Civil Appeal No 2 of 1982
From the Judgment and order dated 16
101981 of the Kerala High Court in C R P No 1927 of 1987
N Sudhakaran for the Appellants
EMS Anam for the Respondents
83 The Judgment of the Court was delivered by A SABYASACHI MUKHARJI J
This appeal by special leave is directed against the order of the High Court of Kerala at Ernakulam dated the 16th October 1981 in Civil Revision Petition No 1927 of 1981
The appellants are the heirs of the original tenant
The original appellant died and his heirs have been substituted in his place
The landlord being the respondent herein wanted the premises in question for his own use and occupation
He accordingly applied to the Rent Controller for permission
The Rent Controller after hearing the parties granted such permission The Appellate Authority upholding the order of the Rent Controller maintained the order of eviction
There was a revision before the learned District Judge
The learned District Judge dismissed the revision petition holding that it was difficult to interfere with the concurrent findings of facts of the Courts below on the bona fide need of the landlord for his own use and occupation
The tenant came up before the High Court in second revision and the High Court after hearing the parties and considering the contentions urged before it dismissed the revision upholding the order of Rent Controller the Appellate Authority and the District Court under Section 20 of the Kerala Building Lease and Rent Control Act 1965 that the landlord required the premises for his bona fide need and for self occupation
The only contention that was urged in the matter was that the landlord was not entitled to eviction under sub section 3 of Section 11
Sub section 3 of Section l l provides as under A landlord may apply to the Rent Control Court for an order directing the tenant to put in possession of the building if he bona fide needs the building for his own occupation or for the occupation be any member of his family dependent on him
 The contention urged before the Courts below including the High Court was that the second proviso to Sub section 3 of Section 11 had not been fulfilled and the second proviso provides as under That the Rent Control Court shall not give any direction to a tenant to put the landlord in possession if such tenant is depending for his livelihood mainly on the 84 income derived from any trade or business carried on in A such building and there is no other suitable building available in the locality for such person to carry on such trade or business
 All the Courts have found against the tenant s contention on this aspect of the matter
As this is a question of fact the High Court in our opinion has rightly declined to interfere with that findings of fact
Before we proceed further it was pointed out by the counsel for the respondents that in view of the provisions of the said Act and in view of the decision of this Court in the case of Aundal Ammal vs Sadasivan Pillai  the second revision before the High Court in the facts and circumstances of this case did not lie
For the purpose of this appeal we are not proceeding with on that basis but have examined the facts found by the courts below to find out if there is any infirmity in their findings as mentioned hereinbefore
It is found as a fact that the landlord bona fide needed the premises in question for his own use and occupation
Therefore Section 113 has been complied with
The only contention raised was whether on the second proviso to Section 113 of the Act the landlord was not entitled to eviction
That was rejected by the High Court on the ground that this was a question of fact and all the Courts have found in favour of the landlord
We agree with this
Even if a second revision lay the scope of interference by the High Court in the second revision is very limited
This has been so held by this Court in Ms Sri Raja Lakshmi Dyeing Works and others vs Rangaswamy Chettiar AIR 1980 SC 1253
We adhere to this principle
It was urged before us that the building in question was used for non residential purpose by the tenant and the bona fide need of the landlord was said to be for the use and occupation of the landlord and his family which is a residential purpose
It was submitted that such a need cannot justify in this case the eviction of the tenant
It was also submitted that Section 17 of the Act prohibited such conversion
Sub section 1 of Section 17 which is relevant for the present purpose provides as follows Section 17
Conversion of buildings and failure by land 85 lord to make necessary repairs 1 No residential buildings shall be converted into a nonresidential building or vice versa and no such building shall be divided into separate portions for letting on rent or for other purposes except with the permission in writing of the Accommodation Controller Provided that where such conversion involves structural alteration of the building the consent of the landlord shall also be necessary
 It appears clear that this conversion as contemplated for which permission was required is conversion by the tenant and cannot be a conversion by the landlord
Quite apart from the fact that in this case there was no conversion of the building sought
The building was used for non residential purpose and the purpose for which the building was sought was for residential purpose
It appears to us that putting to a different purpose the user of the building is not a conversion of the building as such
It has been found that the building as it is without any structural change can be put to residential purpose
There was no conversion of the building as such is involved in this case but a change of user of the building
Furthermore in any event the proviso to Section  I makes it clear in our opinion that such conversion as contemplated by Section 17 of the Act for which permission in writing by the Accommodation Controller required is in case of change of the user of the premises by the tenant and not by the landlord
The use of the expression such conversion in the proviso indicates that in case of conversion by the tenant permission is required on the consent of the landlord
Therefore the absence of permission in writing of the Accommodation Controller in this case does in our opinion affect the position
This appears to be the view of the Kerala High Court on this aspect of the matter
See in this connection Muhammed vs Abdul Rahiman and Das Naik vs Narayanan This appears to be the correct view of law
