Janardan Bhaurao Kelkar vs Mukund Laxmikant Mudras
2017 Latest Caselaw 4955 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                          Writ Petition NO. 3789 OF 1998

 1.Janardan Bhaurao Kelkar  since deceased 
 through his legal heirs.
 1a. Smt.Meena Janardan Kelkar
 1b. Shri.Rajendra Janardan Kelkar
 1c. Sou.Shilpa Aniruddha Ketkar                                  ...Petitioners

         Versus

 Mukund Laxmikant Mudras                                          ...Respondent



 Mr.Girish Paryani, for the Petitioners.

 Mrs.Prabha Badadare with Mr.Omkar Nagvekar, for Respondent no.1.

                                          ----------

                                          CORAM :         G.S.Kulkarni, J.

                                          DATE     :      24th July, 2017
                                            ----
 Judgment :

1. This is a petition of a tenant who though succeeded

before the trial court in view of the dismissal of the eviction suit

(Regular Civil Suit No.23 of 1994), instituted against him by the

landlord, now suffers an eviction decree, in view of the appellate

court, decreeing the landlord's suit, by the impugned judgment dated

21 April 1998. During the pendency of the proceedings the

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petitioner-tenant has expired. This Writ Petition is thus being

pursued by his legal heirs and representatives.

2. In nutshell the facts are:-

The respondent is the landlord of house bearing

No.208(1) situated at Malvan (suit premises). The petitioner -

Janardan was a tenant of the suit premises at a monthly rent of

Rs.50/-. The tenancy was created sometime in the year 1963. It is

not in dispute that the suit premises had become quite old. In the

month of January,1994, father of the respondent had visited the suit

premises and found that there is newly constructed septic tank in the

suit premises. In the inquiry, it was revealed that the petitioner-

tenant had not only undertaken construction of a septic tank as well

as latrine of a permanent nature, constructed in the living room of

the suit premises. This construction was undertaken sometime in the

month of November,1993.

3. The respondent interalia on the assertion that the tenant

had no right and authority to undertake such construction of a

permanent nature, without the permission of the respondent-landlord

which resulted into the tenancy rights of the petitioner having

extinguished, as per Section 13(1)(b) of the Bombay Rents, Hotel

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and Lodging House Rates Control Act, 1947 (for short 'the Bombay

Rent Act'), instituted Regular Civil Suit No.23 of 1994 before the Civil

Judge, Junior Division, Malvan.

4. The petitioner appeared in the suit and resisted the same

by filing his written statement. The case of the petitioner in the

written statement was that the suit premises were about 100 years

old. He contended that in the year 1989 Malwan Municipality had

given directions to the respondent-landlord as also the petitioner for

conversion of basket latrine into septic latrine. He further contended

that in November 1986, one Rajaram Shirodkar, a power of attorney

holder of the respondent had executed an affidavit in favour of the

petitioner, authorising him to construct a new septic latrine and to

deduct the expenditure from the rent. The petitioner contended that

on 8 December 1993 he had suffered a severe heart attack and was

hospitalised for the said illness. On his discharge from the hospital

he was advised three months bed-rest. The petitioner's case was that

as old latrine was at a distance of about 60 meters away from the suit

premises, the doctor had advised him not to attend such latrine but to

arrange new latrine in the suit premises. The defendant further

pleaded that as the roof and beam of the suit premises had become

old, for protection of the same, he had undertaken construction of

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new wall without foundation admeasuring 4 ft. in length, 3 ½ ft. in

breadth and 6 ½ ft. in height and thereafter he undertook

construction of latrine of a temporary nature. He pleaded that the

construction of the latrine as undertaken was not of permanent

nature so as to extinguish his tenancy rights as Section 13(1)(b) of

the Bombay Rent Act would provide. The petitioner accordingly

contended that the respondent is not entitled to recover possession of

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

the Bombay Rent Act.

