(1.) This revision preferred under Sec. 50 of the Karnataka Rent Control Act, 1961 calls in question the decision of the learned Distt. Judge, S. Kanara, Mangalore, who has reversed the judgment of the Addl. Munsiff, Udupi, and thereby held that the petitioner-tenant erected a permanent Construction and thereby enable the landlord for his ejectment under Sec. 21(1)(c) of the Act. The landlord U. Srinivasa Acharya was the owner of three rooms of which one room was given in the tenancy of Padmanabha Shattigara (petitioner) and in front of that room there was some open space known as 'Jagali' which was also used by the tenant. Similar construction existed in respect of other two rooms which were also with the tenants. The landlord filed a petition before the learned Munsiff under Sec. 21(1)(c) and (h) his contention was that the tenant converted the 'Jagali' into another room attached to the shop inasmuch as he had removed the intermediary door and placed it towards South at the extreme end of the 'Jagali', thereby he erected a permanent construction and as such under Clause (c) of Sec. 21(1) he was liable to be evicted. The other ground under Clause (h) related to the reasonable and bonafide requirement of the landlord. In the trial Court the plea as to reasonable and bonafide requirement of the landlord was not believed and the learned Munsiff also held that the 'Jagali' construction was not permanent and therefore he dismissed the petition. The landlord thereafter came in appeal before the learned Distt. Judge and the latter reversed the finding of the learned Munsiff on the point of permanent construction having been erected by the tenant. However, he confirmed the finding of the learned Munsiff so far as it related to the reasonable and bonafide requirement of the landlord. The result was that the appeal succeeded and the petition for recovery of possession was allowed. The tenant has now come up in revision.
(2.) The learned Counsel for the petitioner-tenant essentially argued on the question relating to permanent structure as embodied in the proviso (c) of Sec. 21(1) and submitted that the 'Jagali' construction could not be considered a permanent structure and as such the said ground was not made out for eviction of the tenant. As held by the Supreme Court in Datton Pant Vs. Vithal Rao, 1976 Rent Control Reporter 128 : AIR 1975 Supreme Court 1111, although the High Court in a revision under Sec. 50 does not convert itself into a second Court of first appeal, yet, exercises revisional power wider than provided for in Sec. 115 of the CPC. The learned Counsel therefore, submitted that the decision of the learned Dist. Judge being illegal and incorrect on this point need be revised and in that connection he referred to the entire evidence that was adduced in the case. He also made reference to the report Exts. 4 and P6 submitted by the Commissioner. In the report Ex. P4, it is specified that the ceiling of the 'Jagali' is of wood and that there are no wooden shutters on the southern side of the portion 'A' which is in fact the extreme northern side of the new construction. According to the tenant, the wooden shutters were worn out and therefore the same could not give any security to the shop. The Commissioner further pointed out that the 'Jagali' has only been covered within four wooden poles on two sides by using what he called 'wild jack planks', and that has been done for the protection of the goods which are being kept inside the 'Jagali'. The old wooden frame of the door is there because the leaves of that door are perhaps removed by the tenant. The second report of the Commissioner Ext. P6 definitely indicated that the doors are worn out and that is why the tenant removed them which were necessary for security as well as enjoyment of the shop. The Respondent-landlord gave his statement and also produced the commissioner to prove these reports. According to the landlord, similar 'Jagali' construction has been made by the other two tenants. Further he stated that the construction made by the other tenants are temporary although the construction made by the petitioner-tenant is permanent. The petitioner-tenant gave his own statement and produced two witnesses of whom RW. 3, is one of the tenants in the adjoining rooms. According to RW. 3, his 'Jagali' construction is similar to the construction made by the petitioner. They have put 'wild Jack planks' in the frame signifying thereby that the construction is by no means a permanent structure. In fact, the petitioner-tenant as well as RW. 3 have asked the landlord to remove the worn out door and make a fresh construction of the farms as well as the door leaf so that proper use can be made of the shop. The landlord gave an oral consent and only thereafter the disputed construction was made by the tenant. The learned trial Judge inferred from this evidence that there was estoppel against the landlord, but in my opinion, that finding was incorrect because there can be no estoppel against the landlord for a legal provision. Proviso(c) of Sec. 