of the case and the corresponding hardship to be
suffered by a litigant has unnecessarily burdened
the courts resulting in accumulation of arrears
adversely affecting the attention of the court to the
deserving cases pending before it." "
(Emphasis added)
34. Thus, it is clear that one of the factor which is required to be
taken into consideration while exercising jurisdiction under Article 227
of the Constitution of India is the conduct of the parties. In this
particular case as noted herein above, Petitioner has himself failed to
perform his statutory duty of keeping the tenanted premises in good
and tenantable condition and it is very important to note that the
landlord obstructed the tenant when the tenant was repairing the
premises at his own cost and therefore the Respondent was required to
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file injunction Suit where the learned Trial Court granted injunction
restraining the Petitioner from obstructing the repairs being carried out
by the Respondent. In fact, the repairs were carried out under the police
protection.
35. It is also required to be noted that a learned Single Judge by
Order dated 9th October 2000, while admitting the Writ Petition has
recorded that Petitioner have already paid an amount of Rs.25,000/-
pursuant to the impugned Judgments. The same is again reiterated in
the Order dated 3rd May 2001 passed by this Court. Thus, it is clear that
the Respondent has received an amount of Rs.25,000/- towards the
decreetal amount. Thus, in the facts and circumstances of this case, the
Respondent is not entitled to recover any further amount. Accordingly,
following order is passed :
ORDER
i. The Judgment and Decree of the learned Trial Court
dated 31st March 1947 passed in Regular Civil Suit No.225 of
1989 as confirmed by the learned Appellate Court of directing
payment by the Petitioner to the Respondent of an amount of
Rs.21,178.15/- with interest at the rate of 15% per annum is
maintained, subject to the modification that the same is to be
recovered in accordance with the second proviso to Sub-
Section (2) of Section 23 of the Bombay Rent Act.
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ii. However, in the facts and circumstances of this case
and in view of the conduct of the Petitioner as set out herein
above and as the Petitioner has already paid an amount of
Rs.25,000/- to the Respondent, it is specifically made clear
that the said decree is satisfied and no further amount is
required to be paid by the Petitioner to the Respondent and
the Petitioner is also not entitled to refund of any amount.
36. Accordingly, the Writ Petition is disposed of, subject to above,
with no order as to costs.
[MADHAV J. JAMDAR, J.]
