Dattatray Trimbak Devale vs Appa Malhari Jagtap And Anr
2017 Latest Caselaw 4386 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                   WRIT PETITION NO. 6391 OF 1999 
                                         
   Dattatray Trimbak Devale
   Advocate and Landlord
   Age 36 years  Adult Occ: Service,
   Residing at:- House No.365,
   Raviwar Peth,
   Pune 411 002.                                                 ...Petitioner


           Versus

   1.  Appa Malhari Jagtap
        Age 55 years,
        Occ: Barber's Shop
        Residing at:- 1861,
        Datta Peth, Karmala,
        Dist:- Solapur.

   2.  The Learned Additional
        District Judge,
        Solapur.                                             ...Respondents


   Dr. Sadhana Mahashabde a/w. Ms. Jasmin Shah 
   for the Petitioner
   Mr. Rupesh K. Bobade for the Respondent No.1.


                               CORAM:       G.S. KULKARNI, J.

                               DATED:       12th  July, 2017







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   JUDGEMENT:-

1. This is a petition of an unsuccessful landlord who has

lost before both the forums below. The petitioner/landlord

had instituted Civil Suit No.62 of 1993 against the

respondent/tenant 22seeking recovery of possession of the

suit premises on the ground under Section 13(1) (a) (b)

(installation of a permanent structure) and (e) Sub-section 4

of the Bombay Rents Hotel and Lodging House Rates Control

Act, 1947 (for short 'the Rent Act'). The tenanted premises in

question is a shop bearing Municipal Home No. 1861, situated

at Dutta Peth, Karmala, District Solapur.

2. The case of the petitioner invoking Section 13 (1) (b) of

the Rent Act, was firstly of the respondent installing a mosaic

flooring on the existing stone flooring, secondly of removal of

two ottas (platforms) inside the suit shop constructed with

stone ladi for seating of customers and covering the same with

plywood, thirdly removal of a teak wooden plank on the road

side and constructing a cement otta (platform) by widening

premises on the road side without permission of the municipal

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council and thereby removing of the existing wooden plank

and lastly of removal of fittings and making holes in the wall

to make a partition. As regards, the issue under Section 13(1)

(e) of the respondent subletting the premises, it was the

petitioner's case that certain persons were employed by the

respondent on commission basis to undertake work in the suit

shop and therefore it amounted to subletting.

3. The respondent appeared before the trial Court and

defended the suit denying the contentions of the petitioner. It

was a case of the respondent that he had not undertaken any

construction/alteration of a permanent nature. It was the

respondent's case that as the existing flooring had become old,

he had installed mosaic tiles on the existing flooring without

damaging the existing floor. As regards, installing plywood

and sunmica on the existing otta (platform) inside the shop it

was stated that, this was done for the benefit of customers

and better use of the premises. As regards, the construction of

otta (platform) on the municipal gutter, it was pointed out

that, the wooden plank which was used to enter the shop had

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become old and worn-out and thus a cement platform was

required to be installed. As regards subletting, the respondent

denied the case of the petitioner to contend that there was no

subletting and that the claim of the petitioner in that regard

was completely unsubstantiated.

4. On these rival contentions, the parties went on trial,

they examined their respective witnesses. The learned trial

Judge appreciating the evidence as placed on record did not

accept the petitioner's case that, there was alteration or

construction of a permanent structure in the works as

undertaken by the respondent. A finding based on evidence

was recorded that, as the existing floor was not in a good

condition, mosaic tiles came to be installed, also such tiles

were necessary to be installed for fixing new chairs for the

business of hair cutting saloon, as the existing chairs had

become old. As regards, the contention that there is a

construction of new otta (platform), the same was also

repelled by observing that it was not a work of a permanent

nature and what was installed was only a plywood base with

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sunmica. As regards installing a cement platform on the road

side, it was observed that, it was not a work inside the suit

shop, but mere removal of old wooden plank at the entry of

the shop and replacing it by cement platform to enable its

customers to enter the suit shop safely. As regards, the

contention of the petitioner that there was subletting, the

same was also not accepted as there was no evidence brought

on record to establish, that the respondent was receiving any

rent from subletting. It was observed that, merely because

some person is working in the shop would not be sufficient to

hold that it tantamounts to subletting the premises. It was

also observed that, merely because the respondent was not

seen in the shop, it would not be sufficient to conclude that,

there was subletting of the suit shop in favour of some third

persons. Moreover, a finding is recorded that the respondent

had spent his Rs. 30,000/- for the renovation of suit premises

for purchasing of new chairs to be used in the hair cutting

saloon. Accordingly, the learned trial Judge dismissed the suit

with costs.

