Shri. Parashram @ P. J. Thakur ... vs Rambai.S.Gaikwad
2017 Latest Caselaw 8083 Bom

 Muj                             1                          wp4467-96.doc

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CIVIL APPELLATE JURISDICTION

                         Writ Petition NO. 4467 OF 1996

 Shri. Parashram @ Purshottam Jethanand
 Thakur (since Deceased) By His LH & LRs.)
 1A. Tulsidas P.Thakur.
 1B Vishindas P.Thakur
 1C.Harish P.Thakur
 1D. Gopal P.Thakur
 1E. Laxmi C.Adnani.                                        ...Petitioners
        Versus
 Rambai.S.Gaikwad                                           ...Respondent
                                 ---

 Mr.S.P.Kanuga i/b. Ms.Sapna Nath, for the Petitioners

 Mr.Akshay Chikhale i/b. Mr.P.B.Shah, for the Respondent.

                                      ----------

                                      CORAM :        G.S.Kulkarni, J.

                                  RESERVED ON  :     19 JULY, 2017

                       PRONOUNCED ON   :             12 OCTOBER, 2017
                                 ----
 JUDGMENT:

1. The petitioner/original defendant who suffers an

eviction decree dated 7 December 1990 in Regular Civil Suit No.589

of 1986 decided by the Joint Civil Judge, Senior Division, Nashik as

confirmed by the learned Second Extra Joint District Judge, Nashik,

dismissing the petitioners appeal by the impugned judgment dated 25

June 1996, is before this Court in the present proceeding under

Muj 2 wp4467-96.doc

Article 227 of the Constitution, being aggrieved by the concurrent

finding of the courts below.

2. In nutshell the facts are :-

The petitioner's father Parashram alias Purshottam

Jethanand Thakur was the tenant of the premises being Shop No.4,

Municipal House No.12/173 situated at Ambedkar Road, within the

municipal limits of Nashik Municipal Corporation (for short ' the suit

premises'). The petitioners father expired during the pendency of

this appeal. The petitioners are legal heirs of deceased Parsharam

who are pursuing this petition. For convenience the parties are

referred as petitioner and the respondent as they originally stood

when this petition was filed. The respondent is the landlady. The

suit premises were let out by the respondent to the petitioner on a

monthly rent of Rs.75/- per month excluding the facility of electricity

and water, with permitted increases. The petitioner conducts

business of a photo studio in the suit premises.

3. The respondent filed the suit in question against the

petitioner (Regular Civil Suit No.589 of 1986) praying for decree of

ejectment and possession on two grounds available under Section 13

of the Bombay Rents, Hotel and Lodging House Rates Control Act,

Muj 3 wp4467-96.doc

1947 (for short 'the Bombay Rent Act') firstly that the petitioner had

defaulted in payment of rent from the year 1984 and the permitted

increases. The rent was due and payable from 1984 upto June,1986

which despite several demands, was not paid by the petitioner to the

respondent. The second ground was of the petitioner constructing

illegal structure in the open space of the suit property without the

consent of the respondent. The construction was of a shed by

installing iron poles surrounding iron mesh as described in the plaint.

The respondent claimed that the petitioner deserved to be evicted on

the said breaches of the petitioner.

