sa192.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.192 OF 2010 SHANTARAM RAMCHANDRA BHUJABAL THROUGH GPA R S BHUJBAL ... APPELLANT. VERSUS 1. KISHOR DAMODHAR BALDAWA AND OTHERS. ... RESPONDENTS. ... Advocate for Appellant : Mr. Totala Rameshwar F. Advocate for R.Nos.1 to 3 : Mr. Bajaj Anil S. ... CORAM : S.S. SHINDE, J. Dated: December 09, 2011 PER COURT: 1. This second appeal takes exception to the judgment and order in RCA No.31/2007 dated July, 2009 passed by District Judge-4, Aurangabad thereby dismissing the appeal filed by the appellant and confirming the judgment and decree dt.21.12.2006 passed by the C.J.S.D., Aurangabad in RCS No.226/2004. 2. The learned Counsel appearing for the appellant sa192.10 2 submits that the perverse findings are recorded by both the Courts below. Though the suit property is reparable, the landlord was not taking any steps and, therefore, the plaintiff i.e. tenant was required to file suit. It is further submitted that the lower appellate Court had framed issue about tenability of the suit. In fact, such issue was not framed by the trial Court and it was not open for the lower appellate Court to frame and decide such issue. The learned Counsel for the appellant submits that the application was filed for amendment of plaint and also for leading additional evidence and in respect of those applications / prayers, issues No.1 and 2 were framed and decided at the time of final judgment, which is not permissible in law. The learned Counsel for the appellant invited my attention to various findings of the courts below and submitted that perverse findings have been recorded by the Courts below. The building is in reparable condition and, therefore, notice which was issued by the Corporation was also illegal. The learned Counsel invited my attention to the grounds taken in the second appeal. It is submitted that while framing the sa192.10 3 issues, the Courts below have failed to take into consideration the pleadings of the parties and have not framed proper issues. The lower appellate Court was not right in considering the merit of the matter while considering the application for amendment. It is further argued that the course adopted by the lower appellate Court to hear the application for leading additional evidence and amendment at the time of final hearing of the matter is not permissible in law. The learned Counsel further invited my attention to ground No.7 taken in the second appeal and submitted that while deciding the application for amendment and also for leading additional evidence, the Court has commented on the merits of the matter and such exercise is impermissible in law. The appellant was constrained to file the suit for mandatory injunction since the landlord did not discharge his obligation to carry out repairs, though the landlord has admitted in his cross- examination that from last twenty years, repairs were necessary to be carried out in respect of the suit premises. It is further argued that the lower appellate sa192.10 4 Court has not appreciated the evidence on record coupled with the pleadings of the parties. It is further argued that section 14 of the Maharashtra Rent Control Act, 1999 casts an obligation on the landlord to keep the tenanted premises in good repair. However, the landlord has failed in his duties and, therefore, the appellant was constrained to file suit. It is further submitted that the plaintiff - appellant is currently also carrying on business in the said premises, which require repairs. However, in order to evict the appellant illegally, the landlord is avoiding to carry out repairs and thereby allowing the tenanted premises to become more dilapidated. It is further submitted that the judgments of this Court and also the Supreme Court were cited before the Courts below. However, the lower appellate Court only mentioned the citations of those judgments, without discussing the ratio laid down therein. It is further submitted that both the Courts have failed to appreciate the fact that the defendant landlord, in order to dispossess the plaintiff from the suit premises, misguided to the Municipal Corporation of Aurangabad and without sa192.10 5 disclosing the facts that tenant is occupying some portion of the house property, obtained construction permission, which itself establishes the ill motive of the landlord in not carrying the repairs. The learned Counsel, in addition to the grounds taken in the second appeal, invited my attention to the findings recorded by the Courts below and according to him, the findings recorded by the Courts below are perverse and contrary to the evidence brought on record. He placed reliance on the reported judgment of this Court in case of Zilda Antonio Bras De Sa v. Narayan Kavlekar & Ors. [2009(5) Bom.C.R. 140] and submitted that additional evidence can be adduced under O. 41, R. 27 C.P.C. Relying on the said judgment, he submits that, in all fairness, the lower Appellate Court should have allowed the application of the plaintiff. He further invited my attention to the judgment of Dr. Daryaosingh Rao v. Dr. Pramilabai Bhandarkar [AIR 1959 MADHYA PRADESH 191] and more particularly, Head Note (A) thereof. He further placed reliance on the reported judgment of Kerala High Court in case of Renganatha Pai v. Director General of sa192.10 6 Police, Kerala State, Trivandrum and others [1995 A I H C 