Madan B. Lokur, J.

( 1 ) THE petitioner had filed a suit, being Suit No. 78/ 2000 (new number), for a mandatory injunction directing the respondents to carry out necessary repairs in a portion of the tenanted premises. It was also prayed that a decree of damages for Rs. 2 lakhs, with interest be passed against the respondents.

( 2 ) THE petitioner filed an interim application for directions to the respondents to carry out necessary repairs during the pendency of the suit. By an order dated 30th October, 1998 the application was dismissed by the learned additional District Judge.

( 3 ) FEELING aggrieved, the petitioner filed FAO No. 29/1999 in this Court and by an order dated 27th July, 2000, it was held that the Trial Court had not committed any illegality or impropriety in declining grant of interim relief to the petitioner. It was further held that if repairs were carried out, particularly plugging a hole in the roof, during the pendency of the suit, the grant of interim relief would amount to granting the entire relief of a mandatory injunction prayed for by the petitioner.

( 4 ) AGAINST the order of the learned Single Judge, the petitioner preferred an SLP in the Supreme Court. This was withdrawn on 4th December, 2000 when learned Counsel for the petitioner stated that he would file an application before the Trial Court seeking permission to repair the premises in his occupation.

( 5 ) PURSUANT to liberty granted by the Supreme Court, the petitioner moved an application on 13th December, 2000. In this application, the petitioner prayed for permission to carry out necessary repairs at his own expense and for a direction to the respondents not to obstruct him in carrying out the repair work. It was also prayed that the Petitioner may be permitted to claim the expenses which would be incurred in the proposed repair work or for a direction to the respondents to make payments on the basis of the contractor s bill for material and labour.

( 6 ) THIS application was disposed of by the learned Additional District judge by an order dated 16th April, 2001, which is impugned in the present petition.

( 7 ) THE learned Trial Judge noted that the respondents had objected to the grant of relief prayed for in the application on four grounds. Firstly, it was contended that an earlier application for more or less the same relief was rejected. Secondly, it was contended that the petitioner has a more effective remedy under the provisions of the Delhi Rent Control Act, 1958 (the Act ). It was then contended that the application was frivolous with an intention to delay the proceedings in the suit and finally it was submitted that if the application is allowed, it would amount to a partial decretal of the suit filed by the petitioner.

( 8 ) THE learned Trial Judge considered all these objections and concluded that the prayer in the suit was one for a mandatory injunction to carry out repairs in the suit premises. The learned Judge was of the view that this was a matter squarely covered by the provisions of Section 44 of the Act. It was also held that in view of Section 50 of the Act, the jurisdiction of a civil Court was barred in respect of such matters. It was then held that the suit to this extent was not maintainable. Consequently, the relief of mandatory injunction was rejected. It was held that since the main relief could not be granted, the interim application was also not maintainable.

( 9 ) LEARNED Counsel for the petitioner submitted that damage to the suit property was the result of unauthorized construction made by the respondents on the upper floors. Reference in this context was made to an order dated 31st july, 2003 passed by a Division Bench of this Court in LPA No. 326/2001 (Yogender Pal v. MCD and Others) which related to the same property. In that case an allegation was made that 100% reconstruction was carried out on the first and second floor of the suit property by the respondents and the Division bench had directed the MC

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