PANDURANGA MALLYA Vs. ALPHONSO A RODRIGUES

JUDGEMENT

(1.) This is a revision under S.50 of the Karnataka Rent Control Act, 1961 and is directed against the decision of the District Judge, South Kanara, confirming in appeal the decision of the Munsiff, Karkala and thereby allowing the petition of the landlord-respondent for eviction of the tenant who is the present petitioner. HRC No.24 of 1973 was institituted by the landlord for eviction of the present petitioner on the ground that the tenant had without the landlord's consent in writing, erected on the premises a permanent structure, that the premises were required by the landlord for his reasonable and bona fide occupation and that the tenant after coming into operation of the Act acquired vacant possession of another suitable building, culminating in the pleas classified under proviso (c), (h) and (p) of S.21(1) of the Act. It was stated that the disputed premises consisted of two rooms one over the other while there was a jagali in front of the room on the ground floor. This jagali was in fact an open space meant for shop purposes and was enclosed by the tenant by a wooden structure of which the walls were filled up by wooden planks and the structure was fixed with the rafters of the roof. Besides it was stated 8 new rafters were placed in 1973 and the former roofing which was of tin sheets was replaced. According to the landlord, all these acts amounted to erection on the premises of a permanent structure and thereby gave a plea for eviction of the tenant. It was also contended in the petition that the landlord required the shop premises for his fourth son for whom he intended to open a book shop in these premises. That was a reasonable and bona fide need of the landlord and as such the tenant was to be evicted. The third plea, of course, related to the occupation by the tenant of the another suitable building which was vacated near about two years before the institution of the petition. All these pleas were denied on behalf of the tenant. It was stated that the aforementioned construction over the jagali was not a permanant structure. It was further contended that the shop premises were neither reasonably Or bona fide required by the landlord for his son nor could it be stated that comparative hardship was in favour of the landlord and not in favour of the tenant and as such according to the tenant the shop premises could not be got vacated on that ground. The tenant further denied with reference to the plea under Cl. (p) that he ever got vacant possession of any of the shop premises, so that he could start his business in those premises. In fact the tenant runs a stamp vendors shop in the disputed premises from the year 1948. It was also revealed from evidence that the Sub-Registrar's Office is situate opposite to the disputed premises and the stamp vending business done by the tenant has reference to the documents which are to be written and registered in the office of the Registrar.

(2.) The learned trial Munsiff allowed the petition and held that a part of the construction was a permanent structure. According to him the enclosure made over the jagali was not a permanent structure, but replacement of Zinc Sheets over the rafters was a permanent structure within the meaning of Clause(c) and as such the tenant was liable to b evicted on that ground. The learned Munsiff further held that the shop premises were reasonably and bona fide required by the landlord for the business of his son. He also decided in favour of the landlord with reference to the plea contained in Clause (p), holding that some building was vacated and the tenant could very well make use of that building for the shifting of his business. The tenant came in appeal before the learned District Judge and there too he failed. Tha learned District Judge went a little further on the point of permanent structure and held that the entire construction fell in that definition and the plea under Cl(c) applied and the tenant was liable to be evicted. As regards the plea relating to reasonable and bona fide requirement of the landlord he agreed with the learned Muasiff. However, in respect of the plea pertaining to clause (p) he considered that some other shop premises said to be in'possession of one Shamaraya Achari fell vacant two years ago and the tenant could very well shift his business in that shop. Accordingly he dismissed the appeal and maintained the order of eviction Of the tenant. The present revision petition is filed by the tenant being dissatisfied with the two decisions of the courts below.

(3.) The learned counsel for the petitioner-tenant contended in the foremost that the disputed construction that has been made over the Jagali, as well as the replacement of tin sheets by zinc sheets could not be classified as permanent structure within the meaning of Cl(c) of the proviso to S.21 (1) . It is no doubt correct that the Act itself does not provide for any definition of "Permanent structure" although the expression was the subject matter of several decisions in this Court. It has been held that for a permanent structure the raw material used while making that structure will not ba a factor for consideration. The material used may be soft or hard or may result in a construction which would last temporarily or permanently, but that alone will not be a factor to decide if the structure is permanent so as to afford a plea for eviction of the tenant. As held by me in Padmanabha Shettigara v. Srinivasa Acharya, (1976) 2 KarLJ. 237. the said expression necessarily refers to some material alteration made in the building. There has to be an addition or subtraction in the building leading to alteration in the character of enjoyment. Only such a construction in a case may be held to be a permanent structure so as to afford the ground for eviction of the tenant. It is then to ascertain in the instant case as to what type of construction has been made and as to whether there is any material alteration in the use and enjoyment of the building. Could the construction be considered to have led to any material addition or substraction in the building? As regards the enclosure of the jagali the learned Munsiff thought it not to be a permanent structure. Rather, it was considered by him that the replacement of tin sheets by zinc sheets would be a permanent structure. To that extent the finding of the learned Munsiff appears to be prima facie incorrect. Probably that finding was given because according to the landlord the Jagali was enclosed in 1973 and as in point of time it was a recent construction, it was held by the learned Munsiff not to be a permanent structure. As the evidence indicates the Jagali was enclosed, according to the tenant, in the yefer 1960 and according to the landlord, in the year 1973. However, both the parties have at one stage stated that the Zinc sheets were put in 1978. According to the tenant the tin sheets were there in 1960. The enclosure made over the jagali and the replacement of tin sheets did not alter in any manner the mode of enjoyment of the jagali. The learned counsel for the petitioner submitted that like the case Padmanabha Shettigara. supra (1) the present dispute also relates to the very same area and in order to give protection from rain and sun-shine a temporary enclosure has been put over the jagali. The replacement of tin sheets by zinc sheets can never be considered to be an alteration in the construction. In fact the tin sheets were replaced almost every year and that has been conceded to by the parties in their evidence. Therefore the finding of the learned District Judge that the construction was a permanent one does not appear to be correct. At any rate the learned Munsiff was right in holding that a part of the construction was not a permanent one. Therefore the plea unnder Cl(c) failed and the tenant could not be evicted on that ground.