HEMCHAND M SINGHANIA Vs. SHAKUNTALA S TIWARI

JUDGEMENT

(1.) Ice-cream may be a delight for taste, but it has landed its manufacturer in hot waters and all the said delight has been practically evaporated when engulfed in blunt legal contest. This, though is yet another litigation between the landlord and tenant, it has assumed unusual dimensions not only on the basis of the allegations of the landlord about permanent alterations having been made by the tenant to such a large extent that according to him, it is misnomer to call those as mere alterations, but more on account of a challenge canvassed at the very foundation of the maintainability of the suit on the ground that it is barred by limitation.

(2.) The petitioner is the owner and landlord of the premises located on Municipal Street No. 16 in Fanaswadi area of this metropolis. The respondent was inducted as monthly tenant in the said premises on the monthly rental of Rs. 105.60, for the purpose of conducting ice-cream business which was being carried by her husband who is holder of power of attorney on her behalf. The suit premises consisted of entire structure on the ground floor with a loft covering the entire area with corrugated iron sheets. This letting was under an agreement dated 29-12-1975, which was to become effective from January 1, 1976. It is alleged by the landlord that in breach of the agreement and terms of tenancy as also in violation of the prohibition as prescribed under section 13(1) of the Bombay Rents, Hotel & Lodging House Rates (Control) Act (hereinafter referred to as the Rent Act), the respondent-defendant indulged in several acts of commission under which not only there has been permanent alterations of major nature but the entire structure was completely changed so much so that even the height of the structure was increased and thus, the loft lost its initial character and became almost as a first floor which was creation of the respondent-tenant. In addition, several other breaches have been committees vis-a-vis terms of tenancy. It was also alleged that the respondent indulged in the acts of waste and damage to the property, that further she changed the user of the premises when some of the employees started residing there. On the basis of these and other allied allegations the petitioner served the respondent with a notice to quit terminating the tenancy dated September 20, 1978, which was replied to by the respondent-defendant denying the said allegations, which necessiated a rejoinder being sent by the petitioner on October 16, 1978. Since the demand therein for possession of the premises was not complied with the petitioner-landlord was obliged to file ejectment suit in the Small Causes Court at Bombay being R.A.E. Suit No. 1326/4557 of 1979.

(3.) All the allegations came to be denied by the defendant in every respect. In effect, it was denied that she had made any alterations at all and if some alterations have been done those were certainly not permanent in nature but were essential for the beneficial user of the suit premises. It was also contended as an alternative that all those alterations, if at all were made, were so made with the consent and permission of the landlord and for which purpose reliance was placed on certain circumstances, including the letter dated December 29, 1978 given by the landlord to the tenant which was sought to be construed as containing the said permission. The allegations of acts of waste and damage to the property and change of user were also stoutly denied.