1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.358 OF 2010 WITH CIVIL APPLICATION NO.207 OF 2010 IN CIVIL REVISION APPLICATION NO.358 OF 2010 Smt. Kanchanben Maheshbhai Shah .... Applicant Vs. Smt. Arvinda Hasmukhray Shukla 1. Deven Hasmukhray Shukla & Ors. .... Respondents Shri J.J. Thakkar for the Applicant. S/Shri Rohit Kapadia, Senior Advocate with Vijay Thorat, Senior Advocate & Narendra Devashrayee, Advocate i/b P.R. Sachdev for the Respondents. CORAM: R.C. CHAVAN, J. DATED: JUNE 15, 2010 P.C: 1. This revision application is directed against the Judgment of the learned Appellate Bench of the Court of Small Causes at Mumbai whereby the Appellate Bench dismissed the applicant/defendant s appeal as well as the respondents cross-objections and confirmed the decree granted by the learned trial Judge 2 ordering the applicant s ejectment under Section 13(1)(a) and (b) of the Bombay Rent Act. 2. There is no dispute that the applicant is a tenant in respect of the premises which were the subject-matter of the suit. According to the respondents/plaintiffs, the applicant had put up or constructed a loft in the central room resting on iron angles embedded on side walls. The plaintiffs felt that this construction of a permanent nature caused damage to the suit property by throwing additional load on the walls which they were not capable of bearing. Such a pleading can be found in para 2, sub-para (1) the plaint. The applicant responded to this pleading by admitting in para 3 of the written statement that it was correct that the applicant had put a loft made of wooden sheets, fitted on iron angles, but claimed that it can be easily removed without damaging the structure of the premises. According to the applicant, the side walls were very strong and could bear the load of the iron angles. On these pleadings, the learned trial Judge of the Court of Small Causes framed necessary issues and the parties went to trial on those issues. Objections to 3 the tenability of the suit of under Order 7, Rule 11 of the Civil Procedure Code had not been raised before the trial Judge. After the learned trial Judge held that the plaintiffs had proved that the applicant had carried out additions and alterations of a permanent nature in the suit premises, without obtaining written permission or consent of the landlord and thereby committed the act of waste or damage to the suit property in breach of the provisions of Clause (o) of Section 108 of the Transfer of Property Act. On the ground of nuisance and annoyance to the landlord, the learned trial Judge held against the landlord and in favour of the applicant. 3. On appeal by the applicant and after hearing the cross-objection of the respondents, the Appellate Bench of the Court of Small Causes affirmed the findings rendered by the learned trial Judge after considering the evidence tendered. 4. I have heard the learned counsel for the applicant as well as learned counsel for the respondents. It is not necessary to refer to the judgments which have been cited before the Courts below because the question here is 4 not one which can be settled by any judicial precedent. It is purely a question of fact as to whether the structure which the defendant had admittedly put up was one of a permanent nature and caused damage to the plaintiffs property. This is a pure question of fact on which both the Courts below have rendered a concurrent finding that the loft is a structure of permanent nature and causes damage to the plaintiffs walls. The ambivalence of the learned Judges of the Appellate Bench at one place where they have also used the word loft/cabin cannot be interpreted to mean that the structure ceased to be of a permanent nature if it was to be described as cabin. The learned trial Judge, as well as the Appellate Bench have, upon considering the evidence of an Architect which was tendered before the Court, held that the offending structure was resting on the central wall with the help of iron angles or girders and, in fact, the learned counsel for the respondents pointed out that the applicant in her cross-examination has admitted that the structure rested on two iron girders. In view of this, it cannot be said that the Courts below erred in concluding that the structure was of a permanent nature since it rested on girders which were embedded on 5 walls and therefore obviously was not removable without affecting the walls. The learned Judges have also held that the structure caused damage to the tenement as they threw additional burden on the walls. The contention of the learned counsel for the applicant that actual damage has not been pleaded or proved has to be rejected because it would be inappropriate to wait till the wall develops a crack or causes further damage to the building. It cannot be a matter of speculation that when a loft or a cabin which runs along the entire length of the wall and rests on girders embedded in the walls, it would throw additional burden on the walls and would have the potential of damaging the walls. This potential need not be translated into actual damage which may be visible to eyes for the purpose of seeking a decree of ejectment. The learned Judges of the Courts below have also seen the photographs of the property which had been duly proved and admitted by the defendant in her cross- examination. That by itself show that the loft or cabin actually rests on girders which are embedded in the walls. Admission by the Architect that the landlords had in fact constructed an additional room on the building is irrelevant since that is a risk which the 6 landlords took and which the tenant himself cannot take without the permission of the landlords since it is the landlords structure which the tenant has damaged. Therefore, it cannot be said that the findings of the Courts below call for an interference in exercise of revisional jurisdiction by this Court. The learned counsel for the applicant submitted that the learned Appellate Bench of the Court of Small Causes as well as the trial Judge erred in failing to note that the suit did not disclose any cause of action and was, therefore, liable to be rejected under Order 7, Rule 11 of Civil Procedure Code. He lamented that the Appellate Bench was in error in concluding that objection to the tenability of the suit on the ground that it did not disclose cause of action could not be entertained at the appellate stage. He submitted that the applicant had raised the necessary objection at the earliest stage and, in any case, the Courts themselves were duty bound to check up whether the plaint disclosed a cause of action and to reject the plaint if it did not. Therefore, according to him, on this ground alone, the decrees of the Courts below are liable to be reversed. The contention of the learned counsel for the applicant has to be rejected since on 7 the face of it the argument is not correct. The learned Appellate Bench of the Small Causes Court has not refused to look into the question of absence of cause of action merely because it was raised at the appellate stage. It has only added the fact that the objection was raised at the appellate stage while concluding the discussion on the point. The learned Judges have devoted as many as six paragraphs running into nine pages for discussion of the applicant's objection on the ground that the plaint did not disclose a cause of action. It is not necessary to repeat those reasons again. The learned Judges have rightly found that when the plaint did disclose a cause of action and was, therefore, not liable to be rejected under Order 7, Rule 11 of the Civil Procedure Code. To say the least, the objection was frivolous. The revision application, therefore, is rejected. 5. The learned counsel for the applicant submits that the applicant may be given sufficient time so as to take her lis to the Supreme Court. Though this may not be construed as grant of leave to approach the Supreme Court, the decree may not be put to execution for a period of sixty days after the Supreme 8 Court reopens after the summer vacation. The restraint imposed on the applicant restricting the usage of the premises to the applicant and her family members would continue till then. 6. In view of rejection of the revision application, no order is required to be passed on Civil Application NO.207 of 2010 and same is accordingly disposed of. (R.C. CHAVAN, J.)