[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “Bombay Rent Act”) has been preferred by the petitioner herein – original defendant – tenant to quash and set aside the impugned judgment and order dated 05.07.2005 passed by the learned Principal District Judge, Navsari in Regular Civil Appeal No.84 of 1998 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein – original landlord and quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit which was filed for eviction decree and consequently decreeing the suit directing the petitioner to handover the vacant and peaceful possession of the suit property. [2.0] That the respondent herein – original plaintiff instituted Regular Civil Suit No.166 of 1992 against the petitioner herein – original defendant – tenant in the Court of learned Principal Civil Judge (Senior Division), Navsari for eviction decree under Sections 12(1), 12(3)(1), 12(3)(b), 13(1)(b) of the Bombay Rent Act i.e. on the ground that the petitioner – tenant has made material alteration and made permanent structure without the consent of the landlord. It was the case on behalf of the plaintiff that the suit property bearing Municipal House No.444, New No.904 was consisting of two rooms, otta, bathroom which was let to the petitioner – original defendant (hereinafter referred to as “defendant”) at the monthly rent of Rs.160. It was the case on behalf of the plaintiff that without obtaining the permission of the landlord, the defendant has altered the premises by erecting permanent structure and has removed the front wall wherein windows and wooden doors were situated; also removed the supported middle wall and covered the space of otta by erecting new wall with rolling shutters at front side. It was also alleged that the defendant has also damaged the ceiling and converted the premises into a large shop. It was the case on behalf of the plaintiff that despite the notice neither the arrears of rent was paid nor the suit premises was vacated and therefore, the aforesaid suit came to be filed for eviction decree.
[2.1] That the said suit was resisted by the defendant by filing written statement at Exh.12. It was the case on behalf of the defendant that he was always ready and willing to pay the rent and also remitted the rent by money order but Ambaben, the representative of the original landlord refused to accept the rent. Therefore, he has deposited the entire amount of rent in the Court. The defendant also denied the allegation in respect of alteration of erecting permanent structure. Therefore, it was requested to dismiss the suit.
[2.2] That the trial Court framed issues at Exh.13. That behalf of the plaintiff, a power of attorney Jayantibhai Manabhai was examined. One Shri Jagdishbhai Manubhai Shah – Architecture and Engineer, who was appointed as Court Commissioner was also examined at Exh.64. He also produced the documentary evidence at Exhs.65 and 67 inclusive of his report – Court Commissioner's report at Exh.67. The plaintiff also examined one Ambaben Kalidas at Exh.72. That on appreciation of evidence, the learned trial Court dismissed the suit by judgment and decree dated 24.07.1998 by holding that the plaintiff has failed to prove the permanent erection and/or construction by the tenant by which there is a damage to the property.
[2.3] Feeling aggrieved and dissatisfied with the judgment and decree dated 24.07.1998 passed by the learned 2nd Joint Civil Judge (Senior Division), Navsari in Regular Civil Suit in dismissing the said suit and refusing to pass the eviction decree on the ground of arrears of rent as well as on the ground that the defendant – tenant has made permanent alteration/construction without the prior permission of the landlord and/or by the construction / alteration, there is a damage to the suit property, respondent herein – original plaintiff preferred Regular Civil Appeal No.84 of 1998 before the learned District Court, Navsari and the learned Principal District Judge, Navsari by impugned judgment and order dated 05.07.2005 has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit consequently passing the eviction decree under Section 13(1)(b) of the Bombay Rent Act i.e. on the ground that defendant – tenant has made permanent alteration / construction without the prior permission of the landlord.
[2.4] Feeling aggrieved and dissatisfied with the impugned judgment and order/decree passed by the learned Appellate Court, the petitioner herein – original defendant has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri Anshin Desai, learned advocate appearing on behalf of the petitioner – tenant has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is submitted that the learned Appellate Court has materially erred in passing the decree under Section 13(1)(b) of the Bombay Rent Act read with Section 13(1)(a) of the Bombay Rent Act. It is submitted that as such the plaintiff did not sought the eviction decree under Section 13(1)(a) of the Bombay Rent Act still the learned Appellate Judge has considered the same.