21(1) clearly indicates that the consent of the landlord was required to be taken in writing and therefore no amount of oral consent would have served the purpose. The plea could not be availed of simply on the ground that some oral consent was taken from the landlord. It is obviously correct that the wooden frame had to be provided for on the 'Jagali' to give protection to the shop as was nothing but an act of replacement of the old door with an additional wooden frame which can be removed at any time. The user of the 'Jagali' is also not substantially altered. It was already in the occupation of the petitioner-tenant and he was free to utilise it for keeping his stock for business. As the door had to be changed and the landlord consented for that what the tenant did was to put up a wooden frame on his portion of the 'Jagali' and he has affixed the top ends of the wooden poles with the roof rafters by nails. The two sides of the 'Jagali' has been covered by wooden planks. In this matter the entire construction is capable of being removed. The learned Counsel pointed out that such a construction is not uncommon in that part of the district where rains are excessive and sunshine is intolerable. In order to safeguard himself from the inclemency weather, if the tenant felt the necessity of covering a portion of the 'Jagali' and without altering its user in any manner set up a wooden frame he cannot be stated to have erected a permanent structure. If the respondent-landlord considered the other similar construction as temporary there was no reason for him to consider the disputed construction a permanent one.
(3.) The learned Counsel referred to Atul Chandra Vs. Sonatan Daw, AIR 1962, Cal. 78. With reference to a similar provision in the Transfer of Property Act Sec. 108(p) the learned Judge rightly observed that the word 'permanent' appears to have been used in contradistinction to what is temporary. It was further observed that if the work of construction or conversion is substantial or brings about a substantial change in the character of the premises and it is not merely a small physical change of temporary or unsubstantial nature, such work or construction fall within the mischief of the clause. The disputed 'Jagali' construction is really a physical change of a temporary or unsubstantial nature and hence the ratio of this case is rather favourable to the tenant. Then the learned Counsel referred to Ibrahim Vs. Khanmohammed, AIR 1965 Gujarat 152. In that case, with reference to a similar provision in the Saurashtra Rent Control Act, 1951 it was observed that the expression 'Permanent structure' has the true connotation irrespective of the nature of the structure and irrespective of the materials of which it is made and rather relates to the intention with which it has been made by the tenant. The learned Judge referred to the user of the construction upto a stage which could be considered permanent. Yet another decision has been referred to in that connection reported in Narayana Naik Vs. Lawrence Salvoders, 1968(1) Mys L.J. 501. In that case, with reference to Sec. 21(1) Proviso (c) the learned Judge held that the permanency of the structure will not depend upon the material used but upon the purpose for which it was erected. In that case the tenant constructed who walls which were originally 'thatti' walls and which had fallen down. He not only replaced the 'thatti' walls by walls constructed out of laterite stones but even slightly expanded the area of the construction. Despite that expansion it was held that the construction was not permanent within the meaning of the proviso (c). In fact, the expression "erected on the premises a permanent structure" should necessarily refer to some material alteration made in the building. In other words, there should be an addition or subtraction in the building which would lead to alteration in the character of enjoyment. Such an alteration in the building or in its user, will, in my opinion, be necessary to hold that the tenant has erected on the premises a permanent structure. As I have already considered above, in the instant case there had not been any substantial alteration in the character of enjoyment nor any substantial addition has been made in the building. The 'Jagali' portion was already there. Formerly it was open to rain and sunshine. The need for construction fell because the previous order became worn out and the landlord tacitly consented for the tenant to construct a new door. In order to give security to his shop, the door was to be replaced. The tenant has only constructed a wooden frame which could easily be removed and the 'Jagali' portion has been covered for a temporary need. It cannot be stated that the removal of the new construction will in any manner damage the building. As such, in any opinion, the learned Dist. Judge was incorrect when he inferred that the new construction was a permanent structure erected by the tenant. Thus, proviso (c) of Sec. 21(1) did not afford a ground to the landlord for eviction of the tenant.