9911796707
TMI Blog1957 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... The Petitioner's appeal to the appellate authority against that order failed, and his revision petition to the District Court of South Kanara under Section 12-B of the Act was also dismissed. This further revision petition is directed against the order of the District Court, under Section 115 of the Code of Civil Procedure. 3. Mr. Karanth learned Advocate for the Respondent raised a preliminary contention that this revision petition was not maintainable. His argument was that the order of the District Court dismissing the revision petition presented by the Petitioner, could not be further assailed under the provisions of Section 115 of the Code of Civil Procedure. It seems to me that this preliminary objection has to fail for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 552 (B); Truscott v. Diamond Rock Boring Co., (1882) 20 Ch D 251 (C) and Commissioner of Income-tax, Excess Profits Tax, Madras v. Rama Sugar Mills Ltd., Bobbili, (D), to support his contention that a repair may be a renewal or replacement. The relevant sections of the Act read as follows : Section 8 : (1) No landlord shall, without just or sufficient cause, cut off or withhold any of amenities enjoyed by the tenant. Section 11 : (2) If a landlord fails to make the necessary repairs to he building within a reasonable time after notice is given by the tenant, it shall be competent for the Controller to direct on application by the tenant that such repairs may be made by the tenant and that the cost thereof may be deducted from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng (here in inverted commas) is mine). Renewal, as distinguished from repair, is reconstruction of the entirety meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed by Lister V. Lane, (1893) 2 QB 212 (P) and Wright v. Lawson, (1903) 19 TLR 510 (G). But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h-room for which the respondent applied, was in the nature of a repair within the meaning of Section 11 of the Act. Nor do I find anything in the definition of the word 'building' contained in Section 2 of the Act, to which Sri Bhatt referred, justifying a contrary view. 7. Assuming that such restoration can be considered a repair which a tenant can make under Section 11 of the Act, it does not follow that he cannot apply under Section 8, for their restoration as amenities unless it could be said that the cow-shed and the bath, cannot be regarded as amenities at ail -- the rights or remedies under the two sections not being necessarily mutually exclusive. Mr. Bhatt has therefore strenuously urged that they are not amenities. Ho d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this case reached the conclusion that in this case the cow-shed and the bath-room were amenities within the meaning of the Act. It does not seem to me that that finding was unjustified, 9. The implication of the finding of the Controller that the unavailability of the amenities enjoyed by the respondent was attributable to the wilful omission of the petitioner to repair the walls of the storm water drain, is that these amenities were cut off or withheld by him. I believe this finding to be well founded. That being so and having regard to the fact that the petitioner expressed his willingness before the Controller to restore those amenities for a higher rent which the respondent was willing to pay, it docs not appear to me that I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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