4. The petitioner contested the civil suit by filing a written

statement. Both the above grounds on which the respondent prayed

for a eviction of the petitioner were denied by the petitioner. The

petitioner's defence can be seen from paragraphs 15 to 13 of the

written statement. The contention is that the structure as objected

by the respondent was constructed before the petitioner occupied the

suit premises as a tenant and the suit shop was conducted alongwith

the shed to protect the premises from sunlight and rain water. The

shed was also necessary for proper utilization of the suit shop. As the

wooden pillars of the shed were damaged, before the shed collapsed

and as the respondent failed to repair the same, the petitioners

Muj 4 wp4467-96.doc

restored the shed to its original stage. Accordingly, the case of the

petitioner was that the petitioner had not constructed any permanent

structure. It was also contended that the respondent had filed

Regular Civil Suit No.60 of 1985 before the civil court seeking

injunction against the respondent to undertake the repairs, and that

the injunction which was granted was subsequently vacated. It was

contended that there was no damage or waste caused to the suit

premises by restoration of the shed. It was also pleaded that the

petitioners had taken on rent the shop (suit premises) and the open

space in the front, and the rent was Rs.60/- per month and Rs.15/- as

permitted increase. As regards the default in payment of rent, the

petitioner contended that the standard rent was already fixed in the

proceedings of Regular Civil Appeal No.749 of 1975 at Rs.75/- per

month and the rent was paid upto November 1984 and thereafter,

from time to time the petitioner had gone to the respondent to pay

the rent but the respondent had refused to accept the rent on one

pretext or another. The petitioner had also sent a money order in

March,1985 for Rs.225/- but the respondent had refused to accept

the money order.

5. On these rival pleas, the parties went on trial. The

parties also led oral evidence of their respective witnesses who were

Muj 5 wp4467-96.doc

cross examined by the opposite side. The trial Court by its judgment

and order dated 7 December 1990, accepting the case of the

respondent-plaintiff, on the issue of the petitioner making a

permanent construction decreed the suit interalia directing the

petitioner, to hand over possession of the suit premises to the

respondent within one month from the date of the order. The

learned trial Judge had framed specific issues firstly issue no.6 "as to

whether the respondent(plaintiff) proves that the defendant had

constructed a permanent structure over the suit premises without the

permission of the landlord (respondent)". The other issues were issue

nos.7 and 8. Issue no.7 being whether the petitioner/ defendant

proved that the owner prior to the respondent-Mr.Sadashiv Gaikwad,

had in fact let out premises, admeasuring 10 ft. X 30 ft to the

petitioner. The issue no.8 was "as to whether the defendant proves

that the shop premises which are let out to him would include the shed

in front of the shop premises". These issues were answered

collectively. The contention of the petitioner on not undertaking the

construction in question, was repelled by the learned trial Judge

interalia considering the compromise between the parties in Regular

Civil Suit No.749 of 1975, which did not show that any such shed

was in existence, or that it was part and parcel of the area let out to

Muj 6 wp4467-96.doc

the petitioner (defendant). The learned Judge observed that

although according to the petitioner, the suit premises i.e. shop no.4

and the shed constructed on the east of the suit premises admeasures

10 ft. x 30 ft, however, in the evidence, the petitioner had testified

that the studio premises were admeasuring 10 ft. X 20 ft. while the

shed premises were admeasuring 10 ft. X 10 ft.. The learned trial

Judge observed that this admittedly amounted to improvement by

the defendant of his case in the evidence. In view of this

inconsistency, the learned Trial Judge appointed a Commissioner to

verify the measurement of the suit premises, so as to ascertain the

actual measurement, comparing the same to the area as recorded in

the compromise, in the Regular Civil Appeal No. 749 of 1975. The

Court Commissioner made his report at Exhibit 46. The

Commissioner recorded that the measurement of the shed premises

were 11 ft. 8 inches east-west and 10 ft 2 inches north-south. The

petitioner did not raise any objection to the report of the court

commissioner. The said report was accordingly accepted and read in

evidence. The learned trial Judge thus observed that from the report

of the commissioner, it was clear that the shop/suit premises in

which the studio was conducted was admeasuring 27 ft. 6 inches

east-west and 9 ft 4 inches north-south and considering the breadth

Muj 7 wp4467-96.doc

of the walls, the measurement of the shop premises would be about

28 ½ ft. X 10 ft. The learned Judge thus observed that considering

these measurements, it was clear that as per the compromise pursis

placed on record of Regular Civil Appeal No.749 of 1975, the

petitioner/defendant was let out only the shop premises admeasuring

10 ft. X 30 ft. and the petitioner had made encroachment to the

extent of 12 ft X 10 ft. on the eastern side vacant premises owned by

the respondent. Thus, the contention of the petitioner that the shed

situated on the east of the suit premises and that the premises totally

admeasures 10 ft. X 30 ft. was not accepted. The learned trial Judge

also relied on the photographs which came to be proved by

examining the photographer as also the negatives of the photographs

were placed on record, which were also admitted by the petitioner.

The learned trial Judge has recorded a finding based on evidence that

a completely new shed as an extension was constructed by the

petitioner which was not in existence at the time of letting out the

suit premises. Photographer Vishal Narendra Sharma had testified on

the submission that prior to 1985, there was no shed. The learned

trial Judge also commented on the nature of construction of the shed.

