Bombay High Court
Anil S/O. Joginder Sachdev And Anr vs Balasaheb Hiralal Zad And Anr on 13 September, 2024
2024:BHC-AS:36858
Neeta Sawant CRA-516-2019-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.516 OF 2019
1 Anil Joginder Sachdev
Age 59 years, Occ. Business
2 Rajeev Joginder Sachdev
Age 54 years, Occ. Business
Both above r/o 545, Sadashiv Peth,
Laxmi Road,
Near Kulkarni Petrol Pump, Pune ....Applicants
-Versus-
1 Balasaheb Hiralal Zad
Age 70 years, Occ. Business
2 Chandrakala Balasaheb Zad
Age 68 years, Occ. Business
Both r/o 416/8, Raghuveer CHS,
Mukundnagar, Pune. ....Respondents
________
Mr. S.M. Gorwadkar, Senior Advocate i/b Mr. Niranjan A. Mogre for
Applicants.
Mr. G.S. Godbole, Senior Advocate with Ms. Aishwarya Bapat i/b Mr.
S.C. Wakankar, for Respondents.
__________
CORAM : SANDEEP V. MARNE, J.
Reserved On : 27 August 2024.
Pronounced On : 13 September 2024.
Page No. 1 of 55
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JUDGMENT:
1) Applicants-tenants have invoked revisionary jurisdiction of
this Court under Section 115 of the Code of Civil Procedure, 1908 (Code)
challenging the judgment and decree dated 1 January 2018 passed by
District Court, Pune in Regular Civil Appeal No. 720 of 2011 confirming
the judgment and decree dated 29 September 2011 passed by Additional
Small Causes Court, Pune in Regular Civil Suit No.668 of 1999. The suit
filed by the Plaintiffs-landlords has been decreed on the ground of
arrears of rent, destruction/injury to the suit premises and erection of
permanent structure inside and outside the suit premises. The decree has
been confirmed by the Appellate Court.
A. FACTS
2) Shop admeasuring 150 square feet situated on ground floor
of the building at CTS No.545 Sadashiv Peth, Laxmi Road, Pune, are the
'suit premises'. The house property bearing No. 545 was originally
owned by Shri Sarjerao Jadhav, who had inducted Defendants' father as
a tenant in respect of the suit premises. Plaintiffs-landlords purchased
the house property No. 545 from the previous owner on 17 December
1979 and became landlord of Defendants. Defendants operate business
in the name of 'Dev Sport' in the suit premises. Defendants had filed
Miscellaneous Application No. 610 of 1988 in Small Causes Court, Pune
for fixation of standard rent in respect of the suit premises. By order
dated 3 February 1992, the Small Causes Court fixed Rs. 88.30/- as
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standard rent in respect of the suit premises. According to Plaintiffs-
landlords, in addition to the standard rent of Rs.88.30/-, Defendants are
also liable to pay other permitted increases and education cess.
3) Plaintiffs-landlords filed Suit No.558 of 1999 seeking
eviction of Defendants, which was withdrawn on 6 October 1999 with
liberty to file a fresh suit. It appears that Plaintiffs-landlords dispatched
Notice dated 25 October 1999 on Defendants alleging arrears of rent
from 1 January 1991. However before completion of period of 30 days
from the date of service of Notice, Plaintiffs-landlords filed Regular Civil
Suit No.668 of 1999 on 3 November 1999 under the provisions of
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(Bombay Rent Act, 1947) on the grounds of (i) commission of breach of
tenancy under section 108(o) of the Transfer of Property Act read with
section 13(1)(a) (ii) erection of permanent structure without written
consent of the Plaintiffs-landlords under section 13(1)(b) and (iii)
bonafide requirement. Defendants resisted the suit by filing Written
Statement contesting the claims of Plaintiffs-landlords. The Plaint was
amended in the year 2004 and Plaintiffs-landlords added the ground of
arrears of rent in the plaint. Defendants filed additional written
statement contesting the claim of default of payment of rent. Both the
sides led evidence in support of their respective cases. After considering
the pleadings, documentary and oral evidence, the Small Causes Court
delivered judgment and order dated 26 September 2011 rejecting the
ground of bonafide requirement of Plaintiffs-landlords. However, the
ground of default in payment of rent under section 12 of the Bombay
Rent Act was accepted. The Trial Court held that the Defendants failed to
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deposit the arrears of rent within the meaning of section 12(3) of the
Bombay Rent Act. Accordingly, the issue of default in payment of rent
was answered in affirmative. The Trial Court also accepted the ground of
commission of breach under section 108(o) of the Transfer of Property
Act read with section 13(1)(a) of the Bombay Rent Act. The Trial Court
also answered the issue of raising of permanent structure inside and
outside the suit premises without the consent of a landlord. The suit was
accordingly decreed directing Defendants to handover possession of the
suit premises to the Plaintiffs-landlords with further direction to pay
arrears of rent of Rs. 22,510/- alongwith interest. Plaintiffs-landlords are
also held entitled for mesne profits from the date of termination notice
on 25 October 1999.
4) Defendants challenged the decree of the Trial Court by filing
Regular Civil Appeal No.720 of 2011. The Plaintiffs-landlords filed cross-
objection to the extent of rejection of ground of bonafide requirement. By
judgment and decree dated 1 January 2018, the Appellate Court has
dismissed the Appeal as well as Cross-Objection and has confirmed the
decree of the Trial Court. Aggrieved by the decisions of Trial and the
Appellate Court, the Revision Applicants have filed the present Civil
Revision Application.
B. SUBMISSIONS
5) Mr. Gorwadkar, the learned counsel appearing for the
Revision Applicants would submit that the Trial and the Appellate Court
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have erroneously accepted the ground of default in payment of rent.
That the demand notice purportedly issued on 25 October 1999 under
Section 12(2) of the Bombay Rent Act was issued by the landlord to the
Applicants demanding rent for a period of 106 months from 1 January
1991 on 31 October 1999 @ Rs. 88.30/- plus education cess and permitted
increases. That the Notice did not specify the exact amount of education
cess or permitted increases. That therefore it was not a valid notice of
demand atleast qua the demand for education cess and permitted
increases. That within nine days of issuance of notice, Plaintiffs
proceeded to file Civil Suit No. 668 of 1999 on various grounds by
consciously not raising the ground of default. That thus the ground of
default was consciously omitted by the Plaintiffs, when the suit was
originally filed and therefore the demand notice dated 25 October 1999
no longer remained valid so far as ground of default is concerned. That
in any case, the Defendants deposited Rs.12,500/- in the Court towards
the arrears of rent though the amount demanded in the notice was only
Rs.9359.80/-. That the Plaint was subsequently amended on 6 December
2004 incorporating the ground of default in payment of rent. That by the
time the suit was amended, the Defendants had deposited Rs.14,015/- in
the Court and after incorporation of the amendment, Defendants
deposited further amount of Rs.1160/- in the Court (total amount of
Rs.15,173/-). That the amount due towards rent for 36 months from the
filing of the suit till March 2005 was only Rs.8918/- + Rs. 5,285.34/-
(interest) = Rs.14,203.64/-. That thus there were no arrears of rent on the
part of the Defendants.
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6) Mr. Gorwadkar would further submit that the amendment
of pleadings relates back to the date of filing of the suit and the doctrine
of relation back generally governs amendment of the pleadings, unless
the Court excludes the applicability of the doctrine in a given case. In
support of his contentions, Mr. Gorwadkar would rely upon the
following judgments:
(i) Siddalingamma and Anr. Versus. Mamtha Shenoy1,
(ii) All India Reporter Ltd., Bombay with Branch Office at
Nagpur and Anr. Versus. Ramchandra Dhondo Datar2,
(iii)Radheshyam G. Garg Versus. Smt. Safiyabai Ibrahim
Lightwalla3.
7) Mr. Gorwadkar would submit that the Trial Court in the
present case has not recorded any reasons for excluding the doctrine of
relation back and therefore the ground of alleged default in payment of
arrears of rent is deemed to have been taken by the Plaintiff on 3
November 1999 itself when plaint was presented in the Court. That
therefore the suit qua the ground of default in payment of rent would be
decided under Section 12(2) of the Bombay Rent Act. That since the suit
was not instituted after waiting for one month after receipt of demand
notice dated 25 October 1999, the suit itself was not maintainable and
liable to be rejected on that ground alone. In support, he would rely
upon judgments of this Court in Digambar Hari Sonpatki Versus.
1 (2001) 8 SCC 561.
2 AIR 1961 Bombay 292 (Nagpur Bench).
3 AIR 1988 Bombay 361.
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Kishnichand Nerumal Parwani4 and of Nagpur Bench in
Jeetendra Vasantrao Nagarkar Versus. Mohanlal Maluramji
Agrawal5. That provisions of Section 15(2) of the Maharashtra Rent
Control Act, 1999 (MRC) would have no application to the present case.
Since the suit is governed by Section 12(2) of the Bombay Rent Act, it was
necessary to examine the exact rent due from the tenant on the first day
of hearing of the suit. However, such exercise is not done by the Court
on the first date of hearing. That in Gurudev Singh Versus.
Surinder Kumar Sharma and others6, the Apex Court has held that
the first date of hearing is the date of effective hearing i.e. the date of
chief-examination of the Plaintiff. That since the demand notice itself
was invalid, the tenants were liable for eviction under Section 12(2) of
the Bombay Rent Act. In support, he would rely upon judgment of this
Court in Buvaji Shamrao Kamble Versus. Sau.Girijabai
Shankarrao Kadam and others7.
8) Alternatively, Mr. Gorwadkar would submit even if the suit
is to be treated under Section 15(2) of the MRC Act, the period of 90 days
would be over on 6 March 2005 and the Defendants had deposited
excess amount of rent as on 2 March 2005. Therefore, in either of the
cases, Defendants/tenants cannot be accused of committing default in
payment of rent so as to maintain the suit for recovery of possession.
That therefore the decree of eviction on the ground of willful default by
the Applicants/Defendants deserves to be set aside.
4 1994 Mh.L.J. 290.
5 2016 (6) Mh.L.J. 797.
6 1990 (Supp) SCC 78
7 1998 SCC OnLine Bom 429
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9) So far as the ground under Section 13(1)(a) of the Bombay
Rent Act read with Section 108(o) of the Transfer of Property Act as well
as Section 13(1)(b) of the Bombay Rent Act is concerned, Mr. Gorwadkar
would submit that the suit itself was not within limitation. That under
Article 66 of the Limitation Act, 1963, (Limitation Act), the limitation for
filing of the suit was 12 years. That in the averments in paragraphs-5(b)
to 5(f) of the plaint, the Plaintiff did not indicate the exact dates on which
the alleged act of forfeiture by erecting the alleged permanent
construction or alleged breach of conditions were committed by the
tenants. That the Ota (platform) and signboard existed at the time the
premises were taken on rent from the previous owner Sarjerao Jadhav in
the year 1960. That the cupboards and furniture were made in the year
1984. He would therefore submit that the suit filed in the year 1999 was
clearly barred by limitation under Article 66 of the Limitation Act. In
support, he would rely upon judgment of this Court in Shashikant
Yeshwant Limaye and another Versus. Chintaman Vinayak
Kolhatkar and others8 and the judgment of the Apex Court in
Ganpat Ram Sharma and others Versus. Gayatri Devi 9. That the
Plaintiff erroneously pleaded in the plaint that the suit is governed by
Article 67 of the Limitation Act so that Plaintiff could file suit within 12
years from termination of tenancy. That the Trial Court has erred in not
framing the issue of limitation on the basis of erroneous pleadings made
by the Plaintiff. Since the issue of limitation pertains to issue of
jurisdiction of the Court, the same ought to have been framed in absence
of framing of the same, that this Court would be justified in deciding the
same in exercise of revisionary jurisdiction and held that the Apex Court
8 2010 (5) Mh.L.J. 527.
9 (1987) 3 SCC 576.