[3.1] It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner – tenant that the learned Appellate Court has materially erred in holding that the defendant – tenant has made permanent construction/alteration without the prior permission of the landlord. It is submitted that as such the defendant – tenant removed the windows/door which was on the front side and instead put the shutters which cannot be said to be making permanent structure damaging the property warranting the eviction decree under Section 13(1)(b) of the Bombay Rent Act. It is further submitted that as such there were no two rooms as alleged which has been converted into one room. It is submitted that as such the plaintiff has failed to point out and/or lead the evidence pointing out the position which was prevailing at the time when the suit shop was given on lease. It is submitted that as such there were no two separate rooms but one room was divided into two parts by putting the cupboards. Therefore, it is submitted that the learned Appellate Court has materially erred in passing the decree under Section 13(1)(b) of the Bombay Rent Act. It is submitted that as such the power of attorney of the landlord who has instituted the suit is interested in the property and therefore, as such he tried to see that the property from the first floor is damaged to harass the tenant.
[3.2] Shri Desai, learned advocate appearing on behalf of the petitioner – tenant has relied upon the decision of the Hon'ble Supreme Court in the case of Waryam Singh vs. Baldev Singh reported in (2003)1 SCC 59 as well as the decision of the learned Single Judge of this Court in the case of Laxmiben Mavjibhai, Smt. and Anr. vs. Shankarbhai Mulubhai reported in 1995(2) GLR 1320 on the issue of “permanent structure” and the decision of the Bombay High Court in the case of Alisaheb Abdul Latif Mulla vs. Abdul Karim Abdul Rahman Mulla and Ors. reported in AIR 1981 SC 253.
[3.3] Relying upon the decision of the Hon'ble Supreme Court in the case of Waryam Singh (Supra), it is submitted that as held by the Hon'ble Supreme Court in the said decision enclosing verandah by constructing walls and placing a rolling shutter in front, in themselves not sufficient to justify inference that value or utility has been impaired and therefore, no eviction decree can be passed. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner – tenant relying upon the decision of the learned Single Judge in the case of Laxmiben Mavjibhai, Smt. and Anr. (Supra) that when the tenant removed front door of the shop and fixed rolling shutter and placing the loft by inserting beams in the walls cannot be said to be a permanent structure warranting decree under Section 13(1)(b) of the Bombay Rent Act. Therefore, it is submitted that the learned Appellate Court has materially erred in decree under Section 13(1)(b) of the Bombay Rent Act.
Making above submissions and relying upon above decisions, it is requested to allow the present Civil Revision Application.
[4.0] Present Civil Revision Application is opposed by Shri Siddharth Dave, learned advocate appearing for Shri Ajay Mehta, learned advocate appearing on behalf of the original plaintiff – landlord. It is submitted that as such the suit premises was initially consisting of two rooms, otta and bathroom and the defendant – tenant has altered the same by erecting new permanent structure by making two rooms into one room and removing the front wall wherein the windows and the wooden doors were situated and also removed the supported middle wall and covered the space of otta by erecting new wall with rolling shutters at the front side without the prior approval and/or consent of the landlord and therefore, the learned Appellate Court has rightly passed the eviction decree under Section 13(1)(b) of the Bombay Rent Act. It is submitted that as such the tenant has also damaged the ceiling and converted the premises into a large shop. It is submitted that permanent construction has been proved from the evidence of Shri Jagdishbhai Manubhai Shah – Architecture and Engineer who was appointed as Court Commissioner. Therefore, it is submitted that as such the learned Appellate Court has not committed any error and/or illegality in passing the decree under Section 13(1)(b) of the Bombay Rent Act and consequently under Section 13(1)(a) of the Bombay Rent Act. It is submitted that as such the defendant – tenant has other three to four shops, one or two just opposite to the present suit shop. It is further submitted that even the adjacent plot belongs to the defendant – tenant which is vacant. Therefore, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard the learned advocates appearing for respective parties at length, considered and gone through the impugned judgment and order passed by both the Courts below as well as the evidence on record from the R & P which is available from the trial Court. It appears that the landlord prayed for the eviction decree on the ground that the tenant has erected/made permanent structure without the prior permission of the landlord by converting two rooms into one room removing the front and middle wall which were supporting the wall strengthening the first floor of the building and by erecting new front wall with rolling shutters removing the windows and wooden doors which were situated on the front wall and putting the shutters bringing the area of otta in the premises / shop and converting the premises into a large shop. The