5. The learned Trial Judge considering the rival pleas, by

his judgment and order dated 23 July 1996 dismissed the

respondent's suit. The learned trial Judge accepted the case of the

petitioner that the latrine though was installed in the living room,

taking advantage of the support wall and the original wall of the suit

house and though it had installation of wooden door from the front

side, nonetheless it was a temporary latrine. The learned trial Judge

observed that the construction of the latrine was undertaken by the

petitioner on the advice of the doctor and that the said construction

could be removed by him. The learned trial Judge has also referred

to the evidence as adduced on behalf of the petitioner namely that of

a mason and a carpenter who deposed that the construction as

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undertaken by the respondent was of a permanent nature which was

of cement and lacerated stones. The learned trial Judge also

recorded a finding that there was no consent granted by the

respondent-landlord to the petitioner to undertake such construction,

as also observed that there was no specific permission granted by the

municipal authority. On the principal consideration that the tenant

had suffered a severe heart attack and that it was on doctor's advice

that he had undertaken the construction of latrine, the learned Trial

Judge held that it was not a construction of permanent nature and it

can be removed. The learned trial Judge also observed that such

construction was for the beneficial use of the suit premises and which

would not cause any loss to the house. The learned trial judge thus

concluded that the respondent was not entitled to an eviction decree

on the ground of the petitioner undertaking construction of a

permanent nature as Section 13(1)(b) would provide.

6. The respondent-landlord being aggrieved by the

judgment, approached the appellate Court in Regular Civil Appeal

No.98 of 1996. The learned appellate Judge considering the

evidence as brought on record opined that there was no dispute that

the latrine in question was constructed in the living room, which fact

was admitted by the respondent. It is observed that even the

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witnesses which were examined on behalf of the petitioner had

deposed that the cement construction was of a permanent nature as

the wall which was constructed was of rocky stones. According to

the learned appellate Judge, these admissions of the witnesses were

sufficient to show that the cement wall as constructed was of a

permanent nature. The learned appellate Judge further observed

that the petitioner overlooked that the construction interalia of the

latrine and the suit wall was required to be undertaken with the

permission of the respondent-landlord in writing, as the law would

contemplate. It was further observed that the contention of the

petitioner that the Malvan Municipality had called upon the parties to

have a latrine of the nature as installed, was also not proved by

adducing any evidence in that regard. The case of the petitioner -

tenant that he was permitted under an agreement executed on behalf

of the respondent-landlord to undertake such construction was also

not accepted, as there was no evidence to accept such a plea. The

learned appellate Judge observed that Section 13(1)(b) of the

Bombay Rent Act read with the 'Explanation' below it, was clear to

conclude that it would not include construction of a latrine as a

permissible construction, so as to non-suit the respondent-plaintiff in

the facts of the present case. It was observed that admittedly there

was no permission which was granted either by the respondent-

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landlord or the Malvan Municipality for construction of the wall and

the latrine. Also as regards the contention (though not relevant) that

the petitioner-tenant on medical advice, had undertaken construction

of latrine, also was not accepted for lack of evidence in that regard.

Accordingly, the learned appellate Judge allowed the appeal thereby

setting aside the judgment and decree passed by the learned trial

Judge thereby dismissing the respondent's suit. The petitioner being

aggrieved by the judgment and decree of the learned appellate

Judge, is before this Court in the present proceedings.

7. During the pendency of this petition, certain

developments have taken place and the same are placed on record by

an affidavit filed on behalf of the respondent, namely that the suit

premises have collapsed. In paragraph 4 of the affidavit it is stated

that the suit premises were locked since the year 2002. The original

tenant (defendant- Janardan Baburao Kelkar) also expired in 2007 at

Pune. The legal heirs-petitioner Nos.1a and 1b are residing in

separate bungalows at Dhuriwada, Malvan. Further petitioner No.1c

is settled in her matrimonial home at Pune. It is stated that the

petitioners have permanently shifted from the suit premises by

removing their belongings, and thus since 2002 the petitioners are

not in use and occupation of the suit premises. It is stated that the

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respondents' parents are very old and do not have a home at Malvan

and they are thus residing at Kalwa, Dist Thane, in very small

premises. The affidavit further sets out the reasons as to why the suit

premises had become necessary for the respondents. The affidavit is

supported by photographs which show that the suit structure is

partially collapsed. The averments as made in this additional

affidavit filed on behalf of the respondents are not disputed by the

petitioners and therefore the contents are required to be accepted as

admitted by the petitioner.