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in Pandurang Dhondi Chougule and Ors. Versus. Maruti Hari
Jadhav and Ors.10.
10) Mr. Gorwadkar would further submit that damage to the
suit property was not proved nor attracted Section 108(o) of the Transfer
of Property Act. In support of his contention that the acts such as
putting up of rolling shutter, fixing of additional racks, putting up of
new showcase by drilling holes into the wall will not amount to
damaging the building nor will it amount to permanent construction on
the suit premises, he would rely upon the judgment of the Apex Court in
G. Raghunathan Versus. K.V. Varghese11. That since the suit
premises were let out for carrying out trade in an important locality in
the City, the signboards were fixed to attract customers. In support of his
contention that putting up of signboards and installation of racks do not
amount to putting of permanent construction, Mr. Gorwadkar would
rely upon Hari Rao Versus. N. Govindachari and Anr. 12 Mr.
Gorwadkar would further submit that installation of furniture does not
amount to making of construction of permanent nature within the
meaning of Section 13(1)(b) of the Bombay Rent Act. That all furniture
and fixtures were removable in nature and in support he would rely
upon judgment of this Court in Manoramabai Vishwanath Limaye
& Ors. Versus. Pramila Vijay Phansalkar 13. He would submit that
carrying out minor repairs for better enjoyment and use of the premises
does not amount to permanent structure within the meaning of Section
13(1)(b) of the Bombay Rent Act and would rely upon judgment of this
10 AIR 1966 SC 153.
11 AIR 2005 SC 3680
12 AIR 2005 SC 3389
13 2011 (6) Bom.C.R. 389
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Court in Somnath Krishnaji Gangal Versus. Moreshwar
Krishnaji Kale14. Mr. Gorwadkar would submit that damage or injury
to the property is essential before the landlord can rely upon act as the
one in contravention of Section 108(o) of the Transfer of Property Act
within the meaning of Section 13(1)(a) of the Bombay Rent Act and
would rely upon judgment of this Court Keshavji Ramji Sanghavi
Versus. Smt. Sulochanabai Ramkrishna Mirwankar15.
11) Relying on Parvati Kevalram Moorjani Versus.
Madanlal Anraj Porwal and Others16, Mr. Gorwadkar would
submit that the constructions erected for bonafide enjoyment of the
property for commercial use and which are removable in nature does not
amount to construction of permanent structure within the meaning of
Section 13(1)(b) of the Bombay Rent Act. He would rely upon judgment
of the Apex Court in Om Pal Versus. Anand Swarup (Dead) by
Legal Heirs17 in support of his contention that in absence of
demonstration of value of the building being diminished, material
alteration to the suit premises cannot be inferred. On the above
submissions, Mr. Gorwadkar would submit that all the three grounds of
delay in payment of rent, injury/destruction of the suit premises under
Section 108(o) of the Transfer of Property Act and erection of permanent
structure have not been proved in the present case. The eviction decree
passed by the Trial Court and confirmed by the Appellate Court thus
suffers from serious error warranting interference by this Court in
14 1995 (1) Mh.L.J. 675
15 AIR 1977 Bom 7
16 1987 Mh.L.J. 917
17 (1988) 4 SCC 545.
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revisionary jurisdiction under Section 115 of the Code. He would
therefore pray for setting aside the decree for eviction.
12) Mr. Godbole, the learned senior advocate appearing for the
Plaintiffs-landlords would oppose the Revision Application submitting
that concurrent findings recorded by the Trial and the Appellate Court
on all the three issues do not warrant any interference by this Court in
exercise of revisionary jurisdiction of this Court. So far as the ground of
default in payment of rent is concerned, Mr. Godbole would submit that
since the suit is amended in the year 2004, the same is required to be
treated as having been filed under the provisions of Section 15(2) of the
MRC Act. That any ground incorporated in a pending suit after coming
into effect of the MRC Act would necessarily arise out of that Act and the
same cannot be treated as a ground arising out of the Bombay Rent Act.
If this is not done, in a pending suit, the Plaintiff would seek to add the
grounds of acquisition of alternate premises by the tenant though the
said ground is no longer available under the MRC Act. That the demand
notice issued by the Plaintiffs on 25 October 1999 continues to remain in
force and that there is nothing in law which prescribes any outer period
of limitation for filing Suit based on a demand notice. That the restriction
is only for inner period of limitation within which time the suit cannot be
filed. That therefore the ground of default is linked to the demand notice
dated 25 October 1999 and the ground of default is incorporated under
Section 15(2) of the M.R.C. Act.
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13) Mr. Godbole would further submit that the demand notice
dated 25 October 1999 clearly specified demand for rent at the rate of Rs.
88.30/- plus education cess and permitted increases. That if any doubt
remained in the mind of the Defendant, the amount of education cess
and permitted increases of Rs. 1123.08/- and Rs.2649/- as on 30 October
1999 was specified in the amended plaint. That it was necessary for the
Defendants to deposit in the Court, the entire amount of rent due after
the amendment was incorporated on 6 December 2004. That the entire
amount of rent due together with interest and costs of the suit were not
deposited by the Defendant under Section 15(3) of the M.R.C. Act. He
would rely upon judgment of Full Bench of this Court in Babulal
Fakirchand Agrawal Versus. Suresh Kedarnath Malpani &
Ors.18 in support of his contention that the ground of eviction under
Section 15(3) of the M.R.C. Act is independent one and that even if the
tenant complies with the demand notice, nothing prevents the Court
from passing the decree in the event it is found that the Defendant has
not complied with the provisions of Section 15(3) of the MRC Act.
Relying upon the judgment of the Apex Court in Jaywant S.
Kulkarni & Ors. Versus. Minochar Dosabhai Shroff & Ors. 19, Mr.
Godbole would submit that the statutory period provided for either
under Section 12(3)(b) of the Bombay Rent Act or Section 15(3) of the
MRC Act cannot be extended by use of judicial discretion. Mr. Godbole
would therefore submit that the ground of default accepted by the Trial
and the Appellate Court does not warrant any interference.
18 2017 4 All M.R.356
19 (1988) 4 SCC 108
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14) So far as the ground under Section 13(1)(a) and 13(1)(b) of
the Bombay Rent Act is concerned, Mr. Godbole would take me through
the Plan prepared by the Plaintiff's witness to demonstrate both
destruction/injury to the suit premises, as well as erection of permanent
structure. He would submit that the Ota (platform)admeasuring 15' x
6.5' x 7.0' with height of 5'' has been constructed by the Defendants on
the road setback area, which does not form part of the tenanted
premises. Additionally, the Defendant has constructed two showcases
outside the shop. That 9'' thick brick wall is demolished and replaced by
showcase inside the suit shop. That the wooden door of the suit premises
is found to be replaced by rolling shutter. He would take me through the
evidence of Mr. Manohar M. Paranjape, Architect examined at the behest
of the Plaintiff. He would also take me through the evidence of Mr. Anil
Joginder Sachdev (D.W.1) to demonstrate admission that the concerned
platform was not let out to the Defendants but the same was being
treated as part of the tenanted premises by them. He would submit that
that there is sufficient evidence available on record to infer damage and
injury to the suit premises amounting to breach within the meaning of
Section 108(o) of the Transfer of Property Act read with Section 13(1)(a)
of the Bombay Rent Act. That the ground of erection of permanent
structure is also attracted under Section 13(1)(b) of the Bombay Rent Act.
In support of his contention that replacement of wooden door by iron
shutter amounts to erection of permanent structure, Mr. Godbole would
rely upon judgment of this Court in Dr. C.C.Yi Versus. Smt.
Jankidevi Anantlal Gupta20. In support of his contention that act of
tenant in carrying out unauthorised construction outside the suit
20 2001 3 ALL MR 324
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premises which he believes to be let out to him attracts the provisions of
Section 13(1)(a) and 13(1)(b) of the Bombay Rent Act, Mr. Godbole would
rely on judgement of this Court in Impex (India) Pvt. Ltd. Versus.
Dinasah Jal Daruwala21. He would submit that the Appellate Court
has rightly considered the ratio of the judgment in V.L.G. Pitti Versus.
Bridge Brothers22. Mr. Godbole would pray for dismissal of the
Revision Application.
C. REASONS AND ANALYSIS
15) The suit has been decreed and the decree has been
confirmed on three grounds of (i) default in payment of rent, (ii) injury
and destruction to the suit premises under Section 108(o) of the Transfer
of Property Act read with Section 13(1)(a) of Bombay Rent Act and (iii)
erection of permanent structure without landlord's consent in writing
under Section 13(1)(b) of the Bombay Rent Act. I proceed to examine
correctness of findings recorded by Trial and Appellate Court on each of
the grounds.
C.1 DEFAULT IN PAYMENT OF RENT
16) To examine correctness of ground of default in payment of
rent, the controversy about applicability of exact enactment needs to be
first resolved. While Mr. Gorwadkar for Defendants-Tenants has
contended that the ground of default in payment of rent was raised and
21 2024 SCCOnline Bom 999
22 (1987) 3 SCC 558
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has been decided as per the provisions of the Bombay Rent Act, it is Mr.
Godbole's contention that the said ground is referable to the provisions
of MRC Act, since the ground has been introduced after coming into
effect of the MRC Act.
17) The suit was instituted on 3 November 1999 and at that time,
the Bombay Rent Act was in force. The suit as originally filed on 3
November 1999 did not contain ground under Section 12 of the Bombay
Rent Act for recovery of possession on the ground of default in payment
of rent. Plaintiff had dispatched notice claiming default in payment of
rent on 25 October 1999. In the notice, Plaintiff claimed that the rent in
respect of the suit premises was fixed at Rs. 88.30/- plus education cess
plus permitted increased by order passed by the Small Causes Court
dated 3 February 1990 in Misc. Application No.610/1988. Plaintiff
claimed that the Defendants were in arrears of rent from 1 January 1991.
In addition to the rent, Plaintiff claimed that education cess and
permitted increases were also not paid by Defendants from 1 January
1991. Plaintiff assessed the amount of arrears of standard rent for 106
months from 1 January 1991 to 31 October 1999 at Rs. 9359.80/- and
while claiming the said amount of Rs.9359.80/- also demanded
additional unspecified amount towards education cess as per law as well
as other permitted increases. There is no dispute to the position that the
notice dated 25 October 1999 has been received by the Defendant.
However, within 9 days from the date of dispatch of notice dated 25
October 1999, Plaintiff lodged Regular Civil Suit No. 668 of 1999 on 3
November 1999. Under sub-section (2) of Section 12 of the Bombay Rent
Act, no such suit for recovery of possession can be instituted by the
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landlord on the ground of non-payment of rent until expiration of one
month after the notice in writing for the demand of rent is served on the
tenant. Thus, if Plaintiff was to seek recovery of possession on the
ground of non-payment of rent and /or permitted increases, he ought to
have waited for a period of 30 days after date of service of notice.
However, Plaintiffs consciously did not include the ground of default in
payment of rent in the plaint filed in Regular Civil Suit No. 668 of 1999.
Copy of the original unamended plaint has been placed on record which
shows that the suit was filed on the grounds of breach of terms of
tenancy by causing injury and destruction to the suit premises under
Section 108(o) of the Transfer of Property Act read with Section 13(1)(a)
of the Bombay Rent Act, erection of permanent structure within the
meaning of Section 13(1)(b) of the Bombay Rent Act and bonafide
requirement of the landlord under Section 13(1)(g) of the Bombay Rent
Act.
18) The ground of default in payment of rent under Section
12(2) of the Bombay Rent Act came to be incorporated for the first time
by filing application for amendment on 24 August 2004 which was
allowed on 29 November 2004 and the amendment was carried out on 6
December 2004.
19) Thus, the case presents a unique conundrum where the suit
was originally filed under the provisions of the Bombay Rent Act and by
the time the ground of default in payment of rent was sought to be
incorporated in the plaint, MRC Act had come into force w.e.f. 31 March
2000. This is the reason why there is debate between the parties about
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the exact enactment under which the ground of default is to be
considered.
