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(2) If the landlord neglects to make within a reasonable time, after a notice is served upon him by post or in any other manner, 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."

Even under Section 23 of the Bombay Act (as applied to Gujarat) a similar proviso exists with this difference that in spite of permitting the tenant to deduct one month's every year, it permits three months' rent to be deducted towards the expenses made by him for repairs in one year. It was argued by Mr. Shah that it is implicit in this provision under Section 23 of the Act that the deductions will spread over a period longer than the period provided in the Limitation Act. The object of sub-section (2) is to enable the tenant to carry out tenantable repairs which the landlord has failed to carry out which he was bound to do under sub-section (1), an extraordinary remedy is provided by the Legislature to the tenant to reimburse himself by resorting to the process of Court of law. The period of limitation ordinarily applies only to the proceedings to be taken in a Court of law under the Civil Procedure Code and it will not apply to the remedy of the nature provided by S. 23 for deduction of the amount. It is further urged that Section 23 itself does not lay down any period of limitation for such deductions nor does any other provision prescribe any period of limitation for resorting to this mode of remedy. It was submitted that so far the remedy of deduction is concerned, no consideration of the period of limitation arises and so long as rent is payable, he can always resort to the remedy subject to the restriction placed by the proviso. It was further urged that his submission receives support from Section 3 of the Limitation Act (Act No. 36 of 1963).

23. In the light of this conclusion of mine on the second ground. I need not decide the third contention raised by Mr. Shah. But as both parties have argued at length on this point also, I deem it proper to deal with it shortly. Mr. Shah urged that assuming that the period of limitation for recovery of the amount spent by the tenant for effecting the repairs is three years, even then on the facts of the case, the tenant would be entitled to deduct an amount which would reduce the arrears of rent to less than six months. In order to support this argument, Mr. Shah pointed out that Rs. 71/- were held to have become due by the previous suit in the year 1959. Over and above that the court held that the tenant was entitled to Rs. 117.75 for repairs made by him in October 1959. The total therefore comes to Rs. 188.75. Mr. Shah then urged that the proviso to Section 23 says that the amount cannot be deducted all at once and not more than one-twelfth of the amount can be deducted every year. Therefore, only Rs. 20/- every year could be deducted by the tenant for the repairs made by him. On this basis, out of Rs. 188.75 due to him, first Rs. 20/- of the year 1959 would become time barred in the year 1962 and the amount of Rs. 20/- which were due to be deducted in 1960 would get time barred in the year 1963. Therefore, out of this total amount of Rs. 188.75 on the date of the notice Rs. 40/- would be time barred and the remaining amount of Rs. 148.75 would be within time on the date of the notice. Mr. Shah conceded that if this was the only amount due, then on the assumption, the period of limitation being three years, the amount due for arrears of rent would exceed the period of six months. But he urged that the appellate court had erred in respect of two amounts which if added to this amount of Rs. 148.75 will reduce the amount of the rent due to the arrears of rent of less than six months. The first of these two amounts. Mr. Shah pointed out, is Rs. 60/- which the trial court held the tenant was entitled to deduct for repairs in the year 1964. But the appellate court held that the trial court had committed an error in allowing this amount to the tenant. The learned Advocate submitted that the learned District Judge had erred in doing so and he put forward two grounds to support his submission; (i) factually the appellate court was wrong in holding that no notice as required by Section 23 was given by the tenant in respect of repairs; (ii) the appellate court could not have disallowed this amount as no cross- objections had been filed by the landlord against the finding of the trial court in respect of Rs. 60/-.

24. Dealing with the first ground. Mr. Shah tried to urge that the reasoning of the District Judge that no notice is proved because neither a copy of the alleged notice dated 23rd September 1964 or any acknowledgment thereof had been produced and proved, is erroneous. He pointed out that the postal acknowledgment exists on the record which is its No. 76 on the list Exhibit 10. He further pointed out that though no copy of the notice dated 23rd September 1964 exists on the record, in Exhibit 23 dated 30th October 1964 which is a reply given by the defendant to the notice of the landlord, he has specifically referred to the notice dated 23rd September 1964. Therefore, ample proof on the record is there that such a notice had been given to the landlord for making the repairs in the year 1964. This submission of Mr. Shah however cannot bear any fruit in this court. It is true that there is an acknowledgment which may reasonably be said to be in respect of a notice given on the 23rd September 1964 by the tenant but in the absence of a copy of that notice it cannot be conclusively said that in the said notice a demand for carrying out tenantable repairs was made by the tenant. But apart from that, there is one very definite hitch in his way and that is in cross-examination the defendant himself has categorically admitted that after 1961 he had not given any notice for repairs to the landlord. Therefore, in any case it becomes a pure question of appreciation of evidence and if the appellate court has relied upon this categorical admission of the defendant, it would not be open to me sitting in revision to re-appreciate the evidence on that point. It cannot therefore, be said that there was no evidence to come to that conclusion nor can it be said that the conclusion is perverse.

27. The result is that as the tenant gets the advantage of the longer period of six years to deduct the amount spent by him for repairs the amount due as arrears of rent is for a period less than six months. The suit must therefore fail.

28. As a last ditch attempt on the part of Mr. Raval, he made an effort to urge that the matter should be remanded on the ground that the courts below had not given any attention or consideration to the very important aspect as to whether the amount which the tenant claimed and which the courts found were due to him as amount spent by him for repairs, could in law be said to have been incurred for making tenantable repairs. According to him, unless and until the tenant establishes that fact, he would not be entitled to any amount on the score of repairs. Now I find it really very difficult to assent to this submission of Mr. Raval for various reasons. In the first place, I find that no such point has been raised in the appellate court. If such a point had been raised, we would certainly have found some discussion on the point. Then again it would not be right to say that the trial court did not give any attention to this aspect of tenantable repairs as a matter of fact while allowing or rejecting the various items claimed by the tenant on the ground of repairs having been made by him, the learned trial Judge has applied his mind and even where notice had been given, he allowed only such items as could be considered to be tenantable repairs. Therefore, even on facts, this submission cannot be accepted. The trial court having dealt with the subject, it is now not open to the landlord to urge that the matter must be sent back for a finding on this question. I have no hesitation therefore in rejecting this last submission on behalf of the landlord.