8. Now coming to the contentions as urged on behalf of the

petitioner, the learned Counsel for the petitioners would submit that

the learned appellate Judge is in an apparent error to come to a

conclusion that the latrine which was being objected by the

respondent-landlord was a permanent structure. His submission is

that the latrine was not a permanent structure and that it could have

been removed by the petitioner-tenant at any time. It is submitted

that there is no damage to the structure of the suit premises or the

front of the suit premises, so as to accept the respondents' case under

Section 13(1)(b) of the Bombay Rent Act read with the 'Explanation'

thereunder. Learned Counsel for the petitioners would submit that

the latrine was constructed in view of the circumstances which were

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created due to the ailment of the petitioner-tenant of having suffered

a heart attack on 8 December 1993. It is submitted that in

undertaking the construction of this latrine, apart from the medical

requirement there was also a requirement of the Malvan Municipality

to have latrine of this nature inside the suit premises. Learned

Counsel for the petitioner then submits that the evidence as led on

behalf of the petitioners was sufficient to come to a conclusion that

the construction was of a temporary nature. In support of his

submission, learned Counsel for the petitioner has placed reliance on

on the decision of the learned Single Judge of this Court in the case

"Somnath Krishnaji Gangal Vs. Moreshwar Krishnaji Kale &

Ors."1. to contend that if the norms as formulated in paragraph 21

are applied then the respondent-landlord would not be entitled to a

decree under section 13(1)(b) of the Bombay Rent Act.

9. On the other hand, the learned Counsel for the

respondent-landlord in supporting the judgment of the learned

appellate Judge, would submit that there are findings of fact, as

recorded by the learned trial Judge that the construction of latrine in

the living room was of a permanent nature, as there was construction

of a cement concrete wall of the dimensions set out in paragraph 8 of

1 1995(1) Mh.L.J.675

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the impugned order. The learned Counsel for the respondent would

lay emphasis on the deposition of the mason and the carpenter who

were examined on behalf of the petitioner to submit that these

witnesses have deposed that the construction as undertaken by the

petitioner was in cement concrete and was strong and of a permanent

nature. It is submitted that the learned appellate Judge is correct in

making the observation that the admission of the petitioner - tenant

and his witnesses was sufficient to show that the new wall

constructed in cement foundation was of a permanent nature. He

would submit that in any case, it is an admitted fact that no prior

permission was obtained by the petitioner before undertaking such

construction, from the respondent-landlord. The learned Counsel for

the respondent would submit that the learned trial Judge had

completely mis-directed itself in coming to a conclusion that the

construction undertaken was not of a permanent nature. The learned

Counsel would thus urge for dismissal of this petition.

10. I have heard the learned Counsel for the parties and with

their assistance, I have gone through the judgments of the courts

below, as also the relevant documents from the record.

11. On perusal of the record, at the outset, it may be

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observed that there is no dispute that the petitioner had undertaken

construction of a latrine in the living room of the suit premises.

Further the evidence on record is absolutely clear, to show that as

construction of a toilet was undertaken by installing a cement

concrete wall. The petitioner in the written statement has also

admitted that he had built one support wall. Thereafter, to create a

latrine, he took the advantage of the support wall and used the

original wall of the suit house. Further the petitioner had put up a

wooden door to the latrine from the front side. The petitioner also

caused a pit to be dug for installing what is called as a Gopuri toilet

system and put cement tiles on the said pit. The mason and the

carpenter who were employed by the petitioner for this construction

in their evidence deposed that the construction was of a permanent

nature being of cement and lacerated stones. As regards the case of

the petitioner, as urged before the trial Court, that on medical advice

he was in need of a toilet in the house, the learned appellate Judge

would be correct in recording a finding that this was not

substantiated as there was no evidence in that regard. Further the

petitioner's case, that in the year 1989 Malvan Municipality had

required the respondent and the petitioner to have latrine of this

nature, also stood unsubstantiated due to lack of evidence. The

learned appellate judge rightly held that the petitioner's case that it

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was a temporary toilet was not a true and correct, inasmuch as the

