VALAND RAMANLAL VADILAL Vs. SHAH NAVINCHANDRA CHIMANLAL

JUDGEMENT

(1.) THE appellant defendant, who was inducted as tenant under Exh.27 at the monthly rate of Rs.15/ - somewhere in the year 1967, lowered down the level of the shop, as alleged by the plaintiff, by 3.1/2 feet. Being aggrieved by this act of the defendant - tenant, the plaintiff filed the suit for declaration that the action of the defendant was absolutely illegal and the respondent be restrained from making any further construction in the property. The defendant appeared before the court and submitted that in view of big holes in the wall between the suit premises and the adjoining neighbour's wall, rats were coming from his shop to the shop of the defendant, therefore, he was required to lower down the level of his own shop. He, however, submits that the suit was not maintainable and that such injunction could not be granted, because, the subject matter would fall within the jurisdiction of Rent Controlling Authority.

(2.) AFTER recording the evidence and hearing the parties, the trial court dismissed the suit holding that lowering down of the floor by 1.75 feet (as reported by the Court Commissioner) would not amount to material alteration and this act on the part of the defendant would give no cause of action to the plaintiff to file a suit, because, neither there was any wastage nor any alienation.

(3.) THE first appellate court, placing reliance upon the judgment of the Supreme Court in the matter of Manmohandas Shah Vs. Vishnudas, reported in A.I.R. 1967 643, held that the action of the defendant was illegal, it was causing damage to the property. The first appellate court, accordingly, restrained the defendant from raising any further construction in the suit premises.