RESERVED HIGH COURT OF UTTARANKHAND AT NAINITAL REVIEW APPLICATION NO. 886 OF 2007 IN SECOND APPEAL NO. 65 OF 2007 1. Smt. Shanti mamgain W/o Late Sri Nandaballabh Mamgain 2. Vijay Kumar Mamgain S/o late Sri Nandaballabh Mamgain 3. Manoj Kumar Mamgain S/o Late Sri Nandaballabh Mamgain All R/o Parsilal Sah Studio Bhawan, Mallital Naintal (U.A.) …..Appellants-Defendants Vs. Smt. Hansi Mamgain W/o late Sri Indramani Mamgain R/o Parsilal Sah Studio Bhawan Mallital, Nainital (U.A.) …..Plaintiff-respondents 4.4.2008 Hon’ble Rajesh Tandon, J. Heard Smt. Seema Sirohi, counsel for the applicant and Shri Siddartha Shah, counsel for the respondent. 2 2. Present review application has been filed for reviewing the order dated 6.6.2007 on the following grounds:- (A) Because the Hon’ble Court has failed to appreciate that in the allotment order the family name of the appellant was also mention. (B) Because the Hon’ble Court without framing and deciding the substantial question of law in the present second appeal has dismissed the appeal at the admission stage which is illegal and arbitrary in the eye of law. (C) Because in the year 1980 the premises in question was jointly allotted in the name of late Sri Indramani Mamgain and Sri Nandaballabh Mamgain who are the real brothers and both of their families use to live together. It is further stated here that Late Sri Indramani Mamgain being the karta of the Hindu united family the allotment was made in his name but in the allotment order specific reference is made with regard to the family of late Sri Nandaballabh Mamgain. (D) Because the portion in which the deponent is living is at the critical stage and at any moment it might collapse at any time which may cause great loss and harm to the deponent and this fact is very well known to the opposite party. (E) Because it is relevant to mention here that after the order of this Hon’ble High Court more than one month has passed by but nothing has ben 3 done by the opposite party to repair the damage portion which shows that the opposite party has no intention to repair and they are not in need and the civil suit was only filed just to harass the deponent. 3. The respondent has opposed the review application by filing the counter affidavit. The respondent has stated as under:- “10. That the contents of ground A of the review application are false misconceived and hence denied. In para 9 of the judgment dated 6.6.07 the allotment letter has been considered and hence the ground under reply is erroneous. 11.That the contents of ground B of the review application is misconceived and hence denied. Since no question of law was involved in the second appeal hence the Hon’ble Court rightly dismissed the second appeal by resort to provisions of Order 41 Rule 11 of the Code of Civil Procedure. 12. That the contents of ground C of the review application are totally false misconceived and hence denied. A bare perusal of the allotment order dated 31.3.1980 would show that the allotment order was made only in favour of Shri Indramani Mamgain. It is also incorrect to state that both the families of Shri Indramani Mamgain and Shri Nandaballabh Mamgain use to live together. It is also denied that Shri 4 Indramani Mamgain was the karta of HUF. In the allotment order only reference is made regarding the family of Shri Nandaballabh Mamgain and no further. It is reiterated that the tenancy was a single tenancy in the name of Shri Indramani Mamgain by virtue of the allotment order dated 31.3.80 and there cannot be splitting of tenancy so as to give rights to the appellants. 13. That the contents of ground D of the review application are false misconceived and hence denied. It is only the respondent who is entitled to carryout repairs under authority of the landlord and with the sanctioned approval of the Lake Development Authority. 14. That the contents of Ground E of the review application are misconceived and hence denied. It is stated that the deponent resides on the first floor and one Shri Naveen Chandra Gururan resides on the ground floor. It is only when Shri Naveen Chandra Gururani is ready and willing and has no objection to the repair/construction work, that the deponent would be in a position to get the repairs/constructions made.” 4. So far as ground No. A of the review application is concerned, the allotment letter clearly reveals that the premises in question was allotted in the name of Shri Indramani. In paragraph 9 of the judgment dated 6.6.2007, It has been observed as under:- 5 “9. A written statement was filed by the defendants and this fact has been admitted that the family of his brother Nanda Ballabh is also residing along with late Sri Indramani. A perusal of the allotment letter shows to the following effect: “Jh bUnzeuh ds vkokl gsrq uSuhrky esa dksbZ Hkou ugha gS rFkk muds ifjokj ds lnL;ksa dh la[;k 7 gS rFkk blds vfrfjDr mlds NksVs HkkbZ dk 6 O;fDr;ksa dk ifjokj Hkh mUgha ds lkFk laca) gS A vr% fookfnr Hkou Jh bUnze.kh ds Ik{k esa izfo"V fd;k tkuk mi;qDr izrhr gksrk gS A vr% fookfnr Hkou tks fd Jh yhyk/kj luoky }kjk fjDr fd;k x;k gS] dks Jh bUnze.kh] eSustj nqvk ,.M dks0 uSuhrky dks izfn"V fd;k tkrk gS A fu;ekuqlkj izns’ku vkns’k tkjh gS A” 5. As will appear from the allotment letter that the review-applicant has been found to have been residing alongwith the allottee. 6. In paragraph 13 of the judgment dated 6.6.2007, It has further been recorded that the allotment of the premises in concerned was made in favour of late Sri Indramani. Finding to that effect is quoted below:- “13. So far as the allotment is concerned, the same has been made in favour of late Sri Indramani.” 6 7. So far as ground no. B of review application is concerned, second appeal was filed against the judgment and decree dated 7.5.2007 passed by the Additional District Judge, Nainital in Civil Appeal No. 14 of 2006 by which the judgment and decree passed by the trial court for permanent prohibitory injunction was set aside. After hearing both the parties in the second appeal, I have dismissed the appeal on 6.6.2007. 8. The word ‘building’ has been used under Section 16 of the U.P. Act No. 13 of 1972 and has been defined under Section 3 (1) to the following effect:- “(i) “building” means a residential or non- residential roofed structure and includes— (i) any land (including any garden), garages and out-houses, appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.” 