learned trial Court dismissed the suit so far as the arrears of rent is concerned and dismissed the suit insofar refusing the eviction decree on the ground that tenant has made permanent construction without the prior permission of the landlord. That the said decree has been upset by the learned Appellate Court and the learned Appellate Court on appreciation of evidence has held that the petitioner – tenant has made permanent structure and/or made the alteration without the prior permission of the landlord and has consequently passed the eviction decree under Section 13(1)(b) of the Bombay Rent Act. On considering the evidence on record as well as impugned judgment and order passed by both the Courts below, it appears that the plaintiff has successfully proved that the petitioner – tenant has made permanent structure / construction/alteration without the prior permission of the landlord warranting eviction decree under Section 13(1)(b) of the Bombay Rent Act. It has come on record that initially there was otta outside the suit shop and on the front wall there was a window and wooden door which has been removed and the petitioner – tenant has put up the shutters on the front bringing the area of otta in the suit shop and converting the same into a large shop. From the evidence it appears that as such there was already otta outside the suit shop. It also appears that the defendant has removed the supporting front wall and the middle wall due to which the ceiling has been damaged. On the first floor the aunty of the original plaintiff is residing. It is true that mere putting up the rolling shutters, removing the old door even by putting the beams by itself cannot be said to be putting a permanent structure/alteration warranting the eviction decree under Section 13(1)(b) of the Bombay Rent Act. However, in the present case, as stated herein above, the defendant – tenant has removed the front wall wherein window and wooden doors were situated and also removed the supported middle wall and covered the space of otta by erecting new wall with rolling shutters at front side and thus has converted the premises into a large shop. Considering the aforesaid facts and circumstances, it cannot be said that the learned Appellate Court has committed any error and/or illegal in passing the eviction decree, which calls for interference of the revisional jurisdiction of this Court. As such no illegality has been committed by the learned Appellate Court in allowing the Appeal and decreeing the suit.
[5.1] Now, so far as the decision of the Hon'ble Supreme Court in the case of Waryam Singh (Supra) relied upon by the learned advocate appearing on behalf of the petitioner – tenant is concerned, it is to be noted that in the said decision the Hon'ble Supreme Court was considering the provisions of U.P. Urban Rent Restriction Act, 1949 which provides that the landlord can seek eviction decree on the ground that the tenant has committed such acts as are likely to impair materially, the value or utility of the building or the rented land. Considering the aforesaid provisions when the tenant erected the verandah by constructing the wall and placing rolling shutter in front, the Hon'ble Supreme Court has held that by aforesaid act it cannot be said that the value of the utility has been impaired. The provision of E.P. Urban Rent Restriction Act, 1949 and the provision of Section 13(1)(b) of the Bombay Rent Act are different. Under the circumstances, the aforesaid decision will not be of any assistance to the petitioner. Even otherwise considering the aforesaid facts and circumstances and the permanent structure / construction made by the petitioner – tenant, it is proved that a case is made out for eviction under Section 13(1)(b) of the Bombay Rent Act. It is proved that tenant has made permanent structure / made alteration without the approval / permission of the landlord and has made the material changes in the suit premises even by bringing the otta in the suit shop and making the suit shop larger. Under the circumstances, aforesaid decision would not be of any assistance to the petitioner. Similarly on facts the decision of the learned Single Judge in the case of Laxmiben (Supra) as well as the decision of the Bombay High Court also would not be of any assistance to the petitioner and/or would not be applicable to the facts of the present case.
[6.0] In view of the above and for the reasons stated above, when a case has been made out under Section 13(1)(b) of the Bombay Rent Act and it has been proved that the petitioner – tenant has made permanent structure / alteration / changes in the suit premises without the approval and/or consent of the landlord, the learned Appellate Court CRA/290/2005 10/10 JUDGMENT has passed the decree under Section 13(1)(b) of the Bombay Rent Act. Under the circumstances, the present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Ad interim relief granted earlier stands vacated forthwith.
[6.1] At this stage, Shri Desai, learned advocate appearing on behalf of the petitioner has requested to continue the adinterim relief granted earlier so as to enable him to approach the higher forum. In the facts and circumstances of the case, more particularly, when the interim relief is in operation since 2005 and so as to enable the petitioner to approach the higher forum, the adinterim relief granted earlier is directed to be continued till 15th July 2012. Rule is discharged. No costs.
(M.R. Shah, J.) menon