PRAHLHAD SHANTWAN RANDIVE Vs. MUNNABHAI GIRDHARILAL DIXIT

JUDGEMENT

(1.) Heard the learned senior counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of respondent Nos. 1A to 1C. The petitioner is the original tenant and the respondent is the original landlord. For the sake of convenience, parties are referred to as the 'landlord' and the 'tenant'. The landlord filed the civil suit for eviction of the tenant on the ground of default, permanent construction and nuisance. The tenant had filed the written-statement and contended that western side of the wall of the suit premises was in completely dilapidated condition and as such the Municipal Corporation issued notice on 26-1-1976 to the landlord asking him to repair the said wall. It was alleged that since repairs were not carried out by the landlord, the Corporation removed the western side of the wall in July, 1976. The tenant, therefore, was constrained to carry out repairs and spent an amount of Rs. 30,000/- towards re-construction. He also filed a suit in the Court of Small Causes, seeking recovery of expenses, incurred by him for the re-construction of the said structure. Said suit, however, was dismissed for want of prosecution on 31-12-1994.

(2.) The suit filed by the landlord was decreed by the trial Court. Against the said judgment and decree, an appeal was preferred before the District Court and the said appeal was also dismissed. The learned senior counsel appearing on behalf of the petitioners submitted both the Courts below have held that the construction was made by the tenant not in the demised premises but in respect of the premises which are in the occupation of the landlord. It was, therefore, submitted that the said construction would not fall within the purview of section 13(1)(b) of the Bombay Rent Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act"). It is submitted that both the Courts below have held that construction of 'Mori' by the tenant could not be said to be a permanent construction. It was submitted that construction which was carried out by the tenant for the purpose of keeping the premises in habitable condition would not amount to a permanent construction within the meaning of section 13(1)(b) of the Act. It was submitted that both the Courts below have not taken into consideration this aspect. Reliance was placed on the judgment of the Single Judge of Gujarat High Court in the case of Deviprasad Vrajlal Kachhiya vs. Chhotalal Nawttamdas Panchal and anr., 1993 2 GLR 1703. The learned senior counsel for the petitioners has invited my attention to paragraph 3 and paragraph 21 of the said judgment, in support of his submission. He also invited my attention to the evidence which was given by the plaintiff and by the defendants.

(3.) On the other hand, the learned counsel appearing on behalf of the landlord submits that the word 'premises' was defined under the Act and it was submitted that the said definition was an inclusive definition and it includes the premises which were other than demised premises. He also submitted that the defendant has examined two witnesses and both the witnesses have, admitted that the construction was made by the tenant/defendant was a permanent construction. It is submitted that the contractor who made such a construction was examined by the defendants as their witnesses, also clearly admitted that the construction was made in cement, sand and bricks. It is submitted that as a result of said construction, use by the landlord of his premises was permanently altered and reduced. It was further submitted that the Corporation had granted permission to the tenant only in respect of 'Mori' and the roof. It is submitted that the tenant had erected the western side wall and also southern side wall from the ground floor to the first floor. It is submitted that the ratio of the judgment on which reliance is placed by the learned senior counsel for the petitioner, would not apply to the facts of present case.