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5. Being aggrieved by the judgement and order passed by

the learned trial Judge dismissing the suit, the petitioner

approached the appellate Court namely the Court of

Additional District Judge, Solapur. The learned appellate

Judge considered the findings as recorded by the learned trial

Judge and after verifying that these findings were based on

evidence did not accept the case of the petitioner that any

ground for eviction of the respondent under Section 13(1) (a)

(b) and (e) was made out. The learned appellate Judge

observed that, it was clear that the respondent had placed

mosaic tiles on the existing tiles and also installed plywood on

the wall and fixed mirrors for the customer and had also

installed plywood and sunmica on the existing platform. It

was observed that, all these works were not of a nature which

can be called as installing a permanent structure. It was also

observed that, the respondent being a barber by profession, he

had made renovation of the shop and by doing such work, the

respondent had infact added to the betterment of the

premises. As regards, the contention of subletting of the suit

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premises, the learned appellate Judge observed that, it was

clear from the evidence, the respondent did not transfer any

right to of any nature in respect of suit premises in favour of a

third party. The learned appellate Judge thus dismissed the

petitioner's appeal. On this background, the petitioner is

before this Court.

6. Learned counsel for the petitioner in assailing both the

judgements would submit that there is a exfacie error for the

Courts below, taking a view and there was no alteration of a

permanent nature in the respondents installing a mosaic tile

flooring which according to the learned counsel would

squarely fall within the purview of Section 13(1) (b). The

learned counsel for the petitioner would submit that, the

"Explanation" below Sub-section (1) (b) of Section 13 is

explicit, which does not cover the installation of a new

flooring and thus the said work as undertaken by the

respondent amounts to creating a permanent structure. To

appreciate the contention on behalf of the petitioner, it would

be appropriate to note the contents of the "Explanation"

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below Sub-section (1) (b) of Section 13, as relied upon on

behalf of the petitioner which reads thus:

Section 13. When landlord may recover possession:

(1) Nothwithstanding anything contained in this Act [but subject to [the provisions of sections 15 and 15A]], a landlord shall be entitled to recover possession of any premises if the Court is satisfied---

(a) ---------

(b) that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure,

"Explanation:- For the purposes of this clause, the expression "permanent structure" does not include the carrying out of any work with the permission, wherever necessary, of the local authority, for providing a wooden partition, standing cooking platform in kitchen, door, lattice work or opening of a window necessary for ventilation, a false ceiling, installation of air-conditioner, an exhaust outlet or a smoke chimney."

7. Thus the 'Explanation' (supra) to the provision indicates

that, a permanent structure would not include carrying out of

any work which could be with the permission wherever

necessary of the local authority for providing a wooden

partition, standing cooking platform in kitchen, door, lattice

work or opening of a window necessary for ventilation, false

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ceiling and installation of air conditioner or exhaust or smoke

chimney. In any event testing the said construction as

undertaken by the respondent on the legislative mandate

namely of the Explanation to Section 13 (1) (b) (supra), the

work of installation of a new flooring certainly becomes

comparable to the works like installation of a kitchen platform

for cooking, making of door or opening of a window as the

Explanation provides is not substantiated in nature in any

manner altering the form or the structure of the building. It is

definitely in the nature of minor repairs for better enjoyment

and use of premises.

8. Applying the above test it may be observed, there is a

clear finding of fact on evidence, as recorded by the trial

Judge and also examined and accepted by the learned

appellate Judge, that the flooring in question has been

installed on the existing flooring which itself indicates that it

is not of a permanent nature. Thus, the contention as urged

on behalf of the petitioner that, as the Explanation to Section

13(1) (b) (supra) does not provide for installation of flooring,

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Section 13(1) (b) would stand attracted in favour of the

petitioner to seek a decree of eviction, certainly cannot be

accepted. Similar is the case in regard to the other alleged

alterations namely installation of a plywood and sunmica on

an existing platform inside the shop and making of a hole in

the wall for a wooden partition. In regard to the removal of

the wooden plank at the entry of the shop and replacing the

same with a cement platform in the first place, such installing

is a work not of a permanent nature as also it is outside the

suit premises. There is nothing on record which would

indicate that such installation would in any manner materially

alter the suit premises in the form, front or structure of the

suit shop. In my opinion, even on these grounds, the findings

as recorded by the Courts below and as noted above cannot

said to be of any perversity so as to call for interference of this

Court in exercise of the Jurisdiction under Article 227 of the

Constitution of India.

9. As regards the petitioner's contention on sub-letting on

the ground that the respondent having permitted two persons

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to enter the premises and use the premises would also amount

to sub-letting and would entitle the petitioner for decree

under Section 13 (1) (e) also cannot be accepted. In this

context decision of the Supreme Court in Delhi Stationers and

Printers Versus Rajendra Kumar (1990 Mh.L.J) as relied on

behalf of the petitioner, in my opinion would not assist the

Petitioner in as much as in the present case, there is no

evidence to show that the respondent had conferred exclusive

right to enjoy the suit shop in favour of a third party in lieu of

payment of some compensation or rent.

10. Having considered the judgements of the Courts below,

I would agree with the contentions as urged on behalf of the

respondent that there is no perversity in the findings as

recorded by the Courts below. It can certainly be concluded

that the petitioner had failed to make out any ground which

would attract the consequence of Section 13(1) (a) (b) or (e)

as alleged in the plaint for the suit to succeed. It was also

quite a struggle for the learned counsel for the petitioner to

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point out any apparent perversity in the findings as recorded

by the Courts below.

11. Resultantly, I find no merit in the present petition, it is

accordingly rejected. No costs.

(G.S. Kulkarni, J.)