HARSHADA B MEHTA Vs. MAHENDRA J KARA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 26th September, 1995, passed by the Appellate Bench of the Small Causes Court at Bombay in appeal No.112 of 1992. That appeal was filed by the petitioner challenging the judgment and decree dated 28th July, 1993, passed by Small Causes Court at Bombay in R.A.E. Suit No.1129/5712 of 1976. That civil Suit was filed by the respondents claiming therein that Bhimji Kara Bungalow, Chandavarkar Lane, Borivli (West), Bombay-400092 is owned by the Respondent and that the ground floor of this bungalow is let out to the petitioner for running a hospital therein. In the suit, the respondents/landlords sought a decree of eviction against the petitioner on the ground that the tenant has erected a permanent structure on the suit premises. It was the contention of the plaintiffs/respondents that the petitioner/tenant has constructed a loft in the suit premises. The Trial Court, on the basis of the evidence on record, recorded a finding in favour of the landlord and decreed the suit in favour of the landlord and directed the tenant to vacate the suit premises. In appeal filed by the tenant, the Appellate Court reappreciated the evidence on record and confirmed the findings recorded by the Trial Court. In the result, the appeal was dismissed.

(2.) THEREFORE , in the present petition, what is challenged is these concurrent findings recorded by both the Courts below.

(3.) ON the other hands, the learned Counsel appearing for the respondent Shri. Thorat urged before me that from the evidence on record, it is clearly established that it was not an intention of the petitioner to construct merely a false ceiling. In the submissions of the learned Counsel, expert's evidence on record clearly shows that what was intended to be constructed was a loft. The learned counsel further urged that as both the Courts below after considering the facts that are required to be considered according to the law laid down by the Supreme Court for recording a finding as to whether the structure amounts to permanent structure or not, have recorded the findings of fact that the construction raised by the petitioner amounts to a permanent structure within the meaning of the Bombay Rent Act. The learned counsel relied upon the judgment of this court in the case of M/s. Abdul Hamid and Sons vs The Life Insurance Corporation of India and others, reported in 1980 (2) All India Rent Control Journal 227 and urged that this court considering the similar facts has held that the construction raised amounts to permanent structure within the meaning of Bombay Rent Act. The learned counsel further urged that explanation referred to above will not help the petitioner because there is a clear finding recorded by the two courts below that what is erected by the petitioner is not a false ceiling.