344] and in particular, Head Note (B) thereof. He also placed reliance on the judgment of this Court in case of Mrs. Piadad Fernander v. K.M. Ramesh and others [AIR 1970 BOMBAY 376]. Relying upon the said judgments, the learned Counsel for the appellant wold submit that it is the duty of the Court to satisfy itself under Section 13(1)(hhh) of the Bombay Rents, Hotel and Lodging House Rates Control Act and to see as to whether the building is really in dangerous condition. Therefore, according to the learned Counsel for the appellant, notice issued by the Corporation was unwarranted. Though, first and second floor of the said building are demolished, the tenanted premises are in a condition, which can be repaired and demolition of the same is not necessary. Therefore, according to him, the appeal deserves to be allowed. He further submitted that the course adopted by the trial Court not to record evidence in other suits since evidence was already recorded in RCS No.226/2004, is not permissible and each case depends on its own evidence and therefore, sa192.10 7 this is the substantial question of law to be considered. 3. On the other hand, the learned Counsel for the respondents submits that there are concurrent findings of facts recorded by the Courts below after appreciating the evidence on record. Therefore, this Court may not interfere in the concurrent findings. He invited my attention to para 29 of the judgment of the trial Court and para 19 of the judgment of the lower appellate Court and submitted that the suit premises and the building in which the suit premises are situated, is totally in dilapidated condition and first and second floors of the same have already been demolished and certain portion of ground floor has also been demolished. Notice was issued as back as in the year, 1987 and the said fact has been accepted by the appellant in his cross-examination. Therefore, the learned counsel for the respondents submits that no interference is warranted in the concurrent findings recorded by the Courts below. He invited my attention to para 34 of the trial Court's judgment and submitted that DW-2 Nandlal was sa192.10 8 examined as an expert and he has given his opinion that the building is in dilapidated condition and has to be pulled down. Therefore, according to him, the second appeal deserves to be dismissed. 4. I have given due consideration to the rival submissions of the parties. At the outset, it would be relevant to reproduce herein below the findings recorded by the trial Court in para 29 of the judgment, which reads thus: "29. ................... The plaintiff has no dispute about the photographs Exh.94 and 95 showing the condition of his shop in respect of its front portion ceiling etc. After going through Exh.94 and 95, it shows the grass to be grown up on the premises as well as the structures of the premises to be ruined, plaster of bricks to be fallen. As per cross examination, the plaintiff himself is receiving notices from the Municipal Corporation Aurangabad, since 1987 mentioning the condition of his shop to be in dilapidated condition. The defendant Nandkishor has admitted in his cross examination at Para No.13 about receipt of notices from the sa192.10 9 Corporation to demolish the building and they had removed the dilapidated portion of the building. Considering the above evidence, it is clear that since prior to filing of the suit by the plaintiff itself, the condition of the premises in which the plaintiff's shop exists is in dilapidated condition and therefore, the Corporation had also issued notices to the plaintiff and defendant-landlord to remove the same." The lower appellate Court, in para 19 of its judgment, has held thus: "19. ...... ...... ..... If admittedly upper two floors have been demolished and the adjacent ground floor of the building has also demolished, it proves dilapidated condition of the building while demolishing first floor and second floor, the plaintiff seems to have kept mum and after demolishing first and second floor and also part of ground floor, plaintiff has filed suits in the Court for restraining present defendants and Corporation from demolishing the structure, which is in his possession. If at all the building was not in dilapidated condition, plaintiff must have restrained by legal courses from demolishing second and first sa192.10 10 floor. Further, plaintiff was aware that by removing upper floors, the roof of his shop will be open to sky. He kept mum. Plaintiff has not replied to various notices issued by Corporation that the contents of notice are false and the building is not in a dilapidated condition. From the perusal of admitted photos on record, it is quite clear that the building has to be demolished and it is not in a reparable condition. From the photos, it shows that grass has been grown on the roof, which means the roof is with mud and is not Pakka i.e. made of cement concrete etc. Plaintiff is with the case that there were Shabadi Farshi on the roof and there was temporary tin roof. If, admittedly the building was two storied, can under these circumstances be said that the shop in possession of the plaintiff was with the cover of tin sheets since beginning? The answer certainly will be No. From the perusal of pleadings and evidence on record, the plaintiff has nowhere pleaded or deposed on which date or in which month or year the defendants have removed Shahbadi Farshi, which was on the roof of his shop. In absence of any evidence, of roof with Shahbadi Farshi and temporary tin sheets on the roof, defendants can not be directed that too with mandatory injunction to lay Shahbadi Farshi and tin sheets on the roof. As, I have already answered that building is not in a reparable stage, but has to sa192.10 11 be demolished, I answer this point in negative." 