DIGAMBER RAMCHANDRA GADEKAR Vs. VIJAY RAOJI DOSHI

JUDGEMENT

(1.) IN this writ petition the petitioner, who is the original plaintiff in Suit No. 3416 of 1972 had filed a suit against the respondent-tenant for eviction on the ground of bonafide requirement of the petitioner as also on the ground that the respondent had erected a permanent structure within the meaning of Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This petition pertains to the same suit house which was the subject-matter of Writ Petition No. 1981 of 1981. The petitioner in the present petition was also the petitioner in that petition. By reason of the two suits filed, which are the subject-matter of these two petitions, the petitioner had asked for possession of ground floor premises in the suit building of which he is the owner. The premises in Writ Petition No. 1981 of 1981 are the western block in the suit house while the premises in the present petition constitute the eastern block in the said house. The eastern block which is the subject-matter in the present petition was originally requisitioned by the State Government and allotted to the father of the petitioner who was working as an Assistant Director in the Social Welfare Department. Ultimately the petitioner became the tenant in respect of the eastern block. In 1968 the petitioner purchased the entire building. Thereafter the petitioner retained possession of one room in the eastern block as he was serving outside Pune. He gave the rest of the premises in the eastern block to respondent No. 1 on a monthly tenancy on payment of rent of Rs. 80 per month. The petitioner has filed the present suit on the ground that he requires these premises reasonably and bonafide because he wants the premises for occupation of his wife and children. It is the case of the petitioner that he wants his children to take education at Pune. The petitioner has also submitted that he is required to go to Pune because he is an examiner in post-graduate examinations conducted by the Pune University. He is also a visiting editor of Vishva-Kosh at Wai. He is, therefore, required to go and stay in Pune; and one room which he has in his possession is not adequate for his needs. This ground of bonafide requirement of the petitioner has been negatived by the lower appellate Court and this finding has not been challenged in the present petition.

(2.) THE lower appellate Court has also negatived the petitioner's plea that the tenant has effected a permanent structure in the said premises. It is the case of the petitioner that the tenant has erected in the kitchen a cement concrete platform 82" in length, 27" in depth and 32" in height. He has also constructed a kitchen sink adjoining the platform. Below the platform he has constructed two cupboards. The tenant has also constructed a wall-cupboard opposite the bath-room and he has also constructed a wall-cupboard in the bed-room. On the basis of evidence which was led, the lower appellate Court has held that in order to construct the wall-cupboards the tenant had not evacuated the wall. The Court has come to the conclusion that there were already shelves filed in the wall when tenancy was created in favour of the 1st respondent. The 1st respondent has merely covered the open space by putting a wooden framework and constructing doors of cupboards. The lower appellate Court has also held that there is no satisfactory evidence to prove that the tenant has constructed a platform 32" in height as alleged and that the tenant and merely covered the space below the platform with a wooden frame and doors. The finding has been challenged in the present petition.

(3.) ON the question of construction of a kitchen platform our High Court has held in the case of Pitambardas Kalyanji Bakotiya v. Dattaji Krishanji (supra) that construction of a kitchen platform will not amount to permanent construction within the meaning of section 13(1)(b). The Court has observed that if the object and purpose of annexation was only for better or more complete enjoyment of the demised premises, such a structure should not be treated as a permanent structure. The Court observed that the construction of the kitchen platform would not bring about a substantial change in the character of the demised premises. The kitchen platform was an essential requirement of modern living and construction of such a platform in the kitchen would not attract the provisions of Section 13(1)(b). In the case of Dharsibhai Panachand Shah v. Smt. Samaratbai Lilachand Shah, (supra) on the facts of that case the learned Single Judge of the Court held that construction of a kitchen platform and water storage tank did not amount to erecting a permanent structure. The Court said that the question whether the structure is a permanent structure or not is a mixed question of fact and law and the Court will have to consider the extent of construction to decide whether it is such as to partake of the character of a permanent structure. On the facts of that case construction of a kitchen in bricks and cement 4' - 6" in length, 1'-6-1/2" width and 2'-7" in height was not considered as construction of a permanent structure.