petitioner-tenant had recovered from the ailment and attended his

service since 10 March 1994 and was traveling seven kilometers from

the suit house, which showed that the intention of the petitioner was

to use the said latrine permanently. The rigour of this contention as

made on behalf of the respondent-landlord had completely missed

the attention of the learned trial judge, in coming to the conclusion

that the respondent would not be entitled to a relief in the suit. In

any event, the requirement of law that the prior permission of

landlord is necessary, before putting construction of a permanent

nature as Section 13(1)(b) of the Bombay Rent Act would

contemplate, was also completely overlooked by the learned trial

Judge, only on assumption that the petitioner had undertaken such

construction on medical advice though the construction was of

permanent nature. Such approach was truly erroneous leading to a

perversity. It appears that the learned trial judge was swayed away by

the contention of the petitioner on medical issues rather than the

implication and requirement of law in the clear facts which had

emerged on record.

12. Having perused the judgment and decree as passed by

the learned appellate Judge, it is clear that the findings as recorded

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are based on evidence. The learned appellate Judge has

appropriately held that the nature of the construction in question as

undertaken by the petitioner was a permanent construction. Further,

it is rightly observed that there was no permission sought by the

petitioner either from the respondent-landlord or from the

municipality to undertake the construction. More significantly as

observed by the learned appellate judge, such construction clearly

offended the requirement of Section 13(1)(b) of the Bombay Rent

Act, as the construction was very peculiar namely of a latrine in the

living room. It may be observed that to undertake construction of a

toilet in the living room, as proved, was sufficiently a serious act on

the part of the petitioner-tenant leading to a damage and waste of

the suit premises. Such construction would have ill-effects as rightly

held by the appellate court, on the structure of the suit premises. The

clear contents of the "Explanation" to Section 13(1)(b) in this

context, would become relevant which in no uncertain terms exclude

construction of a latrine. The legislature has categorically excluded

certain constructions which could be said to be permissible

constructions protecting the tenants from rigors of Section 13(1)(b)

of the Bombay Rent Act. In view of the clear statutory mandate

flowing from the said provision, the learned appellate judge has

appropriately criticized the approach of the learned trial Judge in

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dismissing the suit. Thus it may be observed and with certitude that

the conclusion of the learned trial Judge was offending the legal

requirements and was rightly reversed by the appellate Court. I do

not find any perversity in the findings as recorded by the learned

appellate Judge, on any count.

13. As regard the reliance on behalf of the petitioner on the

decision of the learned Single Judge of this Court, in Somnath

Krishnaji Gangal Vs. Moreshwar Krishnaji Kale & Ors.(supra), in

my opinion, this decision would not be applicable in the facts of the

present case. The decision arose in the context where the issue

concerned removal of a window on the western wall of the premises

occupied by the petitioner-tenant therein. There was a prior history

that on the night between 19 and 20 July 1976, there was a theft and

this resulted in removal of the window. The tenant had done so, with

a view to have additional safety and security, and thus closed the

window, it in this context the Court set out in paragraph 21 as to

which constructions can be said to be of a permanent nature so as to

attract the provisions of Section 13(1)(b) of the Bombay Rent Act.

There cannot be any dispute on the propositions set out by the Court

in paragraph 21 of the said decision. The question is as to whether

any of them would be applicable in the facts of the case. As discussed

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above, the construction undertaken by the petitioner in the present

case was of a latrine in the living room which by no stretch of

imagination on the evidence as come on record could be said to be of

a temporary nature so that the provisions of Section 13(1)(b) of the

Bombay Rent Act would not get attracted.

14. In the light of the above discussions and taking an

overall view of the matter, this Writ Petition is devoid of any merit. It

is accordingly dismissed. No order as to costs.

(G.S.Kulkarni, J.)