5. Bare perusal of the findings of the courts below would make it abundantly clear that both the courts have appreciated the evidence brought on record in its entirety. It is also abundantly clear that the Corporation had issued notices even to the appellant in the year, 1987 that the building and the suit premises are in dilapidated condition and further necessary steps are required to be taken. It is not in dispute that the first and second floors of the building have been completely demolished. It is disputed by the learned Counsel for the appellant that certain portion of the ground floor is demolished. However, from the findings recorded by the courts below, it appears that certain portion of the ground floor has also been demolished by the Corporation. Both the courts below have recorded concurrent findings that the building in which the suit premises are situated, is 100 years old. The provisions of section 264 of the Bombay Provincial Municipal Corporation Act, 1949, reads thus: sa192.10 12 "264(1). If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall, parapet, pavement, floor, steps, railings, door or window frames or shutter or roof, or other structure and anything affixed to or projecting from or resting or any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighborhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair such structure or things or do one or more of such things and to prevent all cause of danger therefrom (2) The Commissioner may also, if he thinks fit, require the said owner or occupier by the said notice, either forthwith or before proceeding to pull down, secure, remove or repair the said structure or thing, to set up a proper and sufficient hoard or fence for the protection of passers-by and other persons, with a convenient platform and hand-rail if there be room enough for the same and the Commissioner shall think the same desirable to serve as a foot way for passengers outside of such hoard or fence." 6. Bare perusal of section 264 of the said Act would make it abundantly clear that it is for the Commissioner of the Municipal Corporation to record satisfaction that the building is in dilapidated condition and is dangerous to any person occupying such building and other passer- sa192.10 13 by. It is not necessary to reproduce entire text of the said section since the section itself has been reproduced herein above. 7. Therefore, in the facts of this case, when first and second floors of the building have been already demolished and certain portion of the ground floor is also demolished and when both the courts below, after appreciating the evidence brought on record and even after scrutiny of the photographs, recorded the findings that the building was/is in dilapidated condition, I am of the opinion that no fault or perversity can be attributed to the concurrent findings recorded by the courts below. When there is specific provision in the B.P.M.C. Act, the authorities are under obligation to act as per the mandate of section 264 of the said Act. The authorities have to have overall concern about the danger to the human life. In the present case, it is not in dispute that since 1987 the Corporation has been issuing notices to all the concerned that the building is in dilapidated condition sa192.10 14 and is required to be demolished. Therefore, in the aforesaid background, to entertain the suit and accept the contention of the appellant that the suit premises are reparable and demolition is not necessary, is not permissible. 8. The applications filed by the appellant for taking additional evidence on record and for amendment of the plaint were filed when the appeal was pending before the lower appellate Court. The court has observed that the matter was heard and it was posted for judgment and in between, the applications were filed for amendment and also for taking additional evidence on record. The Court has considered the said applications and rejected the same. 9. The case in hand is required to be considered taking overall view of the matter that the building was / is in dilapidated condition, Corporation has been issuing notices to all the concerned since 1987 in that respect, the belated attempt of the appellant to file suits in the sa192.10 15 year, 2004 challenging the notices issued by the Corporation in 1987 cannot be countenanced. Therefore, viewed from any angle, in my considered view, none of the grounds taken in the second appeal raises substantial question of law for consideration of this Court. The concurrent findings recorded by the courts below after appreciation of the evidence brought on record, are in consonance with the evidence on record and are not perverse at all. There may be irregularities. However, the concurrent findings recorded by the courts below need no interference in this second appeal. 10. Therefore, the second appeal is devoid of any merits and stands dismissed summarily. [ S.S. SHINDE ] JUDGE. ... PLK/*