Mitter, J.@mdashThis matter has been referred to us by P. N. Mookerjee, J. The point, though simple, is important. The petitioner is the owner of premises No. 61B, Lansdowne Road, Calcutta. The opposite-party is the petitioner''s tenant in respect of the first floor of the building at the said premises. According to the petitioner, the opposite-party intentionally caused some damage to the floor of the flat and to the staircase room. Accordingly, the petitioner moved the Rent Controller under sec. 34(4) of the West Bengal Premises Tenancy Act (Act XII of 1956) for the issue of a notice requiring the opposite-party to repair the damage. This application was dismissed, on the ground that it was not maintainable. The Appellate Court also took the same view.
2. It is common case that there was no written lease in respect of the property demised. It is also common case that there was no sort of agreement for the tenant to make any repairs. The question for decision is whether, in the absence of any such agreement, an application under sec. 34(4) lies.
3. Mr. Barman argues that under clause (m) of sec. 108 of the Transfer of Property Act, the lessee is bound to repair the damage and that, accordingly, an application under sec. 34(4) lies. According to Mr. Barman, the tenant''s duty to repair is an implied condition of the tenancy as provided under clause (m) of sec. 108 of the Transfer of Property Act. The learned Advocate argues that the language of sub-section (4) of sec. 34 attracts the provisions of clause (m) of sec. 108 of the Transfer of Property Act. He contends that the relative provision in the Tenancy Act does not abrogate the tenant''s liability under clause (m) of sec. 108.
4. Under clause (m) of sec. 108 of the Transfer of Property Act, the lessee is bound to keep the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force. The question is whether sub-sec. (4) of sec. 34 embodies the same liability as is provided under clause (m) of sec. 108 of Transfer of Property Act. Subsection (4) of sec. 34 is as follows:
Where under the conditions of the tenancy, the tenant is bound to make any repairs, but fails to do so, the Controller shall, on application made to him in this behalf by the landlord of the premises, cause a notice to be served in the prescribed manner on the tenant requiring him to make such repairs within the time specified in the notice. If, after the service of the notice, the tenant fails to show proper cause or neglects to make such repairs within the time specified in the notice or allowed by the Controller, the landlord will be entitled, notwithstanding anything contained in this Act or in any contract to sue the tenant for recovery of possession of the premises and such cost of such repairs as may be assessed by the Court.
5. In my view, the opening words of sub-sec. (4) as well as the structure of the sub-section clearly indicate the requirement of an express condition of the tenancy to repair before a tenant can be called upon to do so. Under clause (m) of sec. 108 of the Transfer of Property Act, there is an implied covenant on the tenant''s behalf to keep the property in as good condition as it was in at the time when he was put in possession. It follows that under clause (m) the lessee is liable for permissive waste and must keep the property in as good condition as he found it and must yield up the property in the same condition, subject only to fair wear and tear and irresistible force. Any breach of either of the two implied covenants exposes the tenant to a suit for damages. It is to be observed that here we are not concerned with a mere implied covenant to repair. Sub-sec. 4 of sec. 34 requires an express condition of the tenancy to make repairs. The jurisdiction of the Rent Controller to issue a notice under sub-sec. (4) of sec. 34 is dependent upon such an express condition of the tenancy, either oral or in writing. As already observed, in the absence of an express condition to make repairs, the tenant''s liability under the implied covenant under clause (m) of sec. 108 of the Transfer of Property Act is to be determined by a suit. In respect of wilful damage by the tenant, the landlord''s remedy is also by a suit for damages. Naturally, however, a tenant''s liability under clause (m) of sec. 108 of the Transfer of Property Act is in no way affected by the provisions of sub-sec. (4) of sec. 34 of the Tenancy Act. The landlord''s right as provided under sub-sec. (4) of sec. 34 to sue for recovery of possession is drastic and can only be enforced when there is an express condition of the tenancy to make repairs and there has been a failure to do so. In our view, in the absence of any such condition of the tenancy, the provisions of sub-sec. (4) of sec. 34 cannot be invoked. That being the position, the petitioner''s application was rightly dismissed.
6. The Rule is, in the result, discharged with costs, hearing fee being assessed at 2 G.Ms.
Banerjee, J.
7. I agree with the order made by my Lord, but I desire to add a few words of my own.
8. Under the petitioner landlord the opposite party is a tenant from month to month. The premises let consists of the entire first floor and a staircase room in the second floor of a house bearing No. 61B, Lansdowne Road.
9. Alleging that the tenant opposite party had wilfully caused damages to the premises, namely, broken a number of glass-panes in the staircase room and damaged the flooring of the first floor, the landlord petitioner filed an application, before the Rent Controller, under the provisions of sec. 34(4) of the West Bengal Premises Tenancy Act, 1956, praying that a notice be served on the opposite party tenant requiring him to repair the damages caused.
