1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION CIVIL CIVIL CIVIL REVISION APPLICATION NO.415 OF 2007 REVISION APPLICATION NO.415 OF 2007 REVISION APPLICATION NO.415 OF 2007 inin in APPEAL APPEAL APPEAL NO.468 OF 2004 NO.468 OF 2004 NO.468 OF 2004 inin in R.A.E.SUIT R.A.E.SUIT R.A.E.SUIT No.521/1055 OF 1996 No.521/1055 OF 1996 No.521/1055 OF 1996 Bhimsi Bhimsi Bhimsi Haji Nisar Haji Nisar Haji Nisar ...... Applicant Applicant Applicant vs vs vs Raichand Raichand Raichand Khimji Nisar.. Khimji Nisar.. Khimji Nisar.. Respondent Respondent Respondent Mr.H.S.Shreepad Mr.H.S.Shreepad Mr.H.S.Shreepad Murthy for Applicant Murthy for Applicant Murthy for Applicant None None None for Respondent for Respondent for Respondent CORAM CORAM CORAM : : : S.A.BOBDE, J S.A.BOBDE, J S.A.BOBDE, J DATED DATED DATED : : : 17th August, 2007 17th August, 2007 17th August, 2007 P.C. P.C. P.C. 1.1.1. This Civil Revision Application is preferred This Civil Revision Application is preferred This Civil Revision Application is preferred against against against the order of the lower appellate Court the order of the lower appellate Court the order of the lower appellate Court reversing reversing reversing the judgment and decree of the trial the judgment and decree of the trial the judgment and decree of the trial Court. Court. Court. The trial Court had decreed the applicant’s The trial Court had decreed the applicant’s The trial Court had decreed the applicant’s suit suit suit on the ground that the tenant has carried out on the ground that the tenant has carried out on the ground that the tenant has carried out material material material alterations in the premises. The alterations in the premises. The alterations in the premises. The appellate appellate appellate Court has reversed that decree. Court has reversed that decree. Court has reversed that decree. 2.2.2. Mr.Murthy, learned counsel for the applicant Mr.Murthy, learned counsel for the applicant Mr.Murthy, learned counsel for the applicant vehemently vehemently vehemently argued that the judgment of the argued that the judgment of the argued that the judgment of the appellate appellate appellate Court is vitiated by material Court is vitiated by material Court is vitiated by material irregularity irregularity irregularity that it has not considered all the that it has not considered all the that it has not considered all the evidence evidence evidence which was considered by the trial Court which was considered by the trial Court which was considered by the trial Court for for for arriving at the the conclusion that the tenant arriving at the the conclusion that the tenant arriving at the the conclusion that the tenant had had had carried out material alterations in the carried out material alterations in the carried out material alterations in the premises. premises. premises. It is not possible to accept the general It is not possible to accept the general It is not possible to accept the general propositions propositions propositions advanced by the learned counsel for advanced by the learned counsel for advanced by the learned counsel for the the the applicant that unless order of the appellate applicant that unless order of the appellate applicant that unless order of the appellate Court Court Court shows shows shows a consideration of exactly all evidence a consideration of exactly all evidence a consideration of exactly all evidence 2 considered considered considered by the trial Court, the appellate Court by the trial Court, the appellate Court by the trial Court, the appellate Court should should should be taken to have acted with material be taken to have acted with material be taken to have acted with material irregularity. irregularity. irregularity. It depends on the circumstances of It depends on the circumstances of It depends on the circumstances of the the the case. It is possible that the appellate Court case. It is possible that the appellate Court case. It is possible that the appellate Court considers considers considers a particular piece of evidence as being a particular piece of evidence as being a particular piece of evidence as being of of of greater significance and decides on that basis. greater significance and decides on that basis. greater significance and decides on that basis. Such Such Such a finding cannot be said to be vitiated a finding cannot be said to be vitiated a finding cannot be said to be vitiated because, because, because, some other piece of evidence on which the some other piece of evidence on which the some other piece of evidence on which the aggrieved aggrieved aggrieved party relies is not considered. party relies is not considered. party relies is not considered. 