20) Contrary to Mr. Godbole's contention that the ground of default in
payment of rent was under MRC Act, Plaintiffs themselves pleaded in
amended para-9A of the Plaint that the ground of default was raised
under the provisions of Section 12(3) of the Bombay Rent Act.
21) The contention of Mr. Gorwadkar about the ground of
default being governed by the provisions of the Bombay Rent Act is
premised on the doctrine of relation back. According to him, the
amendment would relate back to the date of institution of the suit and
that therefore the amendment would also have to be considered as on
the date of filing of the suit. Mr. Gorwadkar has relied upon the
judgment of the Apex Court in Siddhalingappa (supra). In case before
the Apex Court, the issue was about effect of amended plaint on the
bonafide requirement of the landlord. The Apex Court held in para-10 as
under:
10. ...... An application for amendment under Order 6 Rule 17 of the CPC was
moved and the deficiency in the pleadings stood removed by the amendment
permitted by the Trial Court in exercise of its discretionary jurisdiction to do
so. The order permitting the amendment was not put in issue promptly. Even
the High Court in its impugned order has not found fault with the order of the
Trial Court permitting the amendment nor has it expressed an opinion that
leave granted by the Trial Court for amendment in the eviction petition
suffered from any error of jurisdiction or discretion. On the doctrine of relation
back, which generally governs amendment of pleadings unless for reasons the
Court excludes the applicability of the doctrine in a given case, the petition for
eviction as amended would be deemed to have been filed originally as such
and the evidence shall have to be appreciated in the light of the averments
made in the amended petition. ......
(emphasis added)
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22) In All India Reporter Ltd. (supra), the Division Bench of
this Court was considering the issue of defect in the plaint in not
properly signing and verifying the same and the date of institution of the
suit remaining the same even after resigning or re-verifying the same by
way of amendment. The Division Bench has held in para-28 as under:
28. Holding that it was only on 24-4-51 that the plaint was properly signed and
verified, the trial Court held that the date of the filing of the suit must be taken
to be 24-4-51. As already pointed out, the general consensus of authority of the
Bombay High Court and other High Courts is in favour of the view that
defects and irregularities in the matter of signing, verifying or presenting
plaints are mere irregularities of procedure which do not make the suit
ineffective, inoperative, or void. The existence of such defects does not mean
that the suit had not been filed. Even when the plaint is amended after it is
properly instituted, the amendment relates back to the date of the original
plaint unless the amendment adds new parties or new properties. That is why
leave to amend a plaint has ordinarily to be refused, except in very exceptional
cases, if the effect of the proposed amendment is to take away from the
defendant the legal right which accrued to him by lapse of time. See Charan
Das v. Amir Khan AIR 1921 PC 50 : 47 Ind App 255. If the amendment is
allowed, it relates back to the date of the original plaint. If is not a case of the
amendment taking effect from the date of amendment and of condoning the
bar of limitation. If the amendment of the plaint is allowed, the question of
limitation cannot be reserved. It is not a case of allowing the amendment of the
plaint and reserving the question whether or not to condone the delay and the
bar of limitation. If the Court feels that the bar of limitation should not be
avoided, it must refuse the amendment of the plaint. After allowing the
amendment the Court cannot say that the amendment takes effect from the
date of the amendment. Similarly, when a defective plaint is rectified and re-
signed and re-verified on a subsequent date, the re-signing or the reverification
of the plaint relates back to the original date.
(emphasis added)
23) In Radheshyam G. Garg (supra), Single Judge of this
Court dealt with a case where the suit notice did not demand arrears of
rent nor the plaint contained the ground of default in claiming
possession. The subsequent amendment to the plaint apparently added
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the ground of default. In the facts of that case, this Court held that
amendment of the plaint related back to the date of filing of the suit on
which day, there were no arrears. This Court held in paras-11 and 12 as
under:
11. Mr. Raghuwanshi, learned Advocate appearing in support of the petition,
firstly submitted that the plaintiff would not be entitled to urge the ground of
default for claiming possession. He pointed out that in the suit notice dt. 21st
Aug, 1975 there was no demand towards arrears of rent inasmuch as there
were no arrears on that date. Similarly in the suit filed on 2nd Oct., 1975 there
was no ground of default set up for claiming possession. The plaintiff was not
entitled to rely upon her subsequent notice dt. 14th April 1977 for claiming
possession by amending the plaint on 26th Oct., 1977. The amendment of the
plaint related back to the date of the filing of the suit on which date there were
no arrears. Mr. Raghuwanshi relied upon the case of All India Reporter Ltd. v.
Ramchandra, reported in AIR 1961 Bom 292, in support of his contention that
the amendment in this case would relate back to the date of the suit i.e. 2nd
Oct., 1975. The plaintiff was not thus justified in taking advantage of the
alleged arrears subsequent to the filing of the suit and claim decree for
possession on the ground of default by amendment of the plaint. The said
subsequent default could at best give a fresh cause of action to the plaintiff and
the plaintiff can claim possession on that cause of action only by filing a fresh
suit and not by amending the present plaint.
12. I find considerable substance in the aforesaid submission of Mr.
Raghuwanshi. Sub-Sec. (2) of Section 12 of the Bombay Rent Act provides that
no suit for recovery of possession shall be instituted by landlord on the ground
of non-payment of rent until expiration of one month next after a notice in
writing of the demand of rent has been served upon the tenant. In my
judgment, the condition precedent for filing a suit for possession on the
ground of non-payment of rent is issuance of aforesaid notice under Section
12(2) of the Rent Act and it is only when the tenant fails to pay the rent
demanded in the said notice within one month after service of the said notice
that a cause of action can be said to have accrued in favour of the plaintiff to
file a suit for possession on the ground of non-payment of rent. In this view of
the matter I hold that the claim of the plaintiff for possession on the ground of
default in payment of rent set up by amendment of the plaint cannot give a
valid ground for eviction under Section 12(3)(a) or 12(3)(b) of the Bombay Rent
Act.
(emphasis added)
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24) It is by relying on the judgment of the Apex Court in
Sidhalingappa and of this Court in All India Reporter Ltd. and
Radheshaym G. Garg, that Mr. Gorwadkar has submitted that the
ground of default in payment of rent would relate back to the date of
institution of the suit, on which date, period of 30 days from the date of
receipt of notice, as required under Section 12(2) of the Bombay Rent Act,
has not expired.
25) I however find slight hesitation in accepting the submission
of Mr. Gorwadkar about every ground introduced by way of amendment
relating back to the date of institution of the suit. Under the MRC Act,
the ground of acquisition of suitable alternate premises is no longer
available for seeking recovery of possession of tenanted premises. If the
doctrine of relation back is applied, the landlord will introduce the
ground of acquisition of suitable alternate premises in a pending suit
instituted before 31 March 2000, by amending the same say in the year
2005 by citing the doctrine of relation back. In my view, the key is the
date on which the ground becomes available for the Plaintiff for being
incorporated in the plaint. Thus, if the ground became available during
the time when the Bombay Rent Act was in operation and due to
inadvertence, such ground was not incorporated in the plaint filed
before 31 March 2000, Plaintiff would be in a position to incorporate that
ground even after coming into effect of the MRC Act subject to the
objection of limitation and in such case, doctrine of relation back would
apply for application of the enactment. To illustrate, if suitable alternate
accommodation is acquired by the Plaintiff on 1 January 2000 and the
suit is filed on 1 February 2000 without incorporating the ground of
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acquisition of suitable alternate accommodation, Plaintiff can surely raise
the said ground for amending the plaint on 1 January 2002. The only
defence that can be raised in such case would be of limitation. Thus, the
key is not the date on which amendment is applied for or granted for
incorporation of a ground. The key is the date on which cause of action
arose for incorporation of ground in the plaint.
26) In the present case, the cause of action for default in payment
of rent was available to the Plaintiffs as on 3 November 1999 when the
suit was instituted. However, the suit on the ground of arrears of rent
could not be filed on 3 November 1999 on account of non-expiration of
period of 30 days from the date of receipt of notice dated 25 October
1999. Therefore, the suit on the ground of arrears of rent could not be
instituted on 3 November 1999 and was rightly not instituted based on
the demand notice dated 25 October 1999. The cause of action for filing
suit on ground of non-payment of rent, being continuous and concurrent
in nature, can arise even during pendency of the suit and can always be
independently raised in a pending suit. Thus, Plaintiffs were not
precluded from either filing an independent suit on the ground of
default in payment of rent or incorporating the said ground in the
pending suit even in respect of default after 3 November 1999. However,
unlike the other ground like acquisition of suitable alternate premises,
the grounds of default in payment of rent can be in respect of series of
events if the default continues during the period before and after filing of
the suit. This is exactly what has happened in the present case. The
default in payment of rent started from 1 January 1991 and it continued
till the date of institution of the suit on 3 November 1999. It appears that
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after appearing in the suit, the Defendants made first deposit of
Rs.12,500/- on 19 July 2001. Plaintiffs had consciously given up the claim
for default in payment of rent when the suit was instituted on 3
November 1999 and rent till July 2001 came to be deposited in the Court
by the Defendants on 19 July 2011. Thus, after 19 July 2001, the ground
of default in payment of rent was no longer available to the Plaintiffs.
The second deposit was made by the Defendants on 23 August 2002 of
Rs.1513/- and the same was in respect of rent upto August 2002. The next
deposit is made by the Defendants on 2 March 2005 of Rs.1860/- for rent
upto February 2005. Thus, when the suit was amended by filing
application on 24 August 2004, the rent upto August 2002 had already
been deposited in the Court. If Plaintiffs believed that there was default
in payment of rent from September 2002 onwards till August 2004 when
amendment was applied for and if they desired either filing of fresh suit
or amending the pending suit on the basis of subsequent default from
September 2002, Plaintiffs ought to have issued notice under Section
15(2) of the M.R.C. Act before instituting such fresh suit or before
incorporating an amendment in the pending suit. Plaintiffs did not do so
possibly because they desired incorporation of amendment with
reference to events that took place before institution of the suit. This
appears to be the reason why Plaintiffs made following pleading in the
amended plaint:
अशा परि रि तीत मुं बई भाडे रि यं त् ण कायद्याच्या कलम १२ (३) ु सा वादीस प् रितवादीकडू
दावा रिमळकतीचा ताबा मागण्याचा कायदे शी अरि&का प् ाप्त झाले ला आहे .
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27) Apart from specific pleading that right to recover possession
arose in favour of Plaintiff under Section 12(3) of the Bombay Rent Act,
the averments relating to valuation of the suit again leaves no manner of
doubt that the ground of default was relatable only to the events prior to
institution of the suit. Para-13 of the plaint before amendment reads
thus:
१३) दाव्याची आका णी कोर्ट. फी करि ता बा ा मरिहन्याचे भाडे रुपये १,०५९ -०० इतकेव
केली असू त्याव योग्य तो कोर्ट. फी र्टॅम्प भ ला आहे .
28) After amendment, para-13 of the plaint reads thus:
१३) दाव्याची आका णी कोर्ट. फी करि ता बा ा मरिहन्याचे भाडे रुपये १,०५८.०० इतकेव केली
असू त्याव योग्य तो कोर्ट. फी र्टॅम्प भ ला आहे . भाडे बाकीच्या मागणीसाठी वादी े दाव्याची
आका णी रुपये २२,५१०/- एवढी केले ली आहे . त्याबाबतचा तपशील-पु ढे रिदले ला आहे .
अ.क् . रुपये तपशील (रिद ांक)
०१) ९,३५९.०० रिद ांक ०१/०१/१९९१ ते ३१/१०/१९९९ पय.ंतची भाडे बाकीची क्कम.
०२) १,१२३.०८ रिद ांक ०१/०१/१९९१ ते ३१/१०/१९९९ पय.ंतची रिशक्षण क ांची होणा ी
क्कम.
