1.0 As common question of law and facts arise in both these Civil Revision Applications and as they are between the same parties, both these revision applications are heard, decided and disposed of together by this common judgment and order.
2.0 Civil Revision Application No.1842 of 1998 has been preferred by the petitioners hereinoriginal defendants to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad dated 3.11.1998 passed in Regular Civil Appeal No. 49 of 1993, by which the learned Appellate Bench has allowed the said appeal preferred by the respondents hereinoriginal plaintiffslandlord by quashing and setting aside the judgment and decree passed by the learned Small Causes Court, Ahmedabad passed in HRP Suit No.3489 of 1984 dismissing the suit and consequently passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as “Bombay Rent Act”) i.e. on the ground that the petitioners original defendants tenants have put up the permanent construction without prior approval/ consent of the landlord which has caused permanent damage to the property.
2.1. Civil Revision Application No.1843 of 1998 has been preferred by the very petitioners original defendants tenants under Section 29(2) of the Bombay Rent Act to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad dated 3.11.1998 passed in Civil Appeal No.48 of 1993 by which the learned Appellate Bench has allowed the said appeal preferred by the respondents hereinoriginal plaintiffs and has quashed and set aside the judgment and decree passed by the learned Small Cause Court, Ahmedabad passed in HRP Suit No. 3488 of 1984 dismissing the suit and consequently granting eviction decree in favour of plaintiffs under Sections 13(1)(a) and 13(1)(b) of the Rent Act holding that defendantstenants have erected / put up the permanent structure / construction without prior approval / consent of the landlord and said construction has damaged the suit property and said construction cannot be removed without causing damage to the property.
3.0 At the outset, it is required to be noted that the dispute is with respect to two different properties bearing survey no. 125 and M.C No.2728 and premises being Survey No.124 and M.C. No.2729 adjacent to each other situated at Ahmedabad.
4.0 Facts of the HRP Suit No. 3488 of 1984 ( Civil Revision Application No.1843 of 1998).
4.1. That the original plaintiffs instituted HRP Suit No.3488 of 1984 against the tenants original defendants for eviction decree / recovery of possession under Sections 13(1)(a) and 13(1) (b) of the Bombay Rent Act. It was the case on behalf of the plaintiffs that premises bearing Survey No. 125 and M.C. No.2728 having iron sheets roof and consisted of ground floor and first floor, were let by their predecessor deceased Chandulal Keshavlal to one Madhavlal Ramdas Patel by a registered rent note dated 17.12.1969. That the said Madhavlal Ramdas died in the year 1975. The sons of the deceased Madhavlal who were defendant nos. 2 and 3 are doing the business of hardware etc. in the suit shop in the name and style of defendant no.1 M/s. Madhavlal Ramdas and the defendant no.4 is the partner in defendant no.1 firm. That the rent of suit shop is of Rs.73 per month and the taxes are to be borne by the defendantstenants. It was alleged that the defendants are tenants in arrears of rent for the period of more than six months. It was further alleged that the defendantstenants have carried out the material alteration in the suit premises which are of permanent nature and so they are liable to be evicted. It was submitted that the “Otta” in front of shop is removed; that the wooden frame and doors are removed; that the defendants have fixed iron shutters instead of wooden doors; that the defendants have demolished the “Meda” portion (first floor) and have fixed iron girders and angles by damaging the walls; that the defendants have constructed second floor; that new staircases installed; that the roof which was consisted of iron sheets and wooden planks is replaced by cement concrete slab; that the defendants have constructed new walls of the second floor; that the defendants have carried out the permanent alterations without consent of the plaintiffs or even obtaining sanction from Ahmedabad Municipal Corporation. It was also the case on behalf plaintiffs that the suit shop is required by the plaintiff for personal use and occupation reasonably and bonafide. Therefore, it was requested to pass eviction decree on the ground of arrears of rent; tenants carrying out permanent alteration without the consent of the plaintiffs and erecting permanent structure which cannot be removed without causing damage to the property and also on the ground that the suit shop is required for their personal use and occupation reasonably and bonafide.