3.3.3. In the present case, the applicant had tendered In the present case, the applicant had tendered In the present case, the applicant had tendered evidence evidence evidence to point out the material alterations and to point out the material alterations and to point out the material alterations and additions additions additions in the form of Architect’s and in the form of Architect’s and in the form of Architect’s and Commissioner’s Commissioner’s Commissioner’s report. The trial Court considered report. The trial Court considered report. The trial Court considered all all all the reports and came to the conclusion that the reports and came to the conclusion that the reports and came to the conclusion that there there there were material alterations. The appellate were material alterations. The appellate were material alterations. The appellate Court Court Court gave greater importance to the Architect’s gave greater importance to the Architect’s gave greater importance to the Architect’s report report report on the question of material alterations and on the question of material alterations and on the question of material alterations and has has has recorded a finding that there is gross recorded a finding that there is gross recorded a finding that there is gross impropriety impropriety impropriety in the preposition of the Architect’s in the preposition of the Architect’s in the preposition of the Architect’s report. report. report. Vide para 25 to 26 apparently the Vide para 25 to 26 apparently the Vide para 25 to 26 apparently the Architects Architects Architects kept on changing their versions on kept on changing their versions on kept on changing their versions on material material material point namely that whether the Architect point namely that whether the Architect point namely that whether the Architect who who who has prepared the report himself inspected the has prepared the report himself inspected the has prepared the report himself inspected the premises. premises. premises. The appellate Court’s finding that the The appellate Court’s finding that the The appellate Court’s finding that the Architect Architect Architect who prepared the plan had clearly who prepared the plan had clearly who prepared the plan had clearly admitted admitted admitted that he had not gone to the suit premises that he had not gone to the suit premises that he had not gone to the suit premises for for for inspection. Moreover, the dates on the inspection. Moreover, the dates on the inspection. Moreover, the dates on the Architect’s Architect’s Architect’s report appeared to have been changed report appeared to have been changed report appeared to have been changed and and and that the Architect has acted under the name of that the Architect has acted under the name of that the Architect has acted under the name of another another another Architect on a very material aspect i.e. Architect on a very material aspect i.e. Architect on a very material aspect i.e. whether whether whether the original design of the building is the original design of the building is the original design of the building is 3 altered. altered. altered. The appellate Court has found that The appellate Court has found that The appellate Court has found that Exhibit Exhibit Exhibit B contains the following words : B contains the following words : B contains the following words : " Thus the portion Marble cills are not Thus the portion Marble cills are not Thus the portion Marble cills are not properly properly properly sealed sealed sealed and will cause is missing in and will cause is missing in and will cause is missing in Exh.3 Exh.3 Exh.3 " " " Whereas Whereas Whereas the the the said words are missing in Exhibit 3 said words are missing in Exhibit 3 said words are missing in Exhibit 3 i.e. i.e. i.e. the 2nd Architect’s report. The appellate the 2nd Architect’s report. The appellate the 2nd Architect’s report. The appellate Court Court Court has therefore, completely discarded the two has therefore, completely discarded the two has therefore, completely discarded the two reports reports reports of the Architects and has come to the of the Architects and has come to the of the Architects and has come to the conclusion conclusion conclusion that there are no material alterations that there are no material alterations that there are no material alterations or or or additions. Merely because the Commissioner’s additions. Merely because the Commissioner’s additions. Merely because the Commissioner’s Report Report Report is not specifically considered, it does not is not specifically considered, it does not is not specifically considered, it does not vitiate vitiate vitiate the order. the order. the order. 4.4.4. In the circumstances of the case, I find no In the circumstances of the case, I find no In the circumstances of the case, I find no error error error with the jurisdiction or material with the jurisdiction or material with the jurisdiction or material irregularity irregularity irregularity which warrants interference by this which warrants interference by this which warrants interference by this Court. Court. Court. Petition is rejected. Petition is rejected. Petition is rejected. (S.A.Bobde, (S.A.Bobde, (S.A.Bobde, J) J) J)