10. It was admitted before the Rent Controller, by the landlord petitioner, that the letting had been orally made to the opposite party and that there was no contract between the parties that the tenant would have to repair the damages caused to the premises. Since that was the position, the Rent Controller dismissed the petition.
11. The landlord appealed against the order passed by the Rent Controller. Before the appellate court it was contended that although there was no express contract between the parties that the tenant would repair all damages caused to the premises, such a contract was statutorily implied under the provisions of sec. 108 (m) of the Transfer of Property Act and the remedy as claimed would be available to the landlord under sec. 34(4) of the West Bengal Premises Tenancy Act read with sec. 108 (m) of the Transfer of Property Act. The appellate court negatived the contention. Hence, this application for revision at the instance of the landlord.
12. Mr. Barman, learned Advocate for the petitioner, urged the same point as had been argued before the lower appellate court for our consideration. We need refer to the provisions of sec. 108 (m) of the Transfer of Property Act and sec. 34(4) of the West Bengal Premises Tenancy Act before we proceed further.
Sec. 108 (m). The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition, and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left:
Sec. 34(4). Where under the, conditions of the tenancy, the tenant is bound to make any repairs, but fails to do so, the Controller shall, on application made to him in this behalf by the landlord of the premises, cause a notice to be served in the prescribed manner on the tenant requiring him to make such repairs within the time specified in the notice. If, after the service of the notice, the tenant fails to show proper cause or neglects to make such repairs within the time specified in the notice or allowed by the Controller, the landlord will be entitled, notwithstanding anything contained in this Act or in the contract, to sue the tenant for recovery of possession of the premises and such costs of such repairs as may be assessed by the Court.
13. It appears that sec. 34(4) applies only where under "the conditions of the tenancy the tenant is bound to repair". Sec. 108, Part B, of the Transfer of Property Act deals With rights and liabilities of the lessee and contain implied covenants of a lease in the absence of a contract to the contrary; that section applies only where there is a breach of any of the implied covenants.
14. Conditions of a lease are distinguishable from its covenants, whether express or implied. In Foa''s book on Landlord and Tenant (7th Edition) Art. 469, pages 311, 312, the distinction under the English Law is stated in the following language:
Subject to the right to relief from forfeiture now given to the lessee by statute, upon breach condition the lessor may re-enter, because the estate of the lessee determined; whereas a breach of covenant only gives him the right to recover damages (or to obtain an injunction), unless the right to re-enter is expressly reserved to him by the lease. . . .
15. The distinction between condition and covenant of a lease, under the Indian law, appears to be the same. A condition puts a bridle or a restraint, on the estate granted. But a covenant only imports an agreement for the breach of which the remedy may lie in damages.
16. In a decision reported in
It follows on the principles enunciated in (1868) 3 Q.B. 739 (Williams v. Earle) that though there was a covenant not to assign, the assignment was nevertheless operative and the landlord''s only remedy in default of a clause giving him a right of re-entry was a suit for damages. In our opinion, the language of the clause with which we are dealing is not appropriate to a covenant. It provides that in the case of a transfer, the transferee shall pay one-fourth of the consideration money to the landlord and also provides that in default of such payment, the transfer shall not be valid. In our opinion, this clause, is, in effect, a restrictive condition which limits the power of alienation, to which the grantee under the mourashi mokarari patta would, in default of special conditions, be entitled. The matter is really a simple one, and the principles which govern it are not peculiar to the law of landlord and tenant and are part of the ordinary rules as to the construction of contracts. The result of the authorities is very conveniently summarised in the Redman''s "Law of Landlord and Tenant", 8th Edition, at page 389. It is there stated as follows:
If a term is granted subject to a condition against assignment, an assignment by the lessee will be void but if the restraint is by covenant only, the lessee, by assigning, commits a breach of covenant but the assignment itself is not void,......
17. That being the position in law, the provisions of sec. 108 (m) of the Transfer of Property Act are not attracted to a proceeding contemplated under sec. 34 (4) of the West Bengal Premises Tenancy Act.
18. Sec. 34(4) of the West Bengal Premises Tenancy Act, as the language shows, comes into operation where under the condition of the tenancy the tenant is bound to repair; not where he is bound to compensate for breach of an implied statutory covenant to keep the premises under repair as under sec. 108 (m) of the Transfer of Property Act. Since the lease becomes voidable for breach of condition, sec. 34(4) recognises the right of the landlord to sue for possession and at the same time confers an additional relief on the landlord, namely, that he can also claim costs of repair for the damages caused. Since the petitioner does not claim, in the instant case, that the tenant was bound by any condition of the tenancy to repair the damages, the application under sec. 34(4) of the West Bengal Premises Tenancy Act was rightly dismissed and the Rule must be discharged.
