BABUBHAI BHURABHAI Vs. PARMANAND NATHALAL VAGHELA

JUDGEMENT

(1.) The present revision application under Sec. 29(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (the Act for short) is filed by the petitioner original defendant who is since deceased and is represented by his heirs. He has brought in challenge the decree for possession as confirmed by the appellate Court at Amreli agreeing with the conclusion reached by the trial Court in favour of the plaintiff-respondents.

(2.) I will refer to the original petitioner-defendant as defendant and the respondents plaintiffs for the sake of convenience in the later part of this judgment. The defendant is occupying a shop on the ground-floor of the building to the plaintiffs situated in Vania Vora Sheri at Amreli. The defendant occupied the said shop on the ground floor at a monthly rent of Rs. 8.00. He was a sitting tenant even before the plaintiffs purchased this property from executors and heirs of deceased Ramji Hansraj. The defendant was carrying on his tailoring business in the said shop. The main entrance door of the shop was facing east and was having height of 5 and was 2-9 broad. Over that door was a ventilator. It is the case of the plaintiffs that without asking for their permission the defendant changed this door and the ventilator in the eastern wall into one larger door having 7 height and 5 width. It is the case of the plaintiffs that this was done about 2 months before filing of the suit. It is pertinent to note that the suit was filed in the trial Court on 1-3-1974. Thus according to the plaintiffs the aforesaid larger door was put up in the eastern wall of the demised shop by the defendant somewhere by the end of December 1973 or beginning of January 1974. It is this act of the defendant which resulted into filing of the aforesaid suit by the plaintiffs against the defendant for eviction. The said suit was filed mainly on two grounds firstly under Sec. 13 of the Act which provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has committed any act contrary to the provisions of clause (o) of Sec. 108 of the Transfer of Property Act 1882 The suit was also based on additional ground under Sec. 13(1)(b) which provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant save as otherwise provided in Sec. 23 has without the landlords consent in writing erected on the premises any permanent structure. There is an explanation added by the legislature to Sec. 13( b) which reads as under:

(3.) Mr. S. M. Shah for the petitioner vehemently submitted that the appellate Court has not property come to the gripe of the problem. That Sec. 108(o) of the Transfer of Property Set read with Sec. 13(1)(a) of the Rent Act can he pressed in service only if the alleged act of tenant is squarely covered b the contingencies contemplated by Sec. 108(o) of the Transfer of Property Act. Placing reliance on the said provision he submitted that as enjoined by the said provision the lessee may use the property and its products (if any) as a person of ordinary producer 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 injuries thereto. He submitted that if at all the case would fall under the last part of the aforesaid provision and that is precisely the case with which the plaintiff came to Court. Therefore on evidence the Court must reach a clear finding of fact as to whether by increasing the size of the door in the eastern wall of the suit shop the petitioner had committed an act which is destructive or permanently injurious to the demised premises. In the substance of such a clear finding no decree can be passed against the defendant under that provision. Placing reliance on the explanation to Sec. 13(1)(b) of the Rent Act it was. submitted that if the door as put up by the tenant in the demises premises by virtue of the aforesaid explanation he cannot be deemed to have put up a permanent structure if such a door can be removed without serious damage to the premises. He submitted that even the trial Court had held in view of the said explanation that the case was not covered b) Sec. 13(1)(b) of the Rent Act and that part of the finding of the trial Court was not challenged before the appellate Court by the respondents-plaintiffs and that the only case placed before the appellate Court for getting decree of eviction confirmed against the petitioner was under Sec. 13(1)(a) of the Rent Act. It was therefore contended that it was incumbent on the appellate Court as a final Court of facts to come to a clear finding effect that the impugned door said to have been put up in the eastern wall of the suit shop by the petitioner was destructive or permanently injurious to the suit shop. As such a finding in not arrived at the suit deserves to he dismissed.