IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1072/2008 IN WRIT PETITION NO.4674/2005 Smt.Malti Keshav Pimpalkhare PETITIONER VS. Shri.Narendra Waman Thanekar RESPONDENT (deceased by heirs) Mr.R.A.Karale advocate for the petitioner Mr.Abhijit Khandarkar for respondent CORAM :A.M.Khanwilkar,J. Date : 15/7/2008 P.C. The Respondents/Landlords have taken preliminary objection regarding the maintainability of this application , in view of section 28 of Bombay Rent Act .Section 28, contends counsel for the Respondents , governs cases where the dispute is in relation to the recovery of rent or possession of premises. That is not the purport of this application . Counsel for the landlords then contends that the relief claimed in this application is not to address the issue under the provisions of Rent Act as such .This submission does not commend to me. For , the dispute before this Court emanates from the relief of eviction , which action was instituted by the landlord before the Lower Court and the decree of eviction is now made subject matter of challenge in writ petition which is already admitted. During the pendency of this proceeding the tenant intends to carry out nominal 2 repairs to the suit premises such as replacing the broken tiles , covering roof .That issue can be conveniently addressed in the present proceeding. 2] Counsel for the landlord would then contend that section23 of the Act contemplates that it is the duty of the landlord to keep the premises in good tenantable repair and the tenant was obliged to give notice to the landlord to carry out that obligation .This arguments deserves to be stated to be rejected. In as much as the tenant has already brought to the notice of the landlord the condition of the premises which are very old. The landlord having failed to take remedial steps to carry out the repairs ,the tenant was left with no option but to approach this Court for this limited relief .In my view , this argument cannot preclude the court from aceeding to the request of the tenant which is very reasonable and for beneficial enjoyment of the suit premises during the pendency of the proceeding. 3] In the circumstances , this application is allowed to the limited extent that the tenant is permitted to carry out repairs in respect of broken tiles covering the roof of premises .It will be open to the tenant to replace all the roof tiles for ensuring that proper repair is provided to the suit premises. The cost so incurred by the tenant will be without prejudice to the rights and contentions of the parties in the pending proceeding . The tenant after incurring such 3 expenses may place on record all the relevant documents on affidavit to indicate the total cost incurred by him for carrying out repair of the roof of the suit premises. At the final hearing of the writ petition appropriate direction will be issued regarding reimbursement thereof if any . Ordered accordingly. (A.M.Khanwilkar,J.)