4.1. That the suit was resisted by the defendants by filing written statement at Exh.18. It was the case on behalf of the tenants that they had given notice by RPAD to the plaintiffs to get the shop repaired; that repairs were required and so they themselves have carried out as plaintiffs failed to do; that there was loft on the first floor having same height which was just like first floorMeda; that they have not carried out any permanent structure and have only repaired the premises; that by such repairs, the premises is not damaged; that the repairs can be easily removable without causing damage to the premises; that plaintiffs do not require the premises reasonably and bonafide. The defendants denied that the plaintiffs require the suit premises reasonably and bonafidely for their personal use and occupation. Therefore, it was requested to dismiss the suit.
5.0 Facts of the HRP Suit No. 3489 of 1984 ( Civil Revision Application No.1842 of 1998).
5.1. That original plaintiff landlord Champaklal Chandulal Sukhadia instituted HRP Suit No.3489 of 1984 as power of attorney of his mother, brother and sister who were plaintiffs in the suit for eviction decree / recovery of possession against the tenantsoriginal defendants also on the aforesaid ground as stated above in HRP Suit No.3488 of 1984, which were with respect to another premises bearing Survey No.124 and M.C No.2729 situated adjacent to the above said property being Survey No.125 and M.C No.2728. It was the case on behalf of the plaintiffs that both the aforesaid premises are situated to adjacent to each other and there was no partition wall between them. The premises were also let to the said defendants at the same rent by registered rent note. It was the case on behalf of the plaintiffs that defendants tenants have made alteration and construction of permanent nature in the said suit premises. Therefore, it was requested to pass eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act also. Therefore, it was requested to pass eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act. The said suit was also resisted by defendants by filing written statement at Exh.18 denying the allegation in the suit.
5.2. That the learned trial Court raised the common issues in both the suits at Exh.20 and at the request of parties to the suits by the pursis Exh.33, both the aforesaid suits were consolidated and the evidence in both the suits were recorded in HRP Suit No. 3488 of 1984.
5.3. That on behalf of the plaintiffs, Shri Chmpaklal Chandulal Sukhadia came to be examined as PW No.1 at Exh.37. He also produced the documentary evidences. The Court Commissioner was also appointed to prepare the panchnama and Court Commissioner prepared the panchnama and sketch of the existing situation of the suit on that day. On behalf of the plaintiffs one Balavant Gajjar was examined at Exh.63, who was serving in the Ahmedabad Municipal Corporation, in support of the case of the plaintiffs that the Ahmedabad Municipal Corporation issued notice under Section 260 of the BPMC Act with respect to the illegal construction made by the tenant. He also produced the documentary evidences such as notice issued by the Ahmedabad Municipal Corporation.
5.4. The plaintiffs also examined one Ms. N.F. Momin, the Court Commissioner appointed in HRP Suit No.2104 of 1984 who also produced his report and sketch prepared by her, the same were exhibited at Exhs. 69 & 70 respectively.
5.5. On behalf of the defendants, Shri Natvarlal Madhavlal Patel came to be examined at Exh.72. That the defendants also examined one Navnit Shivabhai Patel at Exh.73 and Shri Bechardas Nathalal Patel at Exh.74 in support of their case that they have not made any new construction on the second floor but they have only carried out necessary repairs in the suit property.
5.6. That learned trial Court Small Causes Court, Ahmedabad by common judgment and order dated 6.4.1993 dismissed both the suits and refused to pass eviction decree by observing that the defendants have not made or erected a structure / alteration in the suit premises which cannot be removed without causing serious damage to the premises and consequently dismissed the aforesaid suits and refused to pass eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act and the ground of arrears of rent was not pressed. The learned trial Court also held the issue with respect to the suit premises required by the landlord for their personal occupation and use reasonably and bonafide in negative.
5.7. Being aggrieved and dissatisfied with the common judgment and decree dated 6.4.1993 passed by the learned Small Cause Court, Ahmedabad passed in HRP Suit Nos. 3488 of 1984 and 3489 of 1984 original plaintiffs landlord preferred Regular Civil Appeals Nos. 48 of 1993 and 49 of 1993 before the learned Appellate Bench of the Small Causes Court at Ahmedabad and learned Appellate Bench of the Small Causes Court at Ahmedabad by common judgment and order dated 3.11.1998 has allowed the aforesaid appeals by quashing and setting aside the common judgment and decree passed by the learned trial Court passed in HRP Suit Nos.3488 of 1984 and 3489 of 1984 dismissing the same and consequently decreeing the suits by passing eviction decree against the petitioners herein original defendants under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act.