Our attention was also not drawn to any decision of the Kerala High Court which has taken any contrary view
The view held by the Kerala High Court in this aspect has been relied by the High Court in the judgment under appeal
It seems to be logical view
We would therefore follow that view
In view of the proviso explaining the ambit of that requirement that permission sought for or mentioned in Section 171 is in respect of the different user by the tenant and not by the landlord
The High Court has also observed in term 86 convert does not denote a mere change in the mode of occupation but covers only alterations of the physical features the prescriptions of Section 17 are not attracted to the present case at all
Admittedly the building in question has rooms which can be used as bed rooms sitting room etc
and it has a kitchen and dining hall
No alteration or conversion is required if the building is to be used for residential purposes
In the aforesaid view of the matter there was hardly any scope for interference by the District Judge and he declined to do so on this basis
In our opinion he was right
Similar was the position of the High Court on these facts and it declined to interfere with the findings of fact
In the aforesaid view there is no merit in this appeal
The appeal fails and is dismissed accordingly
Parties will pay and bear their own costs
Since the tenants have been in possession of the premises for some time we direct that the decree for eviction shall not be executed till 3091988 provided all the heirs of deceased appellant file an usual undertaking in this Court within four weeks from today stating inter alia
as follows 1
That the appellant will hand over vacant and peaceful possession of the suit premises to the respondent on or before 3091988 from today
That the appellants will pay to the respondent arrears of rent if any within one month from today
That the appellants will pay to the respondent future compensation for use and occupation of the suit premises month by month before 10th of every month
That the appellants will not induct any other person in the suit premises
It is further directed that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time the decree shall become executable forthwith
PSS Appeal dismissed 


Summary:
 The appellants a Hindu undivided family leased out a house owned by them
The covenant in the lease deed stated that the tenant will maintain and keep the demised premises in good and habitable condition tenantable repair execute all repairs including annual white washing repairs of electric and sanitary fittings etc
at the lessee s expenses and that the lessors shall undertake at their own cost major repairs such as repairs against collapse of the house
Originally in the assessments for the years 1954 55 1960 61 and 1961 62 the annual letting value of the property was arrived at RS36000 and a deduction of Rs6000 was allowed for repairs under section 241ia of the Income Tax Act 1961
Subsequently the assessments were re opened on the ground that the assessee had got excess relief
In the re assessments the Income Tax officer held that as the lessee had undertaken to keep the premises in good and habitable condition execute all repairs the deduction of Rs6000 was impermissible
He accordingly determined the annual letting value of the property at Rs40000 and allowed a deduction of Rs4000 towards repairs under s241ia of the Act
In the reopened assessment for the year 1954 55 the assessee s claim for deduction of Rs5645 being the cost of the repairs undertaken by them was disallowed on the ground that this was a case where the tenant had undertaken to bear the cost of the repairs and therefore the allowance for repairs was limited to the limit permissible under section 241ib
The Appellate Assistant Commissioner and the Income Tax Appellate Tribunal affirmed the above view
88 At the instance of the assessee the Tribunal stated a case and referred it to the High Court which though answered against the assessee granted a certificate under section 261 of the Act regarding the applicability of section 241ib and reconsideration of deduction of the expenditure which was not allowed in the original assessment in the course of reopened assessments
In the appeal by special leave it was urged that the covenant for repairs embodied in lease deed did not cast the burden to carry out the repairs exclusively on the lessee and that since the lessor had also undertaken to carry out some of the repairs section 241ib was not attracted and the benefit of section 241ia was therefore available
On the question whether having regard to the terms of the covenant it could be said that the tenant had undertaken to bear the cost of repairs within the meaning and for purposes of section 241ib of the Act
Dismissing the appeals  HELD 11 This is clearly not a case where the burden of carrying out repairs as understood in the context of section 241ib of the Income Tax Act 1961 is shared between the lessor and the lessee
The obligation is on the lessee alone
The obligation under the latter part of the covenant does not relate to such repairs
93G H 12 The idea of repair  may include replacement or even a renewal
But the converse may not be true
All replacements or renewals need not necessarily be repairs 
In the case of a building restoration of stability of safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the reconstruction of the entirety of the subject matter may not be so regarded
93B C A general covenant to repair without any such words as tenantable or habitable or good repair is satisfied if the premises are kept in a substantial state of repair
92H Having regard to somewhat comprehensive nature of the obligations that go with and are attachment to and recognised under the tenant s covenants for repairs  it must be held that the covenant in the present case is one under which the tenant has undertaken substantial repairs  and it must accordingly be held to fall within clause 89 b of section 241i of the Act and not under clause a of the section and that the allowance for repairs must be one under and limited to that provision
93F Commissioner of Income tax vs Parbutty Churn Law  Lurcoff vs Wakely and Wheeler 1911 I KB 905 Rodesia Railway Ltd vs Income tax Collector 1933 Appeal Cases 368 Ravenseft Properties Ltd vs Davstone Holdings Ltd 1980 QB 12 and Halsbury s Laws of England 4th Edn paragraph 286 referred to