GANGADHAR NARHAR DHADPHADE Vs. LAXMAN MORESHWAR HALBE

JUDGEMENT

(1.) The petitioner is the landlord of a house bearing No. 586 situated at Narayan Peth, Poona. In the said house the petitioner had given on rent a block of 4 rooms on the southern side of the Ground Floor to the respondent at the monthly rent of Rs. 17.00per month. The petitioner had filed a suit in the Small Causes Court at Poona being Civil Suit No. 511 of 1974, against the respondent for a decree of eviction on the ground that the tenant had erected a permanent structure in the premises let out to him and that by reason of the construction work done by the tenant damage had been caused to the building of the petitioner. It is the case of the petitioner that in the premises which were let out to the respondent there was a bath room in the kitchen admeasuring 6' x 4' in the southern side of the kitchen. The respondent pulled down the walls of the bath room and annexed the open space created there by to the kitchen. In the same room the respondent constructed a new bath room on the south-western side of the kitchen after pulling down a niche which was constructed in the wall (Phaddal). For the new bath room which was thus constructed, the respondent broke open the southern wall for the purpose of providing for drainage. The petitioner also pleaded that in the open space thus created, the respondent had constructed a kitchen platform. It was also alleged that iron bars were removed from the lower half portion of the window on the southern side. It was the case of the petitioner that because of the inadequate provision made by the respondent for drainage of water in the new bath room, the southern wall of the building had become wet and damp and it had become weak. It was on this basis that the petitioner claimed possession under the provisions of Sec. 13(1)(a) and 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The trial court gave findings in favour of the petitioner on both counts and passed a decree of eviction. The Appellate court however, has come to a conclusion that the respondent did not erect any permanent construction in the said premises and allowed the appeal. The present petition is filed challenging the judgment and order given by the lower appellate court.

(2.) It is an admitted position that the petitioner had given permission to the respondent for the construction of a kitchan platform. The petitioner however, contends that the other alterations which have been carried out without his permission and in spite of his objection. In this connection a Commissioner was appointed by the trial court for the purpose of inspecting the premises and making a report. A detailed report has been made by the Commissioner showing the nature of the alterations carried out and the condition of the southern wall. The appellate court appears to have considered the evidence lead by the parties including the Commissioner's report only from the point of view of section 13(l)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The learned Judge has come to the conclusion that the construction work carried out cannot be considered as erection of a permanent structure. As far as this aspect of the matter is concerned although the reasoning given by the learned Judge does not appear to be understandable in places, by and large he seems to have taken the view that since there was already an existing bath room, the alterations carried out in its position cannot be considered as erecting of a pemanent structure.

(3.) Learned Advocate for the respondent has drawn my attention to a decision of this court in the case of Alisaheb Abdul Latif Mulla Vs. Abdul Karim Abdul Rahman Mulla and others, AIR 1981 Bom 253. In that case the tenant had dug out the existing bath room and had rebuilt the bath room with some extensions. The tenant had also erected a 6 feet wall in order to ensure privacy and had divided the bath room space into three parts, one for bathing, one for washing clothes and one for cleaning the utensils. The learned Judge in that case held that the work had been done in order to enable the tenant to use the premises in a better way and there was no change in the purpose for which the construction had been carried out. The user of the area in question remained the same. Hence although the work was carried out with durable material, it should not be considered as erection of a permanent structure under section 13(1)(b) of the said Act. He also held that the 6 feet wall could be removed without inflicting any damage on the structure and hence also erection of such a wall could not be considered as erection of a permanent structure. If the same reasoning is applied to the present case, the tenant in the present case has also not changed the purpose for which the area in question has been utilised, though he has shifted the position of the bath room to some extent. This aspect of the Appeal Court's finding therefore need not be re-examined.