5.8. Feeling aggrieved and dissatisfied with the common judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad dated 3.11.1998 passed in Regular Civil Appeals No. 48 of 1993 and 49 of 1993, petitioners herein original defendantstenants have preferred the present Civil Revision Applications under Section 29(2) of the Bombay Rent Act.
6.0. Shri Gandhi, learned advocate for the petitioners original defendants has vehemently submitted that learned Appellate Bench of the Small Causes Court has materially erred in passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suits which were on appreciation of evidence, which were not required to be interfered with by the learned Appellate Bench.
6.1. It is further submitted by Shri Gandhi, learned advocate for the petitioners original defendants that learned Appellate Bench has materially erred in holding that tenants have made material alteration in the suit premises and / or made permanent structure which cannot be removed without causing damage to the property. It is submitted that lower Appellate Court has materially erred in holding that tenants have made construction on second floor which is totally new construction, which is of permanent nature. It is submitted that learned lower Appellate Court has materially erred in holding that putting up the guarders and the”T” Angles for covering the first floor would amount to permanent alteration.
6.2. It is further submitted that learned lower Appellate Court has failed to appreciate and consider that as such there is no evidence led by landlord as to what was the original position of the building. It is submitted that even in the rent note and sale deed there is no description of the property except a reference to the effect that the property is a storied property and once it is found that the property is constructed with ground floor and first floor and others then in the absence of evidence, the lower Appellate Court cannot come to the conclusion that there was no second floor.
6.3. It is further submitted by Shri Gandhi, learned advocate for the petitionerstenants that lower Appellate Court has failed in not accepting the case on behalf of the tenants in his deposition that the property had first storey and a loft over it was also constructed which had the sufficient height where a man can stand and as this was in dilapidated condition, therefore, the same was required to be repaired.
6.4. It is further submitted that lower appellate Court has failed to appreciate and consider and erred in coming to the conclusion that removal of the wooden planks and replacing the same with the help of gurders is a permanent alteration. It is submitted that learned appellate Court ought to have appreciated that as such removing wooden planks which were 100 years old and replacing the same with the help of gurders is nothing but, an improvement of the property as scuh and therefore, it cannot be amount to a permanent change.
6.5. It is further submitted that the lower appellate Court has erred in holding that the loft has been constructed and converted into a room as a second floor and therefore, it amounts to permanent construction.
6.6. It is further submitted by Shri Gandhi, learned advocate for the petitionerstenants that lower appellate Court has not properly appreciated the reasons for repair and / or making alteration. It is submitted that as such the property was in dilapidated condition and it was required to be repaired and as the landlord did not get it repaired and therefore, the petitioners only repaired the construction by replacing the wooden doors by putting iron shutters, installing window, lowering down land of the flooring of the ground floor and removal of the hanging wooden planks, which cannot be said to be material alteration or changes of permanent nature. Therefore, it is submitted that the lower appellate Court has materially erred in passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act.
6.7. Shri Gandhi, learned advocate for the petitioners tenants has further submitted that even the plaintiffs did not examine the expert to prove that construction / structures which is made by the tenant cannot be removed without causing damage to the property. Therefore, it is submitted that in absence of any expert opinion the lower Appellate Court has materially erred in passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act. In support of his above submissions, he has relied upon the decision of the learned Single Judge in the case of Bhavarlal Ganeshram vs. Jasiben Wd/o Ishwarlal Ramchand reported in 2006(3) GLR 2230. He has also relied upon the decision of the learned Single Judge in the case of Babubhai Bhurabhai since deceased by his heirs and Lrs Jagjivan Babulal and another vs. Parmanand Nathalal Vaghelal and Another reported in 1990(2) GLH 19.
6.8. Shri Gandhi, learned advocate for the petitioners tenants has also relied upon the decision of the learned Single Judge in the case of Laxmiben Mavjibhai & Others vs. Shankarbhai Mulabhai reported in 1995(2) GLH 13 by submitting that as held by the learned Single Judge in the aforesaid decision removing of wooden door and installing iron rolling shutter, Insertion of big nails in the weather shed; fixing wooden loft by inserting wooden beams are minor alterations for more beneficial enjoyment of the premises and therefore, no eviction decree can be passed under Section 13(1)(a)of the Bombay Rent Act on the ground of erecting the permanent structure.