It is observed that the shed in question was erected by the petitioner

by rooting iron pillars in the earth and fixing them with cement and

Muj 8 wp4467-96.doc

mortar. The petitioner had also installed iron grills on the north and

south side of the shed and its roof was made up of tiled roof sheets.

The iron grills are permanently fastened to the wall of the suit shop

by welding as also the petitioner had installed a tiled flooring. It was

thus observed by the learned trial Judge that, it was clear that the

petitioner had made substantial change in the character of the

demised premises by erecting the shed which is closed from north

and south side and which also holds a display board of the studio. It

was thus held that the construction was of a permanent nature. The

learned trial Judge considered the provisions of Section 5(8)(b)(i)

and (iii) of the Bombay Rent Act which defines the 'premises' to mean

(i) the garden, grounds, garages and out-houses, if any, appurtenant to

such building or part of a building; (iii) any fittings affixed to such

building or part of a building for the more beneficial enjoyment thereof,

but does not include a room or other accommodation in a hotel or

lodging house; and the provisions of Section 13(1)(b) of the Bombay

Rent Act which provide that the tenant without the landlord's consent

given in writing cannot erect on the premises any permanent

structure. The learned trial Judge thus considering the evidence on

record and the said provisions of the Bombay Rent Act, concluded

that the open space used by the petitioner, by extending the suit

Muj 9 wp4467-96.doc

shop by the said permanent structure fastened to the suit premises, it

can be treated as a "structure appurtenant" as defined under Section

5(8)(b)(i) & (iii). The learned trial Judge accordingly decreed the

suit in the following terms:-

ORDER

"(1) The suit of the Plaintiff is decreed with costs. (2) Defendant do make over possession of the suit premises to the plaintiff within one month from the date of this order.

(3) Plaintiff is at liberty to withdraw the amount of rent deposited by the defendant in the Court. (4) Enquiry into future mesne profit be held under O.XX,R.12 (1) (c) of the Code of Civil Procedure.

(5) Decree be drawn up accordingly."

6. The petitioner being aggrieved by the above judgment

and decree passed by the learned trial Judge, approached the

appellate court by filing civil appeal No.138 of 1991. By the

judgment and order dated 25 June 1996 the learned Joint District

Judge, Nasik dismissed the appeal, confirming the judgment and

decree passed by the learned Trial Judge. Learned appellate Judge

agreed with the findings of the learned trial Judge that the petitioner

had undertaken construction of permanent nature and which very

well fell within the definition of the 'premises' under Section 5(8) of

the Bombay Rent Act. The appellate Court observed that there was a

Muj 10 wp4467-96.doc

compromise in a previous suit (Regular Civil Appeal No.749 of 1975)

which clearly showed that the portion which was let out to the

petitioner was only 10 ft. X 30 ft and it did not include the open site

in front of the shop. The learned appellate Judge took into

consideration the Commissioner's Report which indicated that the

suit premises/shop had a tiled roof which included the shed in

question and was of a measurement 27 ½ x 9 ¼ ft. The appellate

Court reached to a conclusion that the alteration/construction

undertaken by the petitioner showed that it was a construction so as

to fall within the premises under Section 5(8) of the Bombay Rent

Act and that it was intended to be permanent alteration to the suit

premises. It was observed that the nature of the structure and

affixing of a sign board on the front side of the shop clearly

demonstrated the nature of the alteration being of a permanent

character to the suit premises, as also intention of the petitioner to

use the said premises and that it was nothing but encroachment

made by the tenant to the suit premises illegally. It was also

observed that the petitioners construction was permanently injurious

to the structure as also to the rights and interest of the respondent

and thus Section 13(1)(b) of the Bombay Rent Act, had become

applicable. Accordingly, the appellate Court dismissed the petitioners

Muj 11 wp4467-96.doc

appeal. The petitioner being aggrieved by the concurrent findings of

the Courts below has filed the present petition. This petition was

admitted by an order dated 20/09/1996 and by way of interim relief

there was a stay to the execution of the decree.