9. As will appear from the aforesaid definition, the building means the residential or non-residential structure. The said structure having been allotted in favour of the plaintiff as well as family members of the review applicant. Present application has been filed for getting the repair and renovation of the building. 10. Section 26 of the U.P. Act No. 13 of 1972 provides certain obligations of the landlord and tenant. It reads as under:- “26. Certain obligations of the landlord and tenant.—(1) No landlord shall without lawful authority 7 or excuse cut off, withhold or reduce any of the amenities enjoyed by the tenant. (2) The landlord shall be bound to keep the building under tenancy windproof and waterproof and, subject to any contract in writing to the contrary, carry out periodical whitewashing and repairs. (3) Subject to any contract in writing to the contrary, no tenant shall, whether during the continuance of the tenancy or after its determination, demolish any improvement effected by him in the building or remove any material used in such improvement, other than any fixtures of a movable nature. [Explanation.—The expression “material used in such improvement” includes the writing of an electrical fitting or a pipe pertaining to any water connection.] (4) The landlord shall give to the tenant a receipt for rent payable to any received by him.” 11. Section 28 of the U.P. Act No. 13 of 1972 on the other hand provides the enforcement of landlord’s obligation regarding repairs. Section 28 of the U.P. Act No. 13 of 1972 is quoted below:- “28. Enforcement of landlord’s obligation regarding repairs, etc.—(1) If the landlord fails to carry out whitewashing or repairs as required by sub-section (2) of Section 26, the tenant may, by notice in writing, call upon him to carry out the same within one month from the date of service of such notice. (2) Where the cost of the requisite whitewashing or repairs is likely to exceed the amount of [two months’ rent] in a year, then the tenant in his notic3e shall also intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of Section 6: [***] 8 (3) If the landlord fails to comply with the notice, the tenant may himself carry out the whitewashing or repairs at a cost not exceeding [two months’ rent] in a year and deduct the amount from the rent, and in any such case he shall furnish the account of the expenditure incurred to the landlord. (4) Where the tenant claims that the building requires whitewashing or repairs to such extent that the cost thereof is likely to exceed the amount of [two months’ rent] in a year, hereinafter in this section referred to as “major repairs”, and the landlord either declines his responsibility to carry out the same or fails to comply with the notice, the tenant may apply to the prescribed authority for an order under sub-section (5). (5) The prescribed authority on receiving an application under sub-section (4) may, after giving an opportunity of hearing to the parties-- (a) either eject the application; or (b) require the landlord to carry out the requisite major repairs within such period as may be specified in the order, and on his failure to do so, permit the tenant to carry out those repairs at a cost not exceeding such amount (which shall not be more than the amount of two years’ rent) and within such period as may e specified in the order. (6) Where in pursuance of an order under sub- section any major repairs are carried out by the tenant, he shall furnish an account of the expenditure to the prescribed authority, which shall certify the amount recoverable by the tenant, and thereupon such amount, unless paid or otherwise adjusted by the landlord, may be deducted by the tenant from the rent is monthly instalment not exceeding twenty-five per cent of one month’s rent, and in any such case, the enhancement of rent under Section 6 shall come into effect only from the 9 month following the month in which the cost is fully recovered by the tenant. (7) No appeal or revision shall lie from any order of the prescribed authority under sub-section (5) or sub- section (6) which shall be final.” 12. As will appear from the record that the necessary permission has been granted by the landlord on 21st December, 1998. The said permission has been approved by the Lake Development Authority on 15th April, 1999. Therefore, the occupants named in the allotment order are at liberty to get the repairing work carried out. 13. In view of the above, there will be no harm if the entire building is repaired or renovated in accordance with permission granted by the landlord and approved by the Lake Development Authority by the occupants. The appellants apprehend that the plaintiff-respondent will dislodge the appellants forcibly, the apprehension is wholly imaginary in as much as once the names of the predecessors of the appellants are mentioned in the allotment order, the appellants right to remain in possession cannot be defeated except in accordance with law. 14. So far as ground no. C of the review application is concerned, a perusal of the allotment order clearly reveals that allotment order was passed in favour of late Sri Indramani. Reference has also been made with regard to the family of late Sri Nandaballabh Mamgain in the order itself. 10 15. So far as ground Nos. D and E are concerned, I have passed the following observation in the judgment dated 6.6.2007 :- “21. In view of the above, there will be no harm if the entire building is repaired or renovated in accordance with permission granted by the landlord and approved by the Lake Development Authority. The apprehension of the appellant is that the plaintiff-respondent wants to dislodge the appellants forcibly is not borne out from the facts of the record.” 16. In view of the aforesaid, it is further made clear that the applicants may repair/construct the premises in question after getting permission from the landlord and due approval of the Lake Development Authority. 17. In view of the above, the appellants being in possession, they cannot be dispossessed except in accordance with law. 18. Subject to the aforesaid observations, review application is dismissed. No order as to costs. (Rajesh Tandon, J. ) 4.4.2008 Avneet