1 IN THE LHIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5274/2007 Arvind Vinayak Bavdekar (Since deceased through L.Rs.) PETITIONER VS. Ratilal Bhavani Shah RESPONDENT Mr.R.V.Pai with Mr.Ajit A.Kocharekar,Adv.for the petitioners Mr.Uday Warunjikar,Adv.for the respondent CORAM: MRS.MRIDULA BHATKAR,J. DATE : 27th April,2009 P.C. . Admit. 2] Heard finally by the consent of the parties. 3] This Petition is filed against the order passed by the Appellate Authority dated 16/12/2004 partly allowing the appeal of the petitioner/appellant seeking relief for the repairs. The respondent has filed a suit for eviction against the petitioner as he has started construction of pocket balcony in the tenanted premises. The said construction and other alterations and additions in the suit premises were stopped by the order of status quo passed by the Small Causes Court by its order dated 4/10/2001. Against the said order the appeal was preferred by the present petitioner which was partly allowed and 2 the order dated 4/10/2001 was modified and substituted saying that though the status quo was granted the appellant if required to carry out any work in the suit premises such as structural additions or alternations or even minor work of repairs including painting work , prior permission is necessary to obtain by the appellant and on refusal to obtain such permission from the landlord the appellant i.e.present petitioner is entitled to seek such permission from the Municipal Corporation of Greater Bombay. The learned counsel for the petitioner has submitted that the suit property was initially let out by the late father of the respondent and the said property is spreaded over the different floors of the building and the suit was filed in respect of the first floor. The learned counsel has further submitted that the petitioners run a nursing home in the suit premises and due to the order of the status quo and the restrictions put by the order passed by the appellate Court the petitioner could not carry out any repair including painting or minor repairs such as repairs in the sanitary blocks. He has submitted that these repairs are permissible u/s 16(a) (b) of the Maharashtra Rent Act and also u/s 342 of the Bombay Municipal Corporation Act. It is further submitted that there is no deviation from section 108 (o) of the Transfer of Property Act. 4] Per contra the learned counsel for the respondent has submitted that the petition is not maintainable under Article 226 of the Constitution of India and the petition suffers from latches as the 3 petitioner has challenged this order after 32 months from the date of the order passed by the Appellate Authority . He has further submitted that the agreement on which the petitioner is relying is described in para 18 of the petition. The petitioner seeks relief based on the terms and conditions as recited is not related to the suit property . He has further submitted that the affidavit in reply is filed in August,2007 and since then the petitioner has not denied the said contentions by taking efforts of filing rejoinder. 5] The suit property was let out by the late father of the respondent for the use of nursing home . It is agreed by the petitioner's counsel that the recitals of the agreement which are mentioned in this petition are not in respect of the suit property, however, he submits that the similar agreement was executed between the parties i.e.between the landlord and the petitioner in 1972 and is not in possession of the petitioner . The fact that as on today the relationship between the petitioner and the respondent exists as landlord and tenant and they are squarely covered u/s 16(a) (b) of the Maharashtra Rent Control Act and section 108 (o) of the Transfer of Property Act is not disputed. The learned Trial Judge has granted status quo for the purpose of any additions and alternations of permanent nature and so also the construction of pocket balcony to the suit premises. The Appellate Authority while modifying the said order has put rider that in case the appellant has to carry out any work 4 then he has to take permission of the landlord and the said order is under challenge. Who is the user of the tenanted premises is an important factor while deciding such application of tenantable repairs.The petitioner/tenant is admittedly running nursing home right from the inception of the tenancy ,so good hyginic conditions and cleanliness are to be maintained in the nursing home for the patients and the visitors . Painting and other incidental repairs are necessary to be carried out. The contentions of the learned counsel for the respondent that the petitioner did not take steps from 2004 to 2007 do not hold substance as to carry out repairs and the painting is not day today activity but it is the requirement of the time. Section 342 of the Bombay Municipal Corporation Act defines exhaustively what are the tenantable repairs . 6] The order is remodified and the relief in terms of prayer clause (d) subject to the constraints of Section 342 of the Bombay Municipal Corporation Act is granted. 7] The petition is disposed of accordingly with no order as to costs. 8] The petitioner is allowed to delete the words ''article 226'' forthwith. 9] The prayer of learned counsel for the respondent for stay is 5 rejected. (Mrs.Mridula Bhatkar,J)