7. Learned counsel for the petitioners in challenging the

concurrent findings of the Courts below would submit that both the

Courts below, are in an error in reaching to the conclusion that the

installation of the shed in question was of a permanent nature and

which would cause damage to the tenanted premises. It is submitted

that, as can be clearly seen from the Commissioner's Report as also

the photographs as relied upon Exhibit-A, page-13 that, the

construction was not of a permanent nature and it was only a iron

grilled structure with a tiled roof as constructed at the entrance of the

suit premises for better utilization of the suit premises. He submits

that the construction/alteration was not of a permanent nature which

would cause any act or waste or damage to the tenanted premises. In

referring to the definition of premises under Section 5(8) of the Rent

Act, it is submitted that such a construction cannot be referred as

premises appurtenant to such building or part of the building. The

contention as urged on behalf of the petitioner is that both the Courts

below are in an error in holding that the construction in question as

Muj 12 wp4467-96.doc

undertaken by the petitioner is illegal. It is submitted that the

construction of shed though is of iron pillars fastened to the walls of

the tenanted premises, cannot in any manner be said to be a

construction of a nature which would entitle the respondents to a

decree of eviction under Section 13(1)(b) of the Rent Act. In

support of his submissions, the learned counsel for the petitioners has

placed reliance on the photographs at Exhibit-A, Page-13 of the

petition, which would show that it can be said to be temporary

structure for better utilization of the premises. It is submitted that it

is only a structure which is constructed to support the name board of

the premises and which is to merely provide to rest the name board.

It is submitted that there is no alteration to the old premises. It is

submitted that merely because the iron pillars embedded in the earth,

it cannot be said that the construction is permanent. It is submitted

that it can be considered to be a weather shed and even the

municipal law allow a weather shed to be made which would be of a

temporary nature and which can be dismantled without damaging or

affecting the premises. In support of these submissions on behalf of

the petitioner, reliance is placed on the decision of the Supreme

Court in the case of "Om Prakash Vs. Amar Singh and Ors." 1 and

1 (1987) 1 SCC

Muj 13 wp4467-96.doc

"

Pitambardas Kalyanji Bakotiya Vs. Dattatraya Krishnaji" 2 and

"Somnath Krishnaji Gangal Vs. Moreshwar Krishnaji Kale and

Ors."3 .

8. On the other hand, learned counsel for the respondent

has supported the findings of the Courts below. It is submitted that

the petitioner had installed illegal structure fastened to the suit

premises as also extending the open space, without the written

consent of the respondent. The construction is of a permanent nature

by installing iron poles, grills attached to the walls of the suit

premises, which was clearly would attract the provisions of Section

13(1)(b) of the Act and thus the respondent was rightly entitled for a

decree as observed by both the Courts below. It is submitted that the

contention as urged on behalf of the petitioner that the

alteration/construction of the roof at the entrance of the premises, is

not in any manner damaging the tenanted premises is erroneous and

in fact contrary to the evidence on record. It is submitted that the

iron pillars are attached to the walls of the tenanted premises and

removing the said iron pillars which are embedded in the walls,

certainly would damage and cause any waste of the suit premises. It

is thus submitted that the petition is required to be dismissed.

 2    AIR 1981 BOM 388
 3    1995(1) MH.L.J

                                                    


  Muj                               14                           wp4467-96.doc

9. I have heard learned counsel for the petitioner and learned

counsel for the respondent with their assistance, I have also perused

the impugned orders and documents as placed on record. As also I

have perused the records and proceedings.

10. This is a case where there are concurrent findings of

facts of both the Courts below against the petitioner. The scope of

interference in proceedings under Article 227 is well settled to be

very limited. The Court in exercising its jurisdiction under Article

227 of the Constitution of India would not wield powers of an

appellate Court hence the court would not substitute its own view on

the appreciation of evidence for the view taken by the Courts below,

except when the findings are based on no evidence or apparent

perversity, resulting into grave miscarriage of justice. Even in case

that there are errors of fact the same cannot be corrected in exercise

of the writ jurisdiction under Article 227.(See Sayed Yakoob Vs.

K.S.Radhakrishnan (AIR 1964 SC 477). Consistence with this legal

position the case in hand needs to be considered.

