JUDGMENT
Manmohan Sarin, J.
(1) The appellant is aggrieved by an order dated 12th October, 1994 passed by Shri S.L. Bhayana, Additional Districts Judge, whereby the learned Judge restrained the appellant, his wife, son, etc. from interfering with the respondent carrying out repairs in the tenanted premises bearing No. WP-552, Village Wazirpur, Delhi-52 and from removing the debris left by the Appellant. The respondent was further permitted to carry out the repair of the entire tenanted premises including the roof and the walls which had been damaged. Respondent was permitted to remove the debris and offer it to the appellant. In the event of appellant not accepting it, the respondent was free to dispose of the same.
(2) The relevant facts as per the Appellant are :-
(I)The respondent had initially taken on rent three rooms on the ground floor of property No. WP-552, Village Wazirpur, Delhi-52 at a monthly rent of Rs. 1,000.00. An additional room was let out @ Rs. 900.00 per month, with total rent of the premises being Rs. 1,900.00 per month.
(II)It is the appellant’s case that in August 1992, he approached the respondent as well as one tenant of the first floor of the property with the proposal to demolish the existing building and build a basement, ground floor and first floor, wherein they would be provided accommodation. This was because the building was more than fifty years old. It is alleged that Shri Naresh Kumar Bansal as well as the respondent accepted the proposal and Shri Naresh Kumar Bansal vacated the first floor portion which was got demolished. But thereafter the respondent resiled from the agreement and understanding and refused to vacate the portion in his tenancy on the ground floor, which was also to be demolished, so that reconstruction could be done. Not only this, the respondent went on to file a suit for perpetual injunction seeking an injunction against the appellant from interfering with the possession or from dispossessing him. A Local Commissioner also visited the tenanted premises and reported that there was a hole of about 2 fit 2 ft. in the roof of one of the rooms in the tenancy of the respondent. In November 1992, the respondent exchanged a room in his tenancy for portion of the hall to enable the appellant to construct the basement and staircase. The tenanted premises were old and were damaged in the rains, as a result of which, the roof of the tenanted premises fell down. “Die debris that had been thrown on the roof on the demolition of the first floor, had therefore fallen in to the tenanted premises.
(3) The respondent has refuted the allegation of any agreement having been arrived at in terms of which the respondent was to vacate the entire tenanted premises to enable the reconstruction of the entire building. It is stated that possession of one room was surrendered by the respondent in exchange of another room. The Appellant was to carry out the construction and it was for this reason that one of the rooms had been surrendered and possession of another room was taken. The appellant landlord had specifically agreed to carry out the repairs of the remaining tenanted premises, which he refused to do. The respondent’s case is that after demolition of the first floor, the landlord intentionally kept the debris on the roof of the tenanted premises, which damaged the roof and ultimately resulted in the roof coming down the factory of the respondent being closed. It is stated that the appellant landlord used to open the water tap on the debris which would accumulate there and then flow into the tenanted premises.
(4) The appellant opposed the application moved by the respondent for being permitted to carry out repairs. It is stated that in August 1994, only part of one room was damaged while the roof of the remaining rooms was intact. Obstruction was caused by the appellant to prevent respondent from removing the debris. This led to filing of the application for contempt as well. It is stated that the respondent has been subjected to extreme harassment and reduced to penury because of the action of the appellant resulting in closure of his factory and wasting of his goods lying there. It is stated that the respondent is short of funds and would require some further time to carry out the repair.
(5) Learned Counsel for the appellant has assailed the order on the following grounds:-
(I) It is stated that the appellant has been fraudulently put into a disadvantageous position by the respondent, who made him demolish the first floor of the property after getting it vacated from the tenant Sh. Naresh Kumar Bansal. The appellant had duly constructed a basement and a staircase for utilizing one room that had been vacated by the respondent and in exchange of which respondent had obtained a portion of the hall. The respondent, therefore, was not entitled in equity for the permission sought.
(II)The second ground urged is that trial Court erred in not appreciating that it had no jurisdiction to grant the relief for carrying out the repairs in a tenanted premises as the matter was governed squarely by Section 44 of the Delhi Rent Control Act, 1958. Jurisdiction of the Civil Court stood barred under Section 50 of the Delhi Rent Control Act. Section 44 of the Delhi Rent Control Act is reproduced for reference :-
“LANDLORD’ Study to keep the premises in good repair:- 1. Every landlord shall be bound to keep the premises in good and tenantable repairs. 2. If the landlord neglects or fails to make, within a reasonable time after notice in writing 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 them from the landlord: Provided that the amount so deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year. 3. Where any repairs without which the premises are not habitable or useable except with undue inconvenience arc too be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller and estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord and opportunity of being heard and after considering such estimate of the cost and making such enquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs 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-half of the rent payable by the tenant for that year: Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself, the Controller may permit the tenant to make such repairs.”
(6) I am unable to agree with the submission of the learned Counsel for the appellant. The provisions of Section 44 of the Delhi Rent Control Act would get attracted in a situation where the tenant requires the landlord to bear the expense for repair or part thereof. The section provides the procedure for service of notice on the landlord prior to repairs as also for permission from the Rent Controller for the tenant to carry out repairs after estimate of costs is approved. The section also provides for limits on the liability of the landlord. However, in a case where the tenant only seeks permission to remove the debris thrown by the landlord and/or repair the damage caused to the tenanted premises at his own costs entirely provision of Section 44 of the Delhi Rent Control Act are not applicable. Hence the suit or the application would not be barred under Section 50 of the Delhi Rent Control Act. The first submission of the learned Counsel for the appellant that the respondent had perpetrated fraud on the appellant and had not come to the Court with clean hands and was therefore not entitled to any discretionary relief does not inspire any confidence. Admittedly there was no written agreement with regard to vacation of the tenanted premises and/or the tenant being allocated any portion in the proposed reconstructed premises. The Trial Court has correctly not accepted the version of the appellant landlord. On the other hand based on the material on record and the pleadings, it is the tenant who has been subjected to harassment. Admittedly debris was collected on the roof of the tenanted premises which was not only not removed but obstruction was caused in its removal by the respondent, resulting finally in the roof coming down. The respondent’s factory has been closed down and he has been deprived of the use of the tenanted premises. Counsel for the appellant has relied on Air 1958 Madras 287 in support of his proposition that the interim relief granted should not be greater in scope than the relief sought in the main suit. In the instant case, the respondent had prayed, inter alia, for a restraint on the appellant from causing any damage to the tenanted premises and amendment application under Order Vi Rule 17 Civil Procedure Code is pending adjudication wherein the prayer clause is sought to be further widened. The cited case does not advance the appellant’s case. The relief given is to restore the position at the time of institution of the Suit. I find that in the instant case, the Trial Court has correctly exercised its discretion and the order advances the cause of substantial justice. I find no error or infirmity in the impugned order. The appeal is dismissed. The respondent is permitted to carry out the repairs and remove the debris within a period of one year from today. The Trial Court file be returned back forthwith.