०३) २,६४९.०० रिद ांक ०१/०१/१९९१ ते ३१/१०/१९९९ पय.ंतची इत क ांची दे य होणा ी
क्कम.
०४) ६,१८०.२० मु दतीबाहे गे लेली क्कम.
०५) ३,१७८.८० ३६ मरिहन्यांची द महा रुपये ८८.३० पै से या द ा े होणा ी क्कम.
29) Thus, no event relating to default after date of institution of
the suit is incorporated in the plaint. Para-9A again makes it clear that
the default in payment of rent is restricted only till 31 October 1999.
Considering the above factual position, I am unable to accept
Mr. Godbole's contention that the ground of default incorporated by way
of amendment in the year 2004 will have to be considered under the
provisions of the M.R.C. Act. In fact, Mr. Godbole is forced to take this
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stand contrary to Plaintiffs' own pleading in para-9A of the plaint with a
view to save the suit from being barred under the provisions of Section
12(2) of the Bombay Rent Act. Strenuous attempts made by Mr. Godbole
to do so would however not assist in getting over Plaintiffs' pleaded case
that the suit is filed under Section 12(3) of the Bombay Rent Act.
30) Once it is held that the ground of default was only in respect
of the period prior to filing of the suit and that the said ground was
raised under Section 12 of the Bombay Rent Act, the said ground
becomes not maintainable on account of provisions of sub-section 2 of
Section 12 of the Bombay Rent Act. Plaintiffs did not show patience of
waiting for 30 days after receipt of notice dated 25 October 1999 by
Defendants and hurriedly instituted the suit on 3 November 1993. They
must face the consequences of their hurried action. In fact, Plaintiffs were
aware that they could not seek recovery of possession on the ground of
default in payment of rent on account of provisions of Section 12(2) of
the Bombay Rent Act and therefore consciously omitted to incorporate
the ground of default in the plaint filed on 3 November 1999. Plaintiffs
were apparently confident of securing possession on other grounds and
therefore made conscious decision of omitting the ground of default in
payment of rent though they had addressed notice dated 25 October
1999 to the Defendants alleging default in payment of rent. Having made
a conscious choice of dropping the ground of default in payment of rent
in the suit as originally instituted, Plaintiffs cannot now be permitted to
take a volte-face and contend that the ground of default must be
considered in the light of provisions of Section 15(2) of the M.R.C. Act
with a view to use the notice dated 25 October 1999 for amended ground
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of default incorporated in the year 2004.
31) In my view therefore, the ground of default in payment of
rent was not available to the Plaintiffs in the light on non-expiration of
period of 30 days from the date of service of notice dated 25 October
1999 as amended under Section 12(2) of the Bombay Rent Act. Reliance
of Mr. Gorwadkar on judgments of this Court in Digambar Hari
Sonpatki, Jeetendra Vasantrao Nagarkar and Buvaji Shamrao
Kamble (supra) in support of his contention about non-maintainability
of suit in absence of valid demand notice therefore appears to be
apposite. The Trial and the Appellate Court have completely glossed
over this important aspect and have erroneously accepted the ground of
default by totally ignoring the provisions of Section 12 (2) of the Bombay
Rent Act.
32) So far as the provisions of Section 12(3) of the Bombay Rent
Act is concerned, the Defendants were required to pay or tender
standard rent and permitted increases 'then due' together with simple
interest at the rate of 9% on the first date of hearing of the suit. By now, it
is settled position of law that the first day of hearing of the suit is the
date on which the issues are framed. Though Mr. Gorwadkar has relied
on short order of the Apex Court in Gurdev Singh (supra) in support
of his contention that the first date of hearing means the first date of
effective hearing, the law in this regard is settled by the judgment of the
Apex Court in the case of Vasant Ganesh Damle Versus. Shrikant
Trimbak Datar & Ors.23
23 (2002) 4 SCC 183
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33) In the present case, by the time the ground of default in payment
of rent was added in the plaint, the Defendants had already made two
deposits viz. Rs.12,500/-on 19 July 2001 and Rs.1513/- on 23 August 2002.
The next deposit was made on 2 March 2005 of Rs. 1860/- and Rs.3,720/-
on 15 November 2006. Mr. Godbole has not been able to point out the
exact date on which the additional issue relating to default in payment of
rent was framed and whether there were any arrears of rent on the date
of framing of issues. Therefore, no case is made out to indicate failure on
the part of the Defendants to deposit the rent alongwith interest before
the date of framing of issues under the provisions of Section 12(3) of the
Bombay Rent Act. Therefore, reliance by Mr. Godbole on the judgment of
Full Bench of this Court in Babulal Fakirchand Agrawal (supra),
has no relevance to the present case. The said judgment is relied upon by
Mr. Godbole in support of his contention that the ground of failure to
deposit arrears of rent then due as well as to regularly pay the rent
during pendency of the suit under Section 15(3) of the MRC Act is
independently available to the Plaintiff irrespective of demand in the suit
notice being met. However, even if the said analogy is applied to the
pari materia provision under Section 12(3) of the Bombay Rent Act,
there is nothing on record to indicate as to whether any amount of rent
was due or payable on the date of framing of issues and whether there
was failure on the part of the Defendants to deposit the rent regularly
during pendency of the suit.
34) In my view, the Trial Court and the Appellate Court have
erroneously accepted the ground of default in payment of rent while
decreeing the suit of the Plaintiffs.
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C.2 INJURY/DESTRUCTION TO SUIT PREMISES AND ERECTING
PERMANENT CONSTRUCTION
35) The ground of injury and destruction to the suit premises
under Section 108(o) of the Transfer of Property Act read with Section
13(1)(a) of the Bombay Rent Act is decided by the Trial Court together
with the ground of erecting permanent structure under Section 13(1)(b)
of the Act. The Appellate Court has committed an error by mixing the
issues of default in payment of rent (Issue No.1) and raising of
permanent construction (Issue No.2) and answering the same together.
Be that as it may. Perusal of the pleadings in the plaint would indicate
that Plaintiffs listed various constructions allegedly carried out by the
Defendant in para-5 of the Plaint as under :
५) वादी यां ी यापूवी . मूद केले प् माणे प् रितवादी यां े रिफया.द कलम १ मध्ये वण.
केले ल्या दुका जागे व्यरितरि क्त इत कोणतीही जागा भाड्या े अग वाप ण्यास
रिदले ली ाही. अशी व तु रि ती असतां ा प् रितवादी यां ी दावा दुका ालगत उत्त े ला
रिमळकतीचे बाहे पूणप. णे बे कायदे शी पणे खालील प् माणे कामे केले ली आहे त.
अ) प् रितवादी यां ा दाबा दुका रिमळकतीचे उत्त वाजूस म्हणजे लक्ष्मी ोडचे बाजूला
से र्ट बँ कचे क्षे त् ात ६ फू र्ट रुं द, १६ फू र्ट लांब व ५ इं च उं च इतक्या क्षे त् फळाचे ओर्टयाचे
कायम वरुपी काम केले व तो ओर्टा वतःचे &ं द्यासाठी वाप क ण्यात सु रुवात केली.
सद ील बां &काम प् रितवादी यां ी सु मा े ४ वर्षाा.पव ू ी . केले .
ब) सद ील कलम (अ) मध्ये वण. केले ली जागा ही प् रितवादी दुका ाचा वाप म्हणू
क ीत आहे . त्यासाठी प् रितवादी यां ी रिव ाअरि&का दो शोकेस उभ्या केल्या असू
त्यामध्ये प् रितवादी यां ी रिवकावयाच्या व तू ठे वल्या आहे त.
क) प् रितवादी यां ी त्यांचे &ं द्याचे दुका ाची बॉक्स र्टाईप पार्टी ही से र्ट बँ कचे क्षे त् ात
लावली असू त्या पार्टीचा आका सु मा े १६ फू र्ट बाय ५ फू र्ट असू त्याची खोली
(डे प्स) ५ फू र्ट इतकी आहे .
ड) प् रितवादी यां ी ताब्यातील दुका ापासू सु मा े ३ फू र्ट द ू व रिसर्टी बैं क काड. या
ावाचा बोड. लावला असू त्याचे प् ोजे क्या हे से र्ट बैं क म&ील क्षे त् ात आहे .
इ) तसे च मूळ जी बॉक्स र्टाईप पार्टी लावली आहे त्याचे व ती दश. ी भागात
प् रितवादी यां ी वी रि ऑ /रिड प्ले बोड. लावला असू स बोडा.चे प् ोजे क्श हे
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सु ध्दा से र्ट बँ कचे भागात ये त आहे . त्या बोडा.चा आका १६ फू र्ट बाय ५ फू र्ट इतका
असू त्याची खोली म्हणजे डे प्स सु मा े एक फू र्टाची आहे .
ई) सद ील कलम (क) यामध्ये वण. केले ल्या बॉक्स र्टाईप पार्टी व त्याव ील शे डचे
र्ट् क्च दावा दुका ाचे छताचे हद्दीचे बाहे व ील बाजूस वाढवू दावा इमा तीचे
परिहल्या मजल्याचे हद्दीत ती फू र्ट दावा दुका ाचे हद्दी व्यरितरि क्त जादा उभा ले आहे .
(फ) प् रितवादी यां ी त्यांचे दुका ाला जी दो वज दा लोखं डी शर्ट लावली आहे त
ती से र्ट बॅ कचे भागात काढली.
36) Additionally, the pleadings in support of ground of breach
of conditions of tenancy are to be found in paras-6 and 7 of the plaint
which reads thus :
६) व कलम (५) मध्ये मूद केले ले, वण. केले ले प् रितवादी यांचे कृत्य लक्षात घे ता प् रितवादी
त्यां ा जी दुका जागा भाड्या े रिदले ली होती, त्याचे पेक्षा इत जागे चा सद प् माणे वरिहवार्ट
व वाप करु भाडे शती .च्या महत्वाच्या अर्टीचा भं ग केले ला आहे . प् रितवादी यांचे
दुका ापु ढील जो भाग आहे तो वादीचे मालकीचा असू तो पु णे महा ग पारिलकेचे जे सं बं&ीत
रि यम आहे त, त्या ु सा से र्ट बॅ कचे जागा आहे . त्या जागे म&ये म्हणजे से र्ट बॅ कचे जागे मध्ये
रि यमा ु सा कोणते ही बां &काम अग &ं द्यासाठी वाप अग कोणते ही प् का चे प् ोजे क्श
काढावयास म ाई आहे . सबब प् रितवादी यां ा सद से र्ट बॅ कची जागा क&ीही वाप ावयाची
प वा गी दे ण्याचा प् श् उद्भवत ाही आरिण सबब यापूवी . मूद केले प् माणे दुका ाचीच
जागा वाप ावयाची व इत अन्य कोणतीही ाही ही कायदे शी शत. सु ध्दा आहे . प् रितवादी
यां ी सद मूलभूत शतीचा . भं ग केले ला आहे हे उघड आहे . सबब वादी यां ा प् रितवादी यां ी
भाडे शतीचा. भं ग केला या तव दावा रिमळकतीचा ताबा रिमळणे आवश्यक आहे . वादी प् तु त
दाव्याचे कामी त्याप् माणे मागणी क ीत आहे .
७) वादी यांचे असे ही म्हणणे आहे की, प् रितवादी यां ी सद रिफया.दी कलम (५) मध्ये जे वण.
केले आहे त्याप् माणे जी दुका जागा भाड्या े रिदले ली होती त्या व्यरितरि क्त दावा दुका
लगतच्या से र्ट बॅ क जागे व अरितक् मण केले ले आहे . प् रितवादी यांची सद ील वागणूक म्हणजे
अरितक् मण करु वादी यांची जी जागा भाडया े रिदले ली ाही त्याचा वाप वतः आरिण
वादीचे इमा त रिमळकतीशी सं बंरि&त सले ल्या रितन्हाईत इसमाचे व्यवसायाचे जारिह ातीचे बोड.