6.9. Shri Gandhi, learned advocate for the petitioners tenants has also relied upon the decision of the learned Single Judge in the case of Patel Ishwarbhai Lallubhai vs. Patel Parshottam Ranchhodbhai reported in 1967 GLR 665 as well as another decision of the learned Single Judge in the case of Deviprasad Vrajlal Kachiya vs. Chhotalal Narottamdas Panchal & Anr reported in 193(2) GLH 1019 in support of his prayer to allow the present Civil Revision Applications and to quash and set aside the impugned judgment and order passed by the lower Appellate Court and to restore the judgment and decree passed by the learned trial Court.
7.0. Both these Civil Revision Applications are opposed by Shri R.D. Bhatt, learned advocate for the original plaintiffs landlords. It is submitted that as such common judgment and order passed by the learned Appellate Bench of the Small Causes Court is on appreciation of evidence which is not required to be interfered with by this Court in exercise of powers under Section 29(2) of the Bombay Rent Act. Relying upon the decision of the Hon'ble Supreme Court in the case of Venkatlal G. Pittie and Another vs. Bright Brother (Private) Limited reported in 1987(2) GLH 300, it is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision that findings of fact given by the learned lower Appellate Court unless found to be perverse and patently unreasonable cannot be interfered with by the High Court in exercise of supervisory jurisdiction.
7.1. Shri R.D. Bhatt, learned advocate for the original plaintiffslandlords has also relied upon the decision of the Hon'ble Supreme Court in the case of Patel Valmik Himatlal and others vs. Patel Mohanlal Muljibhai (dead) through Lrs reported in AIR 1998 SC 3325 as well as decision of this Court in the case of Bhupendra Tapubhai Padia & ors vs. Prataprai Popatlal Soneji reported in 2011(2) GLR 1107 with respect to the scope of revision by the High Court under Section 29(2) of the Bombay Rent Act. It is submitted that as held by the learned Single Judge in the aforesaid decision the High Court cannot substitute its own findings on a question of fact findings recorded by the Courts below on re appraisal of evidence.
7.2. Shri R.D. Bhatt, learned advocate for the original plaintiffslandlords has further submitted that considering the fact that defendants tenants have constructed second floor newly by using materials like cement bricks, concrete etc. and have replaced the roof of iron sheets and wooden planks by the slab of iron gurders and planks and cement concrete and have also made walls upon the slab and installed of the staircases which goes to the terrace, the learned lower appellate Court has rightly held that tenants have erected new construction on the second floor which is of a permanent nature and therefore, they are liable to be evicted under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act. It is submitted that the aforesaid findings are on reappreciation of evidence in exercise of appellate jurisdiction which are not perverse and / or patently unreasonable. It is submitted that in the facts and circumstances of the case and even considering the panchnama prepared by the Court Commissioner and even the deposition of the tenant himself the aforesaid is admitted and therefore, merely because expert was not examined the impugned judgment and order passed by the learned lower Appellate Court is not required to be note quashed and set aside. It is submitted that as rightly held by the lower appellate Court looking to the material used in the offending structure on second floor no expert opinion is required to be assist the conclusion that the offending structure is of permanent nature and it has incurred liability of the defendants for ejectment.
7.3. Relying upon the above decisions and by making above submissions, it is requested to dismiss the present Civil Revision Applications.