11. A perusal of the impugned judgments of both the Courts

below in my opinion do not persuade me to accept the submissions as

made on behalf of the petitioner. The learned trial Judge after

Muj 15 wp4467-96.doc

considering the evidence on record and after examining the

commissioner's report has reached a categorical finding firstly that,

the premises admeasuring 10 X 30 sq.ft. were the actual tenanted

premises and that the additional premises as noted above are the

unauthorised extension which was constructed/installed by the

petitioner appurtenant to the tenanted premises. It is also clearly

seen that the extended premises are used as permanent premises.

The construction undertaken is embedded to the walls of the suit

premises through poles/iron grills permanently fastened to the suit

premises, as also there is roof as also permanent tiling made on the

ground. This clearly shows the nature of the alteration/construction.

There is no material on record to show that such construction was

existing when the premises were let out to the petitioner by the

respondent or prior thereto.

12. The contention of the petitioner is that the construction

is only to support the sign board/name board, of the shop premises,

also cannot be accepted. This Court cannot come to any different

finding of fact reversing the findings of fact as recorded by the Courts

below. In any event, the report of Court Commissioner as also other

plentiful material on record would show that the construction is of a

permanent nature which is being utilized fully for commercial

Muj 16 wp4467-96.doc

purposes by the petitioner. If this be the situation and admittedly

when it is not part and parcel of the original suit premises, as let out

and that the construction undertaken by the petitioner is embedded

to the walls of the suit premises, with a roof and proper tiling on the

floor/ground, these are sufficient factors to come to a conclusion,

that the Courts below were correct in recording a finding that the

structure is of a permanent nature constructed without prior written

permission of the respondent, which would entitle the respondent to

a decree under Section 13(1)(b) of the Bombay Rent Act. If the

contentions as urged on behalf of the petitioner are accepted then the

very sanctity of the original tenancy and the portion of the premises

as let out and put to use by the petitioner would be lost. It is clear

from the facts that the petitioner had materially altered and brought

about a substantial change in the character and of form in the

tenanted premises. The construction as undertaken by the petitioner

certainly cannot be removed without causing any damage to the

tenanted premises. It is in these circumstances that the Courts below

have come to a conclusion that it was a construction of a substantial

nature which altered the tenanted premises.

13. The reliance on behalf of the petitioners on the decision

of the Supreme Court in "Pitambardas Kalyanji Bakotiya Vs.

Muj 17 wp4467-96.doc

Dattaraya Krishnaji", in my opinion would not assist the petitioner.

This was a case where the petitioner therein had extended a pre-

existing tin shed on the open land adjacent to the accomodation, by

constructing wall made of bricks and mud and bamboo without the

consent of the respondents. The facts are completely distinct.

14. The decision of the learned Single Judge of this Court in

"Somnath Krishnaji Gangal Vs. Moreshwar Krishnaji Kale and

Ors." (Supra) would also not assist the petitioner as it was a case

that, the tenant following a theft had removed a window frame on

the western wall of the premises, for the purpose of additional safety

and security to close the window. It was complained by the landlord

in the suit that he was entitled to a decree under Section 13(1)(b) of

the Rent Act. The Court in this context reached a conclusion that the

removal of the window was for better utilization of the tenanted

premises and was a minor alteration not of a permanent nature. It is

in this context, the Court had made observations in Paragraph 21.

The facts are completely different and would not assist the petitioner.

15. The decision in "Pitambardas Kalyanji Bakotiya Vs.

Dattatraya Krishnaji (Supra) would also not assist the petitioner as

the contention of the landlord in the said case was that the petitioner

Muj 18 wp4467-96.doc

constructing a kitchen platform in the premises let out to him

without prior permission of the respondent, given in writing, which

had resulted into damage or waste to the building. It is in these

circumstances, the Court had made the observations in paragraph 11

of the decision as relied upon by the petitioner that such a

construction would not be of a nature which would damage or waste

the suit premises.

16. In view of the above deliberation, I find no perversity in

the findings as recorded by the learned trial Judge as also the learned

appellate Judge.

17. The petition is devoid of merits. It is accordingly

dismissed.

18. The petitioner is directed to hand over the vacant

possession of the premises to the respondents within a period of eight

weeks from today. No costs.

(G.S.Kulkarni, J.)