लावू वाप क णे व वादी यां ा त्याची सद ील जागा वाप ण्यास मज्जाव व प् रितबं & क णे व
त्याव बे कायदा बां &काम क णे हे वत. कायदा व व तु रि ती याचा रिवचा क ता न्यु सन्स व
अ ॉयन्स वरुपाचे आहे . प् रितवादी यांची सद प् माणे वागणूक ही वादी यां ा सतत मा रिसक
क्ले श दे णा ी आहे . सबब वादी यां ा या का ण तव वादी यांचेकडू ताबा रिमळणे जरु ीचे आहे
आरिण वादी त्याप् माणे प् तु त दाव्याचे कामी त्याप् माणे मागणी क ीत आहे .
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37) Additionally, the Plaint contained pleadings relating to causing
damage to the building in which the suit premises are situated, in para-9
of the plaint which reads thus :
वादी यांचे असे म्हणणे आहे की, प् रितवादीयां ी ु कताच जो रि ऑ सायी रिड प्ले बोड.
लावला त्यासाठी लोखं डी फॅरिब् केर्टड रिग् लचा वाप केला. सद फॅरिब् केर्टड हे वी
र्ट् क्च साठी लोखं डी अं गलमध्ये ब वले ल्या फ् े म्सचे सहा मोठमोठ्या ब् ॅ केर्ट् स रिभं तीमध्ये
कायम वरूपी गुं तरिवण्यासाठी प् रितवादी यां ी वादीचे रिमळकतीचे उत्त बाजु कडील म्हणजे
लक्ष्मी ोड त्याचे बाजूकडील रिभं तीस भोक पाडू त्याची फोडतोड करू व वे रिल्डं ग करु
कायम वरुपी रिफक्स केले आरिण सद ग् ीलचे वज ही त्या रिभं तीव र्टाकले आहे . सद रिड प्ले
बोडा.चा आका , ग् ीलचा आका व बॉक्स र्टाईप बोडा.चा वज याचा रिवचा क ता
प् रितवादीं ी इमा तीचे लाईफचा रिवचा क ण्याऐवजी वतःचे जादा फायद्यासाठी सद
रिभं तीव रिव ाका ण व त्याचा बोजा वाढवला आहे . दावा इमा त ही सु मा े ५५ ६० वर्षाा.ची जु ी
आहे . प् रितवादीं ी लक्ष्मी ोड कडील दावा दुका ाची परिश्चमे कडील गोलाईची पक्क्या
रिवर्टांची, बंरिद त रिभं त फोडू त्या रिठकाणी ६ फू र्ट बाय ६ फू र्ट साईजचा ओप गाळा पाडू ते े
कायम वरुपी आ पा काचे ची शोकेस बसवू रिड प्ले केले व सद ६ फू र्ट बाय ५ फू र्ट
गाळयाबाहे कायम वरुपी वज दा लोखं डी शर्ट बसरिवले . प् रितवादीचे सद ील काम हे
पूण.पणे बे कायदे शी असू प् रितवादी ी दावा दुका ाचे सद भागाची पक्क्या रिवर्टांची रिभं त
फोडल्यामु ळे इमा तीचा सद भाग कमकुवत होवू त्याव वज दा लोखं डी ोरिलं ग शर्ट चा
बोजा र्टाकला आहे व इमा तीला कायम वरुपी &ोका रि मा.ण केला आहे . सद प् माणे काम
क ता ा प् रितवादी यां ी वादीची आरिण पु णे महा ग पारिलकेची ले खी प वा गी घे तली ाही.
वादी यां ी प् रितवादी यां ा अशा प् का ची प वा गी क&ीही रिदली व्हती व अशा प् का े
प वा गी दे ण्याचा प् श् च उद्भवत ाही. सबब याही का णा तव वादीचा दावा रिमळकतीचा
ताबा रिमळणे आवश्यक आहे व वादी त्याप् माणे दाव्याचे कामी मागणी क ीत आहे .
38) By way of amendment, paras-8A, 8B and 8C came to be
incorporated, which relate to events occurring during pendency of the
suit and which reads thus :
८) वादी यांचे यापूवी . केले ल्या रिव&ा ास बा&ा ये ता असे म्हणणे आहे की, प् रितवादी यां ी
रिफया.द कलम (५) मध्ये जे कायम वरुपी बां &काम केले आहे आरिण बदल केले ला आहे
त्यासाठी वादी अग पु णे महा ग पारिलका यांची कदापी प वा गी घे तले ली ाही. त्यामु ळे
सद ील सव. बां &काम हे पूणप . णे बे कायदे शी पणे आहे .
८अ) हा दावा प् लं रिबत असतां ा प् रितवादी यां ी दावा रिमळकतीच्या १० फू र्ट रिभं तीच्या आ&ा े
दुका ातील माल ठे वण्यासाठी कपार्टे तया केले ली आहे त. सद ील कपार्टे ती र्टप्प्यात (तळ
लगतचा र्टप्पा, म&ला र्टप्पा व छतालगतचा र्टप्पा) बसरिवले ली आहे त. वादी यांचे असे म्हणणे
आहे की, सद ील कपार्टे रिभं तीमध्ये कायम वरुपी बसरिवले ले आहे त. त्याचप् माणे सद ील
कपार्टां ा काचे चे द वाजे आहे त त्यामु ळे काचे चे द वाजे , कपार्टांचा व त्यातील सव. मालाचा
बोजा रिभं तीव व पया.या े इमा तीव पडत असू सद चे प् रितवादींचे बे कायदे शी कृत्य हे
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दावा दुका व दावा इमा तीचे ु कसा व इजा पोहोचरिवणा े व &ोका रि मा.ण क णा े आहे . वादी
यां ी दावा रिमळकतीतील परि रि ती दश.रिवणा े फोर्टोग् ाफ्स दाखल केले ले आहे त.
८ब) त्याचप् माणे प् रितवादी यां ी दावा रिमळकतीतील छतास बोजा होईल असे छतास
समांत अशी कपार्टे बसरिवले ले आहे त व त्यामध्ये दुका ातील रिवक् ीचा माल साठरिवले ला
आहे . छतास आ&ांत ी केले ली कायम वरुपी बसरिवण्यात आले ली कपार्टे हे प् रितवादीचे
बे कायदे शी कृत्य दावा दुका व दावा इमा तीचे ु कसा व इजा पोहोचरिवणा े व घोका रि मा.ण
क णा े आहे त्यामु ळे दावा रिमळकतीचा ताबा बादीस रिमळण्याचा हक्क रि मा.ण झाले ला आहे .
८क) वादी यांचे असे म्हणणे आहे की, प् रितवादी यां ी व मूद केले ले बदल क ण्यासाठी बादी
यांची क&ीही प वा गी घे तले ली ाही."
39) Plaintiffs led evidence of Mr. Manohar M. Paranjape,
Architect, who had prepared two maps in respect of the suit
premises and which have been admitted in evidence. Perusal of the
map at Exhibit-137 would indicate construction of platform ( Ota)
admeasuring 14.5' in length and varying width of 5.2' and 7' in front
of the suit premises. It appears that between the footpath abutting
Laxmi Road and the boundary of the building, there is open space,
which is described as road set back area. Construction of Ota has
been carried out in this vacant road set back space. Defendants do
not dispute existence of the said platform but claimed in the written
statement that the original owner, Sarjerao Jadhav had created
tenancy in respect of the suit premises together with vacant space in
front of the shop and that the tenancy covered the platform also.
However, in the Written Statement, Defendants are silent about the
exact point of time when the said platform was constructed. In the
Affidavit of Evidence, Defendants' witness has virtually copied the
contents of the Written statement with regard to existence of the
platform. However, the evidence also shows renovation of the suit
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premises by the Defendants in the year 1984. When the witness was
subjected to cross-examination, he gave a clear admission that, ' It is
correct to say that though the platform is not let out to us, we are
claiming the said platform as part and parcel of the tenanted
premises'. Thus, there is a specific admission by the Defendants that
the platform does not form part of the tenanted premises. However,
the factum of Defendants using the said platform is clearly
admitted. Mr. Gorwadkar would attempt to salvage this situation by
contending that the location of the platform is such that it is
impossible to enter the suit premises without making use of the
platform. While Mr. Gorwadkar is not entirely wrong in saying so,
considering the fact that the platform is located between the road
and the suit shop, the defence would have been accepted if the
platform was being used only for ingress and egress. However, it
has been proved by the Plaintiffs that the Defendants have
constructed two showcases on the said platform which are being
used for display of goods. The Map prepared by the Architect
would indicate presence of two glass showcases outside the shop.
Additionally, the signboards put up by the Defendants also
protrude into and cover the entire area of platform on the top of the
shop. It is thus conclusively proved that the platform, not forming
part of the suit premises, is encroached upon by the Defendants by
carrying out construction thereon.
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40) After considering the evidence on record, it is conclusively
proved that following constructions have been carried out within and
outside the suit shop:
(i)Ota/platform admeasuring 15'x 5'.2"x7'.0" in front of
the suit premises and in the road set back area.
(ii)two showcases which rest on the above ota/platform on
road facing external walls of the suit shop.
(iii)large box type signboard protruding into and covering
the entire road set back area admeasuring 66'' x 47''.
(iv)an additional box type display below the main display.
(v)additional signboard display on which advertisement of
City Bank Card is seen in the photographs.
(vi)removal of 9'' thick brick wall admeasuring 42'' x 53''
and replacing it with glass showcase for display of goods
in the front portion of the shop.
(vii)installation of two rolling shutters, one by replacing
the main wooden door of the shop and the other one to
shut the display showcase created by removal of brick wall
admeasuring 43'' x 53''.
41) It is sought to be contended by Mr. Gorwadkar that all the
structures are removable in nature and are incapable of causing nor have
actually caused any damage, destruction or injury to the structure. I am
unable to agree. The work of removal of brick wall admeasuring 45'' x
53'' on the front portion of the suit shop and replacement thereof by
showcase that display glass is not disputed by the Defendant. In para-19
of the Affidavit of Evidence, the Defendant's witness has stated that 'I
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say that the cupboards and furniture are constructed by the Defendant
since 1984'. Thus, construction of the said showcase is not disputed by
the Defendant. Nowhere in the Affidavit of Evidence it is stated that the
space at which the said showcase admeasuring 44'' x 53'' is erected was
vacant/void. It therefore has to be inferred that the Defendant broke the
brick wall and plaster on the front portion of the shop and replaced the
same by a showcase for display of goods from the front portion of the
shop. These structures cannot be treated as either temporary or
removable in nature. It therefore can easily be construed that the act of
the Defendant in breaking the brick wall and replacing the same with
glass showcase has caused injury and destruction to the suit premises. In
my view, the test for determining cause of destruction or injury to the
tenanted premises is simple. When the tenant vacates the suit premises
by removing the articles, fixture and furniture, whether the landlord
would get possession thereof in the same condition as they were first
let ? Ofcourse, few minor changes, furnitures etc. which can easily be
removed can be permitted so as to bring back the tenanted premises to
their original state. However, when the tenant breaks a brick wall of
tenanted premises that too on outer portion thereof, upon vacation of the
suit premises by him and after removal of the said glass showcase, can it
be said that the tenanted premises would stand restored to its original
position ? The answer to this question, to my mind, appears to be
emphatically in the negative. Removal of concerned showcase would
result in a void on account of breaking of the brick wall. Therefore, the
cause of injury and destruction to the tenanted premises has to be
inferred on account of act of the Defendant in breaking the brick wall
and replacing it with a showcase.