8.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as evidence on record from the Record and Proceedings received from the learned trial Court. At the outset, it is required to be noted that learned lower appellate Court has passed the eviction decree against the petitioners herein original defendantstenants under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act i.e. on the ground that the tenants have erected / made permanent structure without prior permission of the landlord which has caused the damage to the property and / or which cannot be removed without causing serious damage to the properties. Therefore, while considering the above, first of all the Court is required to consider nature of construction / permanent structure / alteration made by the tenants. It appears from the evidence on record that suit premises was consisting of ground floor and first floor having iron sheet roof and there was “otta” situated in front of the shop. That there were iron sheet on the roof of each of the shop. That in the ceiling of the ground floor i.e. in the flooring of the first floor there were wooden planks. It appears that the tenants have removed Otta on the ground of shop by lowering down the land. That the tenants have replaced the wooden doors by putting iron shutters, installed windows, lowered down land of the flooring of the ground and remove the hanging wooden planks and have also constructed second floor newly by using material like cement bricks, concrete etc. and have replaced the roof of iron sheets and wooden planks by the slab of iron gurders and planks and cement concrete and have also made walls upon the slab and installation of the staircases which goes to the terrace. Thus, the defendants have demolished “Meda” and erected second floor. It is also required to be that as such the aforesaid alterations have been made by the tenants not only without prior approval / consent of the landlord but even without sanction from the Ahmedabad Municipal Corporation and in fact Ahmedabad Municipal Corporation served notice under Section 260 (1) of the BPMC. It is required to be noted that so far as replacement of wooden door by putting iron shutters, installation of window, lowering down land of the flooring of the ground floor and removal of the hanging wooden planks etc. are considered to be minor changes by the lower Appellate Court and it is held that by the aforesaid it cannot be said that material alteration or changes of permanent nature has been made on which plaintiff is entitled to get the decree for eviction under Section 13(1)(a) and 13(1)(b) of the Bombay Rent Act. However, considering the fact that flooring of the first floor is made by cement slabs and considering the fact that the defendants have constructed entire second floor new by using materials like cement, bricks, concrete etc. and have replaced the roof of iron sheets and wooden planks by the slab of iron gurders and planks and cement concrete and have also made walls upon the slab and installation of the staircases which goes to the terrace, the learned lower appellate Court has rightly held that tenants have erected new construction on the second floor which is of a permanent nature and therefore, they are liable to be evicted under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act. Considering the aforesaid facts and circumstances and the aforesaid construction of permanent in nature, it cannot be said that the lower appellate Court has committed any error and / or illegality in passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Bombay Rent Act i.e. on the ground that the tenants had made construction of permanent nature / material alteration without prior permission of the landlord and the said construction cannot be removed without causing serious damage to the property.
9.0 Now, so far as contention made by the learned advocate for the petitioners relying upon the decision of the learned Single Judge in the case of Bhavarlal Ganeshram (supra) that as plaintiff did not examine any expert witness to prove that construction is such which cannot be removed without damaging the property and therefore, decree of possession could not have been granted by the lower Appellate Court is concerned, as rightly observed by the learned lower appellate Court considering the nature of permanent construction made by the tenant i.e. constructing entire second floor new by using materials like cement, bricks, cement concrete etc. and have replaced the roof of iron sheets and wooden planks by the slab of iron gurders and planks and cement concrete and have also made walls upon the slab even if the expert is not examined still the decree for eviction can be passed.
10.0 Now, so far as reliance placed upon the decision of the learned Single Judge in the case of Patel Ishwarbhai Lallubhai (supra), on facts the said decision would not be applicable to the facts of the present case. Even considering the nature of construction made by the petitioners referred to hereinabove the said decision of the learned Single Judge in the case of Babubhai Bhurabhai since deceased by his heirs and Lrs Jagjivan Babulal (supra) as well as in the case of Laxmiben Mavjibhai (supra) would not be of any assistance to the petitioners. Considering the construction which is of a permanent nature made by the petitioners herein referred to herein above, it cannot be said that they are minor alterations of removing of the wooden door and installing iron rolling shutter by inserting of big nails in the weather shed only.
11. Under the circumstances, as such no illegality has been committed by the learned lower Appellate Court in passing eviction decree under Sections 13(1)(a) and 13(1)(b) of the Rent Act which call for the interference of this Court in exercise of revisional jurisdiction under Section 29(2) of the Rent Act.
12. In view of the above and for the reasons stated above, both the Civil Revision Applications fail and they deserves to be dismissed and are accordingly dismissed. Rule discharged. Ad interim relied granted, stands vacated forthwith. No costs.
13. At this stage, Shri Gandhi, learned advocate for the petitioners has requested to continue the interim relief granter earlier for some reasonable time so as to enable the petitioners to approach the Higher Forum which is opposed by learned advocate for the respondents. However, in the facts and circumstances of the case and so to enable the petitioners to challenge the present order before the Higher Forum, it is directed that judgment and decree passed by the learned Appellate Court confirmed by this Court not to be executed till 20th September 2012.
“kaushik”
sd/ ( M. R. Shah, J. )