The U.P. Act No. 13 of 1972 does not take away the tenant's right under common law to undertake repairs without imposing financial liability on the landlord.

Manoj Kumar Gupta, J.

The plaintiff-respondent instituted Original Suit No. 811 of 2008 for prohibitory injunction restraining the petitioners from interfering in his right to keep the tenanted premises in good condition, i.e., windproof and waterproof, by carrying out repair of the roof thereof. The petitioners who are impleaded as defendants in the suit, being landlord of the demised premises, moved an application under Order 7 Rule 11 CPC for rejecting the plaint. In the application, it is alleged that in the past, the plaintiff-respondent had filed an application under Section 28 of the U.P. Act no.13 of 19721 but the same was rejected on 11.4.2008. The suit now filed before the civil court is not maintainable, in view of the provisions of Section 38 of the Act, which gives overriding effect to the provisions of the Act.

2. The trial court by an order dated 26/5/2010 rejected the application filed by the petitioners. The trial court has come to the conclusion that the suit instituted by the plaintiff-respondent is not barred by any provision of the Act. It has been held that Section 28 of the Act would apply in a different situation where the tenant wants the landlord to bear the expenses of the repair. In the opinion of the trial court, the provisions made in this regard in the Act do not take away the right of the tenant under the common law to undertake the repairs himself, without imposing any financial liability on the landlord. For enforcement of such right, he can maintain a suit before the civil court. For coming to such conclusion, the trial court placed reliance on the judgement in the case of Sudhakar Shukla and others vs. Rajesh Kumar Agarwal 1983 (1) ARC 165.

3. Aggrieved by the order of the trial court, the petitioners preferred a revision which has been dismissed by the Additional District Judge, Court no.4, Moradabad by impugned order dated 9.7.2015. The revisional court, apart from placing reliance on the judgement in Sudharkar Shukla and others (supra), has further placed reliance on Saroj Dwivedi (Smt.) vs. Additional District Judge, 2003 (1) ARC 579 . In the said judgement, this Court after considering the entire scheme of the Act as well as the provisions of Section 108(m) of the Transfer of Property Act, 1882 held that the provisions of the U.P. Act No. 13 of 1972 are not inconsistent with the provisions of section 108(m) of the Transfer of Property Act, 1882 and both the provisions can co-exist as they operate in different situations. It is held that under section 28 of the Act, the tenant has got a right to compel the landlord to bear the expenses incurred in undertaking the repairs of the demised premises, whereas under section 108(m) of the Transfer of Property Act, 1882 the tenant is under a legal obligation to keep the premises in a good condition and for fulfilling the said obligation, he can maintain a suit before the Civil Courts, in case hindrance is being caused by the landlord. It has been observed as under : -

"4. The provisions of U. P. Act No. 13 of 1972, referred to above are not inconsistent in the sense that they can co-exist with the provisions of Section 108(m) of the Transfer of Property Act. Under the provisions of Section 108(m), it is the duty of the tenant to keep the premises in as good a condition, as they were when they were let out. The provisions of the Act No. 13 of 1972, make it obligatory upon the landlord to keep the premises windproof and waterproof and to enforce this obligation, the tenant has been given a right to apply under Section 28 to the prescribed authority and to claim adjustment of the expenses against the rent in the manner and to the extent provided for under that section. The provisions of Sections 26 and 28 of U. P. Act No. 13 of 1972, are for the benefit of the tenant and they create an obligation upon the landlord to keep the premises windproof and waterproof and to effect periodical repairs. These provisions do not take away the right of th