JAYANTILAL SAKALCHAND SHAH Vs. BALASAHEB SHANKAR NAIK

JUDGEMENT

(1.) This is Defendant's Petition under Art. 227 of the Constitution challenging the concurrent decrees passed by the two Courts below decreeing the Plaintiff's suit for possession and dismissing the Defendant's appeal therefrom inter alia on the ground that the Defendant is a defaulter, that the case is governed by Sec. 12(3) (a) of the Rent Act and also on the ground that the Defendant has carried out permanent construction on the suit premises.

(2.) Hearing Mr. Agarwal, learned Counsel for the Petitioner-Defendant, Mr. Naik, learned Counsel for the Respondent and going through the impugned order I find no merit in this Petition. On the question of default, the arrears were for a period of more than one month; the rent was admittedly payable by the month; demand notice under section 12(2) of the Rent Act was not even replied to by the Defendant; the Defendant also did not make any payment within one month nor was any dispute raised within the said period on the question of standard rent. All the ingredients of Sec. 12 (3 (a) were thus fulfilled in the instant case. The Courts below were justified in decreeing the Plaintiff's suit on this ground. Indeed, decree for possession is mandatory under Sec. 12(3) (a) of the Rent Act. Defences raised to the aforesaid claim under Sec. 12(3) (a) have been in detail considered by the two Courts below and the same have been found to be without substance.

(3.) Even on the second ground, viz., permanent construction, the Courts below were fully justified in holding in favour of the Plaintiff. The construction carried out by the Defendant irresistibly shows that the same was of a permanent nature. Indeed, what was aloft has been changed, altered and made into a Pucca room. The sloping roof has been completely replaced by altogether roof of a different size and shape converting the original sloping roof into a rectangular roof. Instead of repairing the dilapidated one wall, the Defendant has increased the height of all the four walls by as much as four to five feet. Still further, as many as four new windows and doors have been fixed. The width of the newly constructed walls is nine feet.%Evidence of the Architect examined on behalf of the Plaintiff shows that the house of which the suit premises form part is a, very old one, and in view of the large amount of new and permanent construction carried out by the Defendant, the old house with wooden poles would not be able to bear the load and burden thereof and the life of the old house would further stand reduced and that the house would also become dangerous. The photographs of the present construction are produced on record. We may ignore the new flooring and construction of a Mori as not being permanent construction within the meaning of Sec. 13(1)(b) of the Rent Act, but the other constructions are obviously permanent. The Defendant has acted in a very high-handed manner. He has materially altered the original premises into an altogether new premises. The Courts below were, therefore, justified in decreeing the plaintiff's claim for possession under Sec. 13(1) (b) of the Rent Act. Concurrent findings recorded in this behalf are not liable to be interfered with by this Court in its Writ Jurisdiction.