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42) Mr. Gorwadkar does not dispute the position that
construction relating to Ota/platform is of permanent nature and cannot
be treated as a removable structure not causing damage or destruction to
the suit property. However, Defendants have raised a plea that the Ota
has not been constructed by them. In the Written Statement, Defendants
have vaguely contended that they were allowed to use the vacant space
by the erstwhile landlord, which formed part of tenanted premises. It is
therefore vaguely contended in the Written Statement that between the
suit shop and footpath, there is a small platform which also forms part of
the tenanted premises. This defence is proved to be false on account of
specific admission by the Defendant's witness, as discussed above. In the
Written Statement, the words used are 'lahansa ota' (small platform).
Thus, what is sought to be conveyed in the Written Statement is that a
small platform existed at the time of creation of tenancy which also
formed part of the tenanted premises. However, the Architect's evidence
shows that platform which exists at the site today admeasures 14' 5'' in
length and 5' 2'' width at one side and 7' width on another side. Thus,
the area of the ota/platform is approximately 85 sq.ft. and on being
compared with the total size of the suit shop of 180 sq.ft, it cannot be
contended that the same is 'lahansa' (small), by any stretch of
imagination. Therefore, even if the defence of the Defendants about
existence of small platform at the time of creation of tenancy is accepted,
it is difficult to believe that what exists today at the site is a small
platform. The Defendants have either increased the size of platform or
constructed an altogether new platform admeasuring approximately 85
sq.ft. Plaintiff is specific, both in pleadings as well as in evidence, that the
platform has been constructed 3/4 years before the date of filing of the
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suit. As against this, the Defendant is vague about the date of
construction of platform as it stands today at the site. Therefore, the act
of the Defendants in either constructing or expanding the platform, as it
stands today at the site, would again tantamount to erection of
permanent structure within the meaning of Section 13(1)(b) of the
Bombay Rent Act. It is not Defendant's case, and rightly not canvassed
by Mr. Gorwadkar, that activity of construction outside the suit premises
cannot attract the provisions of Section 13(1)(b). This Court in Impex
(India) Limited (supra) has held that if a tenant carries on
construction outside the tenanted premises under a belief that the
portion in which construction is carried out is also a part of the tenanted
premises, the folly under Section 13(1)(b) would be deemed to have been
committed by the tenant.
43) So far as three display boards constructed by the Defendants
outside the suit shop are concerned, the main display board is a box type
structure having massive size admeasuring 15' 6'' x 4' 6'' which
admeasures area of approximately 70 sq.ft. Below the main display
board, there is another display board admeasuring 15' 6'' x 1' 6'' which
again admeasures about 24 sq.ft. There is third display board clearly
visible in the photographs on which advertisement of City Bank cards is
displayed. Thus in the matter of display boards also, Defendants/tenants
have undertaken massive construction/addition. Defendant's witness has
admitted that for installation of the said display boards, iron frame has
been fixed into the wall which is supported both from the floor and at
the top. There is thus embedment of a rod/pillar in the platform to
support the massive sized main display board. It is Plaintiffs' case that
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the height at which the main display board is constructed exceeds the
height of the suit shop.
44) Coming to the erection of two showcases outside the suit
shop, it is Plaintiff's case that the said erection was carried out during
pendency of the suit. That the said showcases comprise of three parts
abutting the ground, ceiling and wall which are permanently fixed at the
said three places thereby adding weight to the building and wall
endangering its life.
45) Defendants are also accused of construction of two rolling
shutters at the suit premises. It appears that one rolling shutter is erected
at the main entrance by replacing the wooden board. The second rolling
shutter is to shut the display showcase erected by breaking open the 9"
brick wall admeasuring 45'' x 53''.
46) Plaintiffs have also proved construction of several storage units
inside the suit shop by drilling holes in walls and ceiling.
47) Plaintiff has stated in his cross-examination that for making
various additions and construction at the site, Defendants have used
about 500 screws by drilling holes into the walls.
48) The Defendant himself has admitted in evidence that he did
not seek permission of the landlord while carrying out the above
changes. The relevant statement in the cross-examination of Defendant's
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witness reads thus :
'It is true that right from beginning I have not sought any
permission in writing from the landlord to carry out any
repairs of the suit premises'.
Thus absence of permission in writing for erecting above structures is an
admitted position.
49) Thus a bouquet of activities are carried out by Defendants/tenants
at the suit shop. To my mind, some of the activities might fall in the
category of 'permissible activities' since premises are used for running a
shop by Defendants. It is sought to be contended by Mr. Gorwadkar that
tenant doing business in a shop is entitled to make minor changes
required for convenience of trade. Thus the activities of putting up a
display board or construction of storage units inside the shop, or display
units on external walls of the shop may not, replacement of wooden door
with rolling shutter, may not, in strict sense, constitute material
alterations so as to infer destruction or injury to the structure in which
the premises are located. However, there are other activities like
construction of platform, breaking the external wall for replacement by
glass display unit, putting up additional rolling shutter at that display
unit, etc which may not fit into the category of 'removable' changes.
50) Having considered the nature of constructions put up by
Defendants/tenants at the site, it would be apposite to consider the law
expounded in various judgments on effect of such constructions on the
rights of the tenant to continue the tenancy. It would also be necessary to
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reproduce the relevant provisions of Bombay Rent Act and Transfer of
Property Act. Sections 13(1) (a) and (b) of the Bombay Rent Act provides
thus:
13. When landlord may recover possession
(1) Notwithstanding 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) that the tenant as committed any act contrary to the provision of clause (o)
of section 108 of the Transfer of Property Act, 1882; or
(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;
Since Section 13(1)(a) of the Bombay Rent Act refers to clause (o) of
Section 108 of the Transfer of Property Act, it would be relevant to
reproduce that provision as well:
108. Rights and liabilities of lessor and lessee.-- In the absence of a contract or
local usage to the contrary, the lessor and the lessee of immoveable property, as
against one another, respectively, possess the rights and are subject to the
liabilities mentioned in the rules next following, or such of them as are
applicable to the property leased:--
(B) Rights and Liabilities of the Lessee
(o) the lessee may use the property and its products if any as a person of
ordinary prudence would use them if they were his own; but he must not use,
or permit another to use, the property for a purpose other than that for which
it was leased, or fell or sell timber, pull down or damage buildings belonging
to the lessor, or work mines or quarries not open when the lease was granted,
or commit any other act which is destructive or permanently injurious thereto:
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51) Thus, for the purpose of present Suit, what needed to be
established for attracting the ground under Section 13(1)(a) of the
Bombay Rent Act read with Section 108(o) of the Transfer of Property Act
is 'commission any act which is destructive or permanently injurious' to
the suit premises.
52) Mr. Gorwadkar has contended that since destruction or
permanent injury to the premises is not proved, provisions of Section
108(o) of the Transfer of Property Act are not attracted. According to him,
since the suit shop is being used for conduct of trade, making necessary
changes for convenience of trade cannot attract provisions of Section
108(o) of the Transfer of Property Act or Section 13(1)(b) of the Bombay
Rent Act. He would rely upon judgment of the Apex Court in G.
Raghunathan (supra) in which the Apex Court has held in paras-5, 10,
11 and 12 as under:
5. The Rent Controller found that the rent note was inadmissible in
evidence. It was a tenancy from month to month. He found that the
tenant had defaulted payment of rent. An order for eviction under
Section 11(2) of the Act was liable to be passed. The fact that he had
deposited the entire rent during the pendency of the proceedings,
was relevant only for the purpose of Section 11(2)(c) of the Act. He
found that the question of material alteration had to be approached
from the angle of the landlord. From that angle, it was clear that by
the closing of the windows and the door, the amenity to the room
had been destroyed by the tenant. The fact that such closing of the
door and the windows was necessary to secure the jewellery of the
tenant was not relevant. What had been done amounted to material
alteration within the meaning of Section 11(4)(ii) of the Act. The
tenant was liable to be evicted. He, thus, ordered eviction on both
grounds.
11. This Court had considered the scope of the analogous provision
in sister enactments. The U.P. Cantonments (Control of Rent and
Eviction) Act was involved in Manmohan Das Vs. Bishun Das (1967
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(1) SCR 836). Even if the alterations did not cause any damage to the
premises or did not substantially diminish its value, the alterations
were material alterations. On that basis alone, the landlord was
entitled to evict the tenant. That was in the context of the provision
which enabled a landlord to get an order for eviction, if the tenant
had, without the permission of the landlord, made any construction
which has materially altered the accommodation. Eviction could also
be ordered even if that construction or alteration was likely to
substantially diminish the value of the building. The difference with
the Kerala Act is that the two requirements were disjunctive. It was
enough to satisfy either one of them. It was clarified that although the
expression "material alteration" was not defined, the question would
depend on the facts of each case. In that case the acts of the tenant
were held to amount to material alterations. In Om Prakash Vs. Amar
Singh (AIR 1987 SC 617) interpreting the same provision, it was held
that the question whether a construction materially altered the
accommodation was a mixed question of fact and law. The dictionary
meaning of the expression "materially" and "alter" were considered. It
was held to mean "a substantial change in the character, form and the
structure of the building without destroying its identity". It had to be
seen whether the constructions were substantial in nature and they
altered the form, front and structure of the accommodation. No
exhaustive list of constructions that constitute material alteration
could be given. The determination of that question depended on the
facts of each case. On facts, it was held that there was no material
alteration. It was also laid down that the construction of a temporary
shed in the premises which could easily be removed did not come
within the mischief of the section. Brijendra Nath Vs. Harsh Wardhan
1988 (2) SCR 124) held that the construction of a wooden balcony in
the showroom did not amount to material alteration. Replacing of
wooden plank on the front door of the building by a rolling shutter
was held to be not an alteration that caused any damage to the
building and that was held not to provide a ground for eviction in
Arunachalam (died) through L.Rs. and another Vs.
Thondarperienambi and another (AIR 1992 SC 977). In Vipin Kumar
vs. Roshan Lal Anand (1993 (2) SCC 614) a claim under Section 13(2)
(iii) of the East Punjab Urban Rent Restriction Act, 1949, it was held
that the impairment of the value or utility of the building was from
the point of the landlord and not of the tenant. It had to be shown
that there was impairment of the building due to acts of the tenant
and, secondly, it had to be shown that the utility or value of the
building had been materially impaired. The Court went on to say that
the statute on proof of facts gave discretion to the Court to order
eviction. The wording of the provision was "if the tenant has
committed such acts as are likely to impair the value or utility of the
building or rented land". The Rent Controller had to independently
consider and exercise the discretion vested in him keeping in view
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the proved facts to decree ejectment. It was for the landlord to prove
such facts which warrant the Controller to order eviction in his
favour. In Waryam Singh Vs. Baldev Singh (2003 (1) SCC 59)
construing the same provision, it was held that enclosing a verandah
by constructing walls and placing a rolling shutter in front, did not
justify an inference that the value or utility of the building had been
impaired, in the absence of evidence led by the landlord to prove that
the value or utility had been affected. So an order of eviction could
not be granted.
12. From the above, it is clear that the question depends on the facts
of the case. The nature of the building, the purpose of the letting, the
terms of the contract and the nature of the interference with the
structure by the tenant, are all relevant. The destruction or damage
has to be adjudged from the standpoint of the landlord. Let us look at
the facts in the present case. The building is 75 years old. According
to the tenant, it is 80 years old. The difference is not of any
significance. It is the northern room in a building consisting of a
number of rooms. It is let out for 15 years for a jewellery trade. The
term has, of course, not come into effect for want of registration of the
deed. The door in the western wall has been bricked up. The
windows on the northern, western and southern walls have also been
bricked up. Obviously, the bricked up portions can be removed and
the doors and windows restored without weakening the structure.
But more importantly, the level of the floor was lowered, the rafters
cut, two concrete pillars erected and a rolling shutter fixed. The
lowering of the floor and the tampering with of the roof, is of some
significance. They could lead to impairment of the value or utility of
the building, materially and permanently. That again has to be
judged in the light of the surrounding circumstances. But a rolling
shutter has been fixed. That provides more security to the premises.
The height of the floor can be restored without impairment to the
structure. Here, we find that the landlord has not even pleaded that
the alterations made by the tenant have destroyed or reduced the
value or utility of the building materially and permanently. No
doubt, he has stated so in his evidence. But the tenant has stated that,
considering that it was a jewellery business that was being started,
these things had to be done. Securing of the premises was essential.
He had given to the landlord Rs. 85,000/- as security to be returned,
when he vacated the building. The value of the building, if at all, has
only been enhanced. In this state of the record, it is not possible to
infer that the acts of the tenant have materially and permanently
destroyed or reduced the value or utility of the building. The age of
the building cannot be ignored. The purpose of the letting cannot be
ignored.
(emphasis and underlining added)
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53) Relying on judgment in G. Raghunathan (supra), Mr.
Gorwadkar has contended that alteration did not cause any damage
to the suit premises, nor did it substantially diminish its value and
therefore alterations cannot be true as material alterations. In that
case, the Apex Court has held that fixing of rolling shutter did not
amount to cause of destruction or damage to the property.
According to him, the Apex Court has held that fixing of rolling
shutters provides mere security to the premises. However, in para-
12 of the judgment in G. Raghunathan, the Apex Court has
observed that the landlord in that case did not even plead that the
alterations made by the tenant had destroyed or reduced the value
or utility of the building materially and permanently. In the present
case, there is specific pleading of causing damage to the building in
the plaint.
54) Mr. Gorwadkar has also relied upon judgment of the
Apex Court in Hari Rao (supra), in which the allegation was about
fixing of signboard, racks and taking of independent three phase
electric connection by drilling holes for that purpose and whether
such acts amounted to commission of waste in the building
attracting provisions of Section 10(2)(ii)(b) of the Tamil Nadu
Buildings (Lease and Rent Control), 1960. The Apex Court has held
in para-9 as under :
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9. In support of his claim for eviction under Section 10(2)(iii) of the Act,
what the landlord pleaded was that his tenant had put up new sign-
boards and fixed two additional racks by drilling holes in the wall and in
the beam and had taken an independent electric connection for which
holes have been drilled in the floor and the wall, and all this amounted to
commission of acts of waste as are likely to impair materially the value
and utility of the building. He also pleaded that the tenant had damaged
the building while converting the shop for selling readymade dresses. He
had installed additional show-cases on the walls of the building by
making holes therein. He had increased the consumption of electricity by
fixing up more lights and fans. He had increased the electric load,
causing constant blowing out of the fuse in the building and causing
damage to the electric service connection to the whole building and the
entire building may catch fire at any moment. He also put up a big name
board outside, damaging the building and had also drawn heavy
electrical lines and taken service connection to the name board, with a
heavy load of electricity. The tenant admitted the putting up of sign-
boards and the fixing up of racks but he denied that he had caused any
damage. Whatever he had done was with the consent of the landlord and
the claim put forward by the landlord was only an attempt to gain the
sympathy of the Court. The Engineer, P.W. 2 noted that new racks were
fixed by making holes in floor walls and also in the beams. Two new
massive sign boards were fixed in the front and side. Holes were made in
the parapet wall of the first floor and angle irons supporting the sign
boards were fixed. The parapet wall was only 2" thick and it could not
take the weight of the huge sign boards and the parapet wall may
collapse at any time. New electric connection has been given by making
holes in the foundation and the wall in front and a new meter board had
been fixed. This report of P.W.2 was not sought to be corroborated by any
other material to show that there was any danger because of the taking of
a new electric connection or by the increase in load. It is true that for the
purpose of his trade, the tenant fixed new racks by making holes in the
floor, the walls and in the beams. But, in the absence of any other
material, it cannot be said to be the commission of acts of waste as are
likely to impair materially the value and utility of the building. We must
say that there is hardly any evidence on the side of the landlord to show
that there was material impairment, either in the value or the utility of
the building by the acts of the tenant. The mere fixing of sign-boards
outside the shop by taking support from the parapet wall, cannot be
considered to be an act of waste which is likely to impair materially the
value or utility of the building. The report of the Engineer, P.W.2, merely
asserts that the parapet wall will collapse at any time. There is no
supporting evidence in respect of that assertion. Ex. B1-letter of the
landlord giving permission to the tenant to fix boards, cannot also be
ignored in this context. Moreover, when a trade is carried on in a
premises, that too in an important locality in a city, it is obvious that the
tenant would have to fix sign-boards outside, to attract customers. These
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are days of fierce competition and unless the premises is made attractive
by lighting and other means, a trader would not be in a position to attract
customers or survive in the trade. Therefore, the acts of the tenant
established, are merely acts which are consistent with the needs of the
tenant who has taken the premises on rent for the purpose of a trade in
leather goods and shoes and in furtherance of the prospects of that trade.
The fixing of racks inside the premises even by drilling holes in the walls
or beams cannot be said to be acts which are themselves acts of waste as
are likely to impair materially the value and utility of the building.
Broadly, a structural alteration however slight, should be involved to
attract Section 10 (2) (iii) of the Act. In fact, we see hardly any pleading or
evidence in this case which would justify a conclusion that the acts of the
tenant amount to such acts of waste as are likely to impair materially the
value and utility of the building. In G. Arunachalam (died) through L.Rs.
and anr. Vs. Thondarperienambi and anr. [AIR 1992 SC 977] dealing with
the same provision, this Court held that the fixing of rolling shutters by
the tenant in place of the wooden plank of the front door by itself did not
amount to a structural alteration that impaired the value of the building
and no eviction could be ordered under Section 10(2)(iii) of the Act. Of
course, in that case, there was also a report by an Engineer that the
structural alteration made for fixing the rolling shutter, did not impair
the value of the building. In the context of the Kerala statute which spoke
of impairment in the value or utility of the building materially and
permanently, this Court has recently held in G. Raghunathan Vs. K.V.
Varghese [2005 (6) SCALE 675] that the fixing up of rolling shutter and
doing of the allied acts referred to in that decision, would not amount to
user that materially and permanently impairs the value or utility of the
building. The Act here, only speaks of acts of waste as are likely to impair
materially the value and utility of the building. The impairment need not
be permanent. But even then, it appears to us that it must really be a
material impairment in the value or utility of the building. In British
Motor Car Co. Vs. Madan Lal Saggi (Dead) and anr. [(2005) 1 SCC 8], this
Court considered the aspect of material alteration or damage in the
context of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act,
1949. In the lease deed in that case, there was a covenant that the lessee
will not make any addition or alteration or change in the building during
the period of the tenancy. This Court referred to Om Prakash Vs. Amar
Singh [(1987) 1 SCC 458], Om Pal Vs. Anand Swarup [(1988) 4 SCC 545],
Waryam Singh Vs. Baldev Singh [(2003) 1 SCC 59], Gurbachan Singh Vs.
Shivalak Rubber Industries [(1996) 2 SCC 626], Vipin Kumar Vs. Roshan
Lal Anand [(1993) 2 SCC 614] and held, 'When a construction is alleged to
have materially impaired the value and utility of the premises, the
construction should be of such a nature as to substantially diminish the
value of the building either from the commercial and monetary point of
view or from the utilitarian aspect of the building.' There is hardly any
material in the present case on the basis of which the Court could come
to the conclusion that the act of the tenant here has amounted to
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commission of such acts of waste as are likely to impair materially the
value and utility of the building. The Rent Controller and the High Court
have not properly applied their minds to the relevant aspects in the
context of the statute and have acted without jurisdiction in passing an
order of eviction under Section 10 (2) (iii) of the Act. The Appellate
Authority was justified in denying an order of eviction to the landlord on
this ground.
(emphasis added)
55) In Venkatlal G. Pitte (supra), the Apex Court has held
that the issue as to whether the structure is permanent or not is a mixed
question of law and fact. Mr. Gorwadkar has relied upon the judgment
in Venkatlal G. Pitte, in support of his contention that the landlord
accepting rent and continuing tenancy despite full knowledge of the
additions to the structure since 1984 disentitled him to seek decree for
eviction. He has also relied upon the said judgment in support of his
contention that if the structure is found to be easily removable, without
causing serious damage to the premises, the same would not amount to
permanent structure leading to forfeiture. The Trial Court has relied
upon the judgment in Venkatlal G. Pitte for considering the
parameters for determining the nature of the structure. In Venkatlal G.
Pitte, the Apex Court held in paras-18, 19 and 22 as under :
18. In this connection reference may be made to a decision of the
Special Bench of the Calcutta High Court in the case Surya
Properties Private Ltd. and others v. Bimalendu Nath Sarkar and
others. A.I.R. 1964 Calcutta p. 1 which dealt with clause (p) of
section 108 of the Transfer of Property Act, 1882 and held that this
question was dependent on the facts of each case and no hard and
fast rule can be laid down with regard to this matter. In the absence
of any relevant materials, therefore, the Full Bench found that no
answer could be given. in a slightly different context, before
Calcutta High Court in the case of M/s Suraya Properties Private
Ltd. v. Bimalendu Nath Sarkar. A.I.R. 1965 Calcutta page 408,
Chatterjee, J., one of the judges of the Division Bench observed that
the phrase 'permanent structure' for purposes of clause (p) of
section 108 of the Transfer of Property Act meant a structure which
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was capable of lasting till the term of the lease and which was
constructed in the view of being built up as was a building. In that
context the learned judge observed that a reservoir was not,
however, a permanent structure for purposes of clause (p) of section
108 of the Transfer of Property Act. Sen, J. of the same Bench was of
the view that no hard and fast tests could be laid down for
determining the question whether a particular structure by the
tenant was a permanent structure for the purpose of clause (p) of
section 108 of the Transfer of Property Act. The answer to the
question depended on the facts of each case. Chatterjee, J., however,
took the view that where the tenant created a permanent structure
in the premises leased to him, as the lease continued in spite of the
disputed structure and the landlord continued to receive rent till the
determining of the lease by notice to quit or thereafter till the
passing of the decree for eviction and the fact that he accepted rent
with full knowledge of the disputed structure did not disentitle him
to a decree for eviction.
19. In Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad.
A.I.R. 1.965 Gujarat, 152, in connection with section 13(1)(b) of the
Rent Act, Gujarat High Court held that the permanent structure
must be one which was a lasting structure and that would depend
upon the nature of structure. The permanent or temporary character
of the structure would have to be determined having regard to the
nature of the structure and the nature of the materials used in the
making of the structure and the manner in which the structure was
erected and not on the basis of how long the tenant intended to
make use of the structure. As a matter of fact, the Court observed,
the nature of the structure itself would reflect whether the tenant
intended that it should exist and be available for use for a temporary
period or for an indefinite period of time. The test provided by the
Legislature was thus an objective test and not a subjective one and
once it was shown that the structure erected by the tenant was of
such a nature as to be lasting in duration lasting of course according
to ordinary notions of mankind the tenant cannot come forward and
say that it was erected for temporary purpose.
22. Judged in the aforesaid light on an analysis of the evidence the
trial court as well as the appellate court had held that the structures
were permanent. The High Court observed that in judging whether
the structures were permanent or not, the following factors should
be taken into consideration referring to an unreported decision of
Malvankar J. in special civil application No. 121 of 1968. These were
(1) intention of the party who put up the structure; (2) this intention
was to be gathered from the mode and degree of annexation; (3) if
the structure cannot be removed without doing irreparable damage
to the demised premises then that would be certainly one of the
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circumstances to be considered while deciding the question of
intention. Like- wise, dimensions of the structure and (4) its
removability had to be taken into consideration. But these were not
the sole tests. (5) the purpose of erecting the structure is another
relevant factor. (6) the nature of the materials used for the structure
and (7) lastly the durability of the structure. These were the broad
tests. The High Court applied these tests. So had the Trial Court as
well as the appellate bench of Court of Small causes.
56) Mr. Gorwadkar has relied upon judgment of Single Judge of
this Court in Somnath Krishnaji Gangal (supra) concluding certain
principles on the issue of permanent nature of structure in para-21 of the
judgment as under :
21. In view of the decisions of the Hon'ble Supreme Court and of this
Court, my conclusions are as under :
(i) In deciding the question as to what is a "permanent structure", it is
necessary to consider the mode and degree of annexation as also the
intention of the party putting up the structure. The creation of such a
work or addition thereof in order to amount to a permanent structure
must cause and bring about a substantial improvement and change
in the nature and form of accommodation.
(ii) If what has been done it by way of minor repairs for the better
enjoyment and use of the premises, it cannot be regarded as a
permanent structure. Similarly, if the object and purpose of
annexation was only to better the mode of enjoyment of the demised
premises as in the case of construction of the kitchen platform, it
does not amount to a permanent structure within the meaning of
section 13(1)(b) of the said Rent Act.
(iii) The essential element which needs consideration is as to whether
the construction is substantial in nature and whether it alters the
form, front and structure of the accommodation.
(iv) If what the tenant does in large scale renovation like replacement
of the entire roof, covering it with marble tiles, without obtaining
permission of the landlord, it may amount to permanent structure
within the meaning of section 13(1)(b) of the Rent Act.
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(v) Similarly, if the tenant constructs a bathroom in the gallery which
puts additional burden in the gallery which is harmful to the
structure of the building, it would amount to a permanent structure.
57) Mr. Gorwadkar, has also relied upon judgment of Single
Judge of this Court in Manoramabai Vishnu Limaye (supra), in
support of his contention that if the construction is removable and made
on temporary basis, not causing any harm to the structure, decree for
eviction cannot be passed. This Court held in para-9 as under:
"9. In the aforesaid cases, the courts have laid down the points and
matter to be considered for deciding whether a construction is a
permanent construction or that it amounts to an alteration in the suit
premises. One of the tests laid down is to consider whether the alleged
permanent construction tends to make changes in the accommodation
on a permanent basis. A temporary construction made on a temporary
basis that does not ordinarily harm a structure of the building and can
be easily removed without causing damage to the building is not
regarded as a permanent structure or an offending alteration. Intention
of the party is also relevant. Whether the party intended to make a
construction of a permanent nature or not is also relevant. Counsel for
the tenant calling upon me to follow these tests submitted that on a
complaint being made by the landlady, the Municipal Authorities had
removed the commode on 24th June, 1985. In the process of removal no
damage was caused to the property and the commode could be
removed easily without causing any damage to the property. Taking
this into consideration the decision of the two courts below that the
construction was not a permanent construction, in my opinion, is a
possible view and does not require any interference in exercise of an
extra ordinary jurisdiction under Article 227 of the Constitution of
India.
58) The judgment of the Apex Court in Om Pal (supra) is relied
upon in support of the contention that temporary construction not
substantially diminishing value of the building from commercial or
monetary point of view would not result in forfeiture of tenancy. The
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Apex Court held in para-9 as under :
9. In the light of these decisions, if we examine the present case we
find that the Rent Controller and the Appellate Authority as well as
the High Court have obviously failed to construe Section 13(2)(iii) in
its proper perspective and they have failed to apply the correct legal
tests for judging the nature o the constructions made by the appellant.
As has been repeated pointed out in several decisions it is not every
construction or alteration that would result in material impairment to
the value or the utility of the building. In order to attract Section
13(2)9ii) the construction must not only be one affecting or
diminishing the value or utility of the building but such impairment
must be of a material nature i.e. of a substantial and significant
nature. It was pointed out in Om Prakash v. Amar Singh (at SCC
p.463) that the legislature had intended that only those constructions
which brought about a substantial change in the front and structure of
the building that would provide a ground for the tenant's eviction and
hence it had taken care to use the word 'materially altered the
accommodation" and as such the construction of a chabutra, almirah,
opening of window or closing a verandah by temporary structure or
replacing of a leaking roof or placing partition in a room or making
minor alterations for the convenient use of the accommodation would
not materially alter the building. It would therefore follow that when
a construction is alleged to materially impair the value or utility of a
building, the construction should be of such a nature as to
substantially diminish the value of the building either from the
commercial and monetary point of view or from the utilitarian aspect
of the building.
59) The judgment of this Court Keshavji Ramji Sanghavi
(supra) is relied upon in support of the contention that damage or injury
to the property leased is essential before the landlord can rely upon
contravention of Section 108(o) of the Transfer of Property Act. This
Court held in paras-4 and 9 as under :
4. I do not think that if a termite affected beam is replaced with a new
one and is removed, it can be said to be an act of imprudence on the
part of the tenant. By no stretch of words, can it be said that removing
such a old and hazardous beam and putting a new beam is an act
contrary to provisions of Cl.(o) of S.108 of the Transfer of Property Act,
1882.
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9....The damage or injury to the property leased is, therefore, essential
before the landlord can rely on the act as one in contravention of
Section 108(o) of the Transfer of Property Act within the meaning of
Section 13(1)(a) of the Bombay Rent Act....
60) From the above quoted judgments, the broad principles that
can be culled out are as under:
(i) the structure must be permanent in nature, which is
incapable of being removed.
(ii) a temporary structure which can easily be removed
without causing damage to the building/structure would not
attract forfeiture of tenancy.
(iii) substantial damage to the structure/building must be
proved in addition to diminishing its value.
(iv) minor changes made for convenience of trade would not
amount to material alterations in the tenanted premises.
61) In the present case, as observed above, there are numerous
additions and alterations inside and outside the suit premises. Though
each of those additions or alterations may not amount to destruction or
permanent injury to the suit premises within the meaning of Section
108(o) of Transfer of Property Act or a permanent structure within the
meaning of Section 13(1)(b) of the Bombay Rent Act, couple of them, in
my view do conform to the said statutory provisions. Construction/
extension of platform would definitely amount to erecting of permanent
structure. Breaking open of outside brick wall and installing of glass
showcase by covering the same with rolling shutter would clearly
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amount to cause of permanent injury and destruction of the premises.
Though putting of a signboard to attract customers per se may not
strictly amount to permanent injury or destruction of premises or
erecting of permanent structure. However the tenants could have simply
put up one large display board to attract customers to their shop. What
is however done is construction of three signboards, two for display of
its own name and third one for profiteering by displaying advertisement
of City Bank. Installation of the main massive sized board required
construction of large iron fabrication frame with support from side, top
and bottom. A rod is embedded in the platform to support the sign
board. Therefore though in ordinary course, putting up of a mere
signboard may not ipso facto attract Section 108(o) or 13(1)(b), in the
present case, the manner and purpose for which the three signboards are
put up would lead to inference of permanent injury and destruction of
suit premises.
62) Turning to the aspect of rolling shutter, it appears that the Single
Judge of this Court (V.C. Daga, J.) has held in Dr. C.C. Yi (supra) that
removal of door and replacement thereof by rolling shutter amounts to
change in the permanent structure. This Court held in para-25 as under:
25. The second item of construction i.e. removal of wooden doors
and replacement thereof by plywood doors, even if considered
separately, the result cannot be different. Once the door is fitted to the
permanent structure, it becomes part of the immovable property, viz.
Building. It does not remain a movable item or a distinct item of
furniture. Therefore, removal of door or replacement thereof is nothing
but a change in the permanent structure. The judicial note can always
be taken of the fact that durability of wooden doors is much more from
than that of the plywood doors. Life of the plywood doors cannot
match with that of wooden doors. Thus, this act of tenant has also
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been prejudicial to the interest of the landlord and has diminished the
value and life of the doors and consequently of the suit premises. As
such, the act of replacement of the wooden doors with that of plywood
doors that too without written permission of the landlords has rightly
been treated as an act in violation of Section 13(1)(b) of the Act by both
the courts below.
63) However, Mr. Gowadkar has relied upon judgment of the
Apex Court in G. Raghunathan, in which it is held that fixation of
rolling shutter provides more security to the premises. In my view, mere
replacement of old door by installation of rolling shutter in relation to a
commercial shop would not, in every case, constitute material change in
the tenanted structure. It would depend on the facts and circumstances
on each case. It would be too conservative to expect that the tenant
should continue to use the same old wooden door when most of the
shops in the cities are protected by way of rolling shutters, which not
only provide convenience but also generates a sense of security.
Therefore, mere replacement of front door of the suit premises with
rolling shutter, in my view, would not amount to erection of any
permanent structure or commission of an act injurious or destructive to
the tenanted premises. However, in the present case, in addition to
replacement of the wooden door with rolling shutter, the Defendants
have installed additional rolling shutter at the portion where 9'' thick
brick wall and plaster is broken and replaced with a glass showcase. The
portion at which the glass showcase is installed is being shut by another
separate and independent rolling shutter. This act, in my view, was quite
unnecessary. As held above, the main act of breaking upon the outside
brick wall and replacing it with showcase itself amounts to material
change in the tenanted premises. Putting of a rolling shutter at that
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portion adds premium to the illegal act already committed. Therefore,
the action of installation of rolling shutter to the limited extent of the
second small rolling shutter at display board is found to be violative of
Section 13(1)(a) and 13(1)(b) of the Bombay Rent Act.
64) Considering the nature of activity undertaken by the Defendants,
it is difficult to hold that every structure erected by the Defendants is
temporary or removable in nature or has not caused any material change
in the tenanted premises or has not caused any injury or destruction
thereof.
65) In my view, therefore the Trial and the Appellate Court have
correctly upheld the grounds under Section 13(1)(a) read with Section
108(o) of the Transfer of Property Act and Section 13(1)(b) of the Bombay
Rent Act.
66) Mr. Gorwadkar has raised the issue of limitation in filing the
suit relating to the grounds of Section 13(1)(a) and 13(1)(b) of the
Bombay Rent Act. According to him, the renovation in the building is
carried out in the year 1984 and that therefore the suit ought to have
been brought within 12 years of such renovation under Article 66 of the
Limitation Act. Mr. Gorwadkar has relied upon judgment of this Court
in Shashikant Yeshwant Limaye and another Versus.
Chintaman Vinayak Kolhatkar and others 24 and the judgment of
the Apex Court in Ganpat Ram Sharma and others Versus.
Gayatri Devi25 in support of his contention about applicability of
24 2010 (5) Mh.L.J. 527.
25 (1987) 3 SCC 576.
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Article 66 of the Limitation Act. There can be no dispute about the
proposition that Article 66 of the Limitation Act would apply and not
Article 67 as erroneously pleaded by Plaintiffs in the plaint.
67) However, the Plaintiffs pleaded the case that the construction and
erections were effected 3/4 years prior to the date of filing of the suit. In
the light of this assertion on the part of the Plaintiff, it was incumbent for
the Defendant to prove that the concerned construction took place in the
year 1984. However, no evidence is produced by the Defendants to prove
carrying out of constructions in the year 1984. In fact, some of the
constructions are allegedly carried out during pendency of the suit. I am
therefore unable to uphold the ground of limitation sought to be urged
by Mr. Gorwadkar.
68) Plaintiffs have thus established the grounds of (i)
destruction and permanent injury to premises under section 13(1)(a)
read with Section 108(o) of Transfer of Property Act as well as (ii)
erecting permanent structure without landlord's consent in writing.
D. ORDER
69) After considering the overall conspectus of the case, though
it is held that the Trial Court and the Appellate Court have committed an
error in accepting the ground of default in payment of rent, the decree is
still required to be sustained on the grounds of Section 13(1)(a)
(destruction and permanent injury to premises) and 13(1)(b) (erecting
permanent structure) of the Bombay Rent Act. The impugned decree is
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thus unexceptional not warranting any interference in concurrent
findings recorded on those grounds by both the Courts in exercise of
revisionary jurisdiction of this Court under Section 115 of the Code. The
Civil Revision Application is accordingly dismissed with costs.
70) Considering the facts and circumstances of the present case,
the Defendant shall vacate the suit premises on/or before 31 December
2024 without affecting the right of the Plaintiff to claim mesne profits.
(SANDEEP V. MARNE, J.)
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