CRA80OF10.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.80 OF 2010 Pyaresheb Kesharisingh Rana .. Applicant -versus Khairoonissa Mohammed Kapadi .. Respondent. Mr. N.V.Walawalkar, with Mr S.M. Sabrad, advocate for the Applicant. Mr G.S. Godbole withMr. Vishal Kanade i/b Mrs Jai V. Kanade, advocate for the Respondent. CORAM: R.C. CHAVAN, J. DATED: 4th August, 2010 P.C. 1. This revision is directed against decree of applicant’s ejectment passed by the Learned Judge, Court of Small Causes and maintained on appeal by the Appellate bench of the said Court. 2. After this revision application was heard and dismissed on 4.08.2010, for the reasons to be separately recorded, on l6.8.2010, applicant tendered a well drafted submission for re-consideration of rejection of the revision application – a thoroughly uncalled and deprecable exercise, since after hearing the parties revision application had been dismissed. Yet I would also deal with these submissions too in CRA80OF10.sxw 2 this judgment. Since the applicant has by his written submission made out a grievance that his counsel did not produce or rely on authorities which counsel carried with him, “For the reasons best known to him” I would briefly examine the points raised. 3. The respondent landlady had sought applicant’s ejectment on the grounds of indulging in acts contrary to section 108(o) of the Transfer of Property Act; carrying out permanent alterations without the landlord’s consent and landlord’s bonafide need of the premises. The learned trial Judge decreed the suit on all the three grounds. The appellate bench, however, reversed the trial Court’s decree on the ground of bonafide need, but maintained the decree on the other two grounds u/s 13(l)(a) and l3(l)(b) of the Rent Act. The landlord has not questioned denial of decree of ejectment on the ground of bonafide need. Thus, the only questions to be considered in this revision application are whether the courts below concurrently erred in holding the applicant guilty of carrying out additions and alterations of a permanent nature without landlord’s consent and whether the tenant was guilty of indulging in acts contrary to provisions of section 108(o) of the Transfer of Property Act. 4. There is no dispute that the applicant was inducted as a tenant sometime in l979. The landlady alleged that applicant had divided a toilet block by constructing a wall CRA80OF10.sxw 3 inside, laid pipeline by breaking outer wall and amalgamated a toilet block attached to a bed room in the bed room itself by removing the dividing wall, bathroom tiles and fittings. These are the two major alterations which were allegedly carried out without landlady’s permission and which were held to amount to acts of waste. 5. Fixing an air conditioner in a window by removing bars and other minor changes could certainly not have attracted applicant’s ejectment as has been pointed out by the applicant in his written submission, by relying on certain judgments. Therefore, it is not necessary to refer to those judgments. 6. According to the applicant’s written statement since the landlady had not at all carried out any repairs, he had merely carried out essential repairs like plastering walls, changing tiles and replacing a rusted pipeline which was essential for preserving the premises. He specifically denied having split a toilet block or removed another toilet block from the bed room. He claimed that the flat let out to him was identical to another flat on the same floor. He alleged that since he filed a suit to restrain the landlady from raising an additional floor on the building, the landlady sought his ejectment by filing the suit which gives rise to the present revision. 7. According to the applicant the Courts below erred in concluding that he had carried out structural changes by CRA80OF10.sxw 4 relying on evidence of plaintiff’s architect which was unreliable, particularly in the absence of sanctioned plans of the building, which alone could have shown that alleged alterations were made. Further, according to the applicant, the landlady herself had not entered the witness box and that her son & constituted attorney had no personal knowledge. The applicant also alleges that his evidence, as also that of his witness No.2, was not considered. Now all this would be in realm of appreciation of evidence of facts pleaded, and, in the face of concurrent findings by both the Courts, it would be impermissible in exercise of revisional jurisdiction to re-appreciate the evidence tendered. The scrutiny has to be restricted