RAMHARI GANPAT HONRAO Vs. RAMKRISHNA MALL

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 5.10.1984 passed by the Joint Judge, Pune in Civil Appeal No.901/1982. That appeal was filed by the respondent, challenging the judgment and decree dated 9.8.1982 passed by the Addl. Judge, Small Causes Court, Pune in Civil Suit No.262/1977. That civil suit was filed by the petitioner, claiming therein that the petitioner is the owner of house No.160/2, situated at Akurdi, Pimpri-Chinchwad Municipal Corporation and that the respondent is a tenant of room No.4 in the suit premises, which is a chawl. The landlord sought decree of eviction against the tenant on several grounds. However, the trial Court on the basis of the evidence on the record, recorded finding in favour of the landlord, only on one ground, namely that the tenant has raised permanent construction on the suit premises. In the result, the suit for decree of eviction against the tenant was decreed in favour of the landlord and the tenant was directed to vacate the suit premises. In the appeal, the appellate Court reversed the finding recorded by the trial Court on the ground of erection of a permanent structure and held that the landlord has failed to establish that the tenant has erected a permanent structure on the suit premises. In the result, the appeal was allowed and the suit filed by the landlord for decree of eviction against the tenant was dismissed. It is this order of the appellate Court, which is challenged in the present petition by the landlord.

(2.) SHRI Mandlik, the learned Counsel appearing for the petitioner urged before me that in the plaint itself a specific case is made out by the landlord that the tenant has constructed a loft in the suit premises, which is a structure of permanent nature. In the written statement, the tenant had merely denied the allegations. In his deposition, it was the case of the tenant that the loft was in existence even before the present landlord purchased the suit premises. In the submission of Shri Mandlik, this evidence led by the tenant should not have been taken into consideration because there was no pleading to that effect in his written statement. I have gone through the entire records of the case and the orders passed by the Courts below. I find that the tenant has not stated in his written statement that the loft was in existence before the suit premises were purchased by the present landlord. However, it is to be seen here that the tenant has examined himself and he specifically stated in his deposition that the loft was in existence for a long time before he took the premises on the rent. It is pertinent to note that at that time the landlord had not taken any objection to this evidence led by the tenant. The tenant also examined another witness in this regard, who has supported the case of the tenant. Therefore, when the landlord has not raised any objection when this evidence was recorded, as there was no specific pleading in the written statement to that effect, now for the first time at this stage, the landlord cannot say that this part of the evidence of the tenant should be ignored or should not be taken into consideration.

(3.) IN the result, therefore, the petition fails and is dismissed. Rule is discharged with no order as to costs.