1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.37 OF 2009 WITH CROSS-OBJECTION STAMP NO.5648 OF 2010. Shrinarayan Ramlal Mishra Age: 52 Yrs., occu. Business R/o Bahadarpur, Tq. Pachora, District Jalgaon. - PETITIONER (Orig.Pltff.) VERSUS 1) Secretary, Khandesh Education Mandal, Amalner, Tq. Amalner, District Jalgaon. 2) President, Khandesh Education Mandal, Ratanlal Bhavarilal Pahade Age:68 Yrs., occu. Business, r/o Mumbai Galli, Amalner, Dist. Jalgaon. 3) Trustees Vinod Rajdhar Patil Age: 54 Yrs., occu. Business, R/o Sidhivinayak Colony, Amalner, Tq. Amalner, District Jalgaon. 4) Kundan Deshraj Agrawal Age: 68 Yrs., occu. Business, R/o Near Saraf Bazar, Amalner, Tq. Amalner, District Jalgaon. 5) Bhika Ramdas Badgujar, Age: 74 Yrs., occu. Business, 2 R/o New Plots, Amalner, Tq. Amalner, Dist.Jalgaon. 6) Dr.B.R.Baviskar, Age: 63 Yrs., occu. Business, r/o New Plots, Amalner, Tq. Amalner, Dist. Jalgaon. 7) Sahebrao Kalu Patil, Age: 74 Yrs., occu. Business, R/o Dhule Road, Amalner, Tq. Amalner, Dist. Jalgaon. 8) Bajrang Bansilal Agrawal Age: 54 Yrs., occu. Business, R/o New Plots, Amalner, Tq. Amalner, Dist. Jalgaon. 9) Kishor Virendralal Shah, Age: 54 Yrs., occu. Business, R/o Behind Civil Court, Amalner, Tq. Amalner, District Jalgaon. - RESPONDENTS (Orig.Defts.) ***** Mr.Girish Rane, Advocate for Petitioner; Mr.VJ Dixit, Sr.Counsel h/for Mr. A.N.Nagargoje, Advocate for Respondent No.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9th March, 2010. JUDGMENT: 1) Heard Mr.Rane for the Revision Petitioner and Mr.V.J.Dixit, Senior counsel for 3 the respondent. Rule made returnable forthwith by consent of parties. Original record made available to the parties. 2) The suit property is situate at Amalner, let out to the respondent, an educational institution, at the monthly rent of Rs.45/-. Regular Civil Suit No.197 of 1995 was initiated by the plaintiff for possession on the grounds - a) default; b) permanent construction without consent of the landlord; c) bonafide and reasonable need of the landlord; and d) change of user other than for which the building/premises was let out. 3) The suit was decreed on 8th March, 2006 on the ground of default only and negated the other grounds of the plaintiff/landlord. 4) This order in RCS No.197/1995 was challenged by the tenant before the learned District Judge in Civil Appeal No.11/2006. The 4 original plaintiff also filed Cross-objection. The first Appellate Court, by judgment and order dated 20th December, 2008 allowed the appeal of the tenant/defendants and also dismissed the Cross-objection of the plaintiff/landlord. The rejection of the decree for eviction is questioned by the landlord/plaintiff in this revision. 5) The plaintiff/landlord contended, that there was six months’ default in making remittance by the tenant. The suit was filed on 7.10.1995 while it was decided on 8.3.2006. The theory of bonafide requirement was to facilitate plaintiff’s residence at Amalner or education of his children as the plaintiff resides at Bahadarpur. 6) It was further contended that the nature of the suit premises is changed by the tenant as permanent construction is carried by the tenant by closing down an Ota on ground floor; removal 5 of kitchen platform and mori (an outlet) without consent of the landlord. It was canvassed, the premises was given for residence of the professors of the educational institution and since they have changed the residence of the professors in a nearby building, the tenant/ educational institution, has started Balak Mandir in the suit premises, which amounts to change of user of the premises. 7) There is no controversy about description of the suit premises; status of the parties and particularly the tenant/defendants to be educational institution. It’s trustees were arrayed individually in the proceedings. The tenancy month is as per the English calender, commences on first of the month and expires on the last day at Rs.45/- per month, excluding taxes. Notice dated 25.7.1995 was issued by the plaintiff, thereby terminating the tenancy since 31.8.1995 and called upon the defendants to handover possession of the suit premises. The 6 said notice was replied by the defendants/tenant. It is canvassed, the defendants never challenged the suit notice (Exhibit-44) to be illegal. The tenant was made known liable to make payment of the arrears. The suit premises are enjoyed by the defendants/educational institution since last 60 years, being a society, registered under the Bombay Public Trusts Act and established for educational purposes. 8) The plaintiff, in para 7 of the plaint, has pleaded, the defendants have not paid the rent for more than six months and committed defaults. It is obvious, the plaintiff did not specify the exact period of so-called defaults including the amount of arrears. Even in the evidence in affidavit in chief, the plaintiff failed to indicate exact month, for which the defendants have not paid the rent, even the plaintiff did not disclose the total amount of arrears against the tenant/defendants. On the other hand, the plaintiff accepted in the cross- 7 examination, he could not inform since when the rent is in due against the defendants. 9) The learned first Appellate Court found that in the absence of positive evidence about default on the part of the tenant in paying the rent, it cannot be said that the defendants/tenant have committed the defaults in paying the rent and became defaulters. The learned Appellate court found, the defendants have come with a specific case that they have regularly paid the rent for which money-orders, vide Exhibit-83 to 87 were produced including the receipts which disclose that on 8.7.1995, the landlord/plaintiff had received the rent of suit premises from the defendants. The plaintiff has never challenged and denied the money-orders receipts being produced. If the details in the money orders receipts are seen, the payment is as on 8.7.1995 while the suit was filed on 27.10.1995. The notice of demand was dated 25.7.1995. It hardly makes out a case of default 8 by the tenant. 10) Mr.Rane contended, the payment of rent by the tenant was irregular as is shown in the chart. However, there is consolidated payment of rent by the tenant, which covers even the earlier period. Thus, the finding of default being negatived by the Appellate court, no interference is warranted. 11) Permanent construction without consent of the landlord: In order to prove that the tenant has carried out permanent construction of removal of kitchen platform, Court Commissioner – Mr.Chetan Sonar was appointed, his report is at Exhibit-17. The evidence of the Court Commissioner/Architect showed that he was not equipped with the earlier plans of the building to show what was the nature of the property and how it has been changed. Any insignificant change in the premises, by the tenant to make it suitably occupied, will not 9 attract provisions of Section 108(o) of the Transfer of Property Act, as has been indicated by the Division Bench of this Court in the judgment in the matter of Bright Brothers (Pvt.) Ltd. and Company Vs. Venkatlal G. Pittie and Ors.reported in 1979 Mh.L.J. 895. The Apex Court in (1987) 3 SCC 558 observed - minor changes in the premises are permitted. The theory of destruction to the legitimate use of the premises requires to be proved, which the landlord has miserably failed to establish. 12) In the matter of Pitambardas Kalyanji Bakotiya Vs. Dattaji Krishnaji, reported in 1981 Mh.L.J. 290, this Court dealt with a case of construction of kitchen platform by the tenant and it was observed that it will not amount to a permanent construction within the meaning of Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act. It was observed, the question as to whether a particular construction is a permanent construction must be 10 decided with reference to the nature and situs of the structure, the mode of annexation, the intention of the tenant and all the surrounding circumstances. The rest of removability is not the conclusive test. If the structure can be removed without doing irreparable damage to the premises, then that would be certainly one of the circumstances to be considered for deciding the question of intention. If the object and purpose of annexation was only to better or more complete enjoyment of the demised premises, such a structure cannot be treated as a permanent structure. 13) As stated earlier, there is nothing that could be established by the plaintiff/landlord that there was permanent nature of construction carried by the tenant. 14) Bonafide and reasonable need of the landlord- The ground for bonafide requirement is 11 ordained in clause (g) of Section 13 of the Bombay Rent Act as under: “ that the premises are reasonably and bonafide required by the landlord for occupation by himself or by any person for whose benefit the premises are held.” The plaintiff/landlord claims that the suit premises were required for his residence and for education of his children. The plaintiff asserted to be residing at Bahadarpur being an agriculturist. He was specifically suggested, which he agreed that he was residing at Indore along with his family members. The plaintiff is carrying business activities by settling at Indore. It is curious, plaintiff did not state that the premises at Bahadarpur is not sufficient for his residence or his family. The plaintiff has indeed his agricultural fields and residential houses at Bahadarpur. Plaintiff did not specify, details of his children as to how, their stay at Amalner was feasible, convenient than Bahadarpur or Indore. The Appellate Court found, that there was no positive evidence on record to show the bonafide requirement of plaintiff as claimed. I see no good reason to interfere in the said finding. 12 15) CHANGE OF USER- It was contended that the premises was let out for the residence of professors of the educational trust/institution and now the Balak Mandir is started. Broad object and purpose of the trust needs to be considered. It is in furtherance to impart educational facilities, activities are accelerated. The premises, even if for certain period, was used by the professors, will seldom amount that it could not be used for the purposes of educational activities of the trust. The discussion of evidence, taking recourse to pleadings, does not change the colour and complexion. The theory that there was admission by one of the trustees, is indeed misplaced. Pleadings will have to be read as a whole and completely. In opening paragraph said defendant has contended that the premises was let out, used for educational purposes. Thus, this Written statement, by one of the trustees filed in 1998, could not be said to be contrary to the earlier pleadings. The learned 13 Appellate Court did not record specific finding about change of user. 16) Considering the factual matrix, I find initially the landlord did not prove that there was any agreement to let out the premises exclusively for residence of the professors and such user is changed. There is no written agreement between the parties. Even if premises is used for some time by the professors temporarily, that will not amount to accept that the premises cannot be used by the defendant/trust for running the Balak Mandir which is indeed part of its educational activities. 17) The scope of revision in a matter of such type is definitely very limited. Unless the Court finds exercise of jurisdiction, not vested in the first Appellate Court by law, has been exercised or that the exercise of the jurisdiction so vested was illegally done, Court 14 cannot interfere. The findings recorded by the first appellate court, being in tune with the evidence, do not display any illegality in exercise of its appellate powers, no interference warranted. The Civil Revision Application dismissed. Cross-Objection allowed as above. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra37.09 fldr.4.3.10 Authentic copy (BD VADNERE,PS)