THE HONOURABLE SRI JUSTICE N.V. RAMANA and THE HONOURABLE SRI JUSTICE B.N. RAO NALLA Civil Miscellaneous Appeal No.765 of 2010 JUDGMENT: (Per Hon’ble Sri Justice N.V. Ramana) This civil miscellaneous appeal is directed against the order dated 06.08.2010 passed in I.A. No. 2584 of 2010 in O.S. No. 375 of 2010 on the file of the Chief Judge, City Civil Court, Hyderabad, whereunder the petition filed by the appellant herein, plaintiff in the suit, for grant of ad-interim injunction restraining the respondents, their servants and agents from interfering into carrying out the repairs, plastering, flooring etc. of the suit schedule property, was dismissed. The appellant herein filed the present suit for specific performance of oral agreement of sale between him and the father of respondent No.1 and also for cancellation of lease deed dated 30.07.2008 executed by respondent No.1 in favour of respondent No.2. It is his case that he originally obtained the suit schedule mulgies, five in number, from the 1st respondent’s father, on lease, and subsequently at the request of the 1st respondent’s father, he had vacated the eastern side mulgi and handed over its possession to the 1st respondent. Thereafter, the 1st respondent’s father entered into an oral agreement of sale, agreeing to sell the suit schedule mulgies to him for an amount of Rs.15,00,000/-, and also received an amount of Rs.10,50,000/- towards advance. While so, subsequently the 1st respondent’s father died and thereupon he requested the 1st respondent several times to receive the balance sale consideration of Rs.4,50,000/- and execute registered sale deed in his favour in respect of the suit schedule mulgies, but he refused to do so and instead he forcibly and illegally obtained the possession of western side mulgi in collusion with the 2nd respondent and filed a suit for eviction of the appellant from the suit schedule property. Pending the suit, the appellant filed the present petition, contending that the respondents are interfering with the repair works being executed by him to the suit schedule property and he therefore sought for an ad-interim injunction restraining the respondents from interfering with the repair works. Respondent No.1 resisted the claim of the appellant, by filing counter, and the same was adopted by respondent No.2. The Court below, upon consideration of the respective contentions of the parties, held that the appellant-petitioner failed to establish prima facie case and balance of convenience in his favour and therefore he is not entitled for injunction as prayed, and accordingly dismissed the present petition, by the order under appeal. Heard the learned counsel for the appellant and the learned counsel for the respondents, and perused the order under appeal and other material available on record. It is not in dispute that the appellant is in possession of three mulgies of the suit schedule property. While he claims title to the suit schedule property as purchaser, by virtue of alleged oral agreement of sale entered into between him and the father of respondent No.1, seeking specific performance of which he filed the present suit, the respondents deny his case and it is their stand that he is in possession of the mulgies as tenant only. Respondent No.1 is also said to have filed a suit for eviction of the appellant from the suit schedule property, for arrears of rent and mesne profits. Whether there was any oral agreement of sale as claimed by the appellant and whether he is entitled for its specific performance are the issues to be decided in the main suit by the trial Court. However, pending disposal of the suit, the appellant wants to effect repairs to the mulgies in question which are said to be in his possession and as the respondents were interfering with the repair works, the appellant sought interim injunction restraining the respondents from interfering with the repair works, but the Court below refused to grant the same. Now, having regard to the rival contentions, the only question to be considered in the present application is whether the appellant is entitled for interim injunction restraining the respondents from interfering into carrying out repair works of the suit schedule property, pending the suit. The 1st respondent contends that the appellant is his tenant and that for effecting repairs, he has to ask him to effect repairs, by issuing notice, and if he fails to respond, then the appellant can effect repairs and deduct the cost from the rents to be paid. In this context, he relied on sub-section (f) of Section 108 of the Transfer of Property Act, which reads as under: “if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor.” From the aforesaid provisions of law, it is clear that the lessee shall first give notice to the lessor asking him to make repairs to the suit schedule property, which he is bound to make and, if the lessor neglects to make them, within a reasonable time after notice, the lessee may make the same himself. When this Court posed a question to the counsel for the appellant as to whether the appellant issued any such notice to the 1st respondent, as required by Section 108 (f) of the Transfer of Property Act, for effecting repairs to the suit schedule property, the learned counsel for the appellant submitted that there is no material placed by the appellant to show that the appellant has issued any such notice to the 1st respondent. In view of the legal position referred supra, at this stage, the learned counsel for the appellant submits that the appellant will issue a notice to the 1st respondent as required by the provisions of the Transfer of Property Act, referred above, for effecting repairs to the suit schedule property. In the circumstances, the appellant is permitted to follow the procedure for effecting repairs to the suit schedule property, by issuing notice as indicated in Section 108 (f) of the Transfer of Property Act, and thereupon, if the 1st respondent fails to respond or has any objection to the effecting of repairs, the appellant is at liberty to avail the remedies available to him under law. With the above observations, the civil miscellaneous appeal is disposed of. No costs. __________________ JUSTICE N.V. RAMANA _____________________ JUSTICE B. N. RAO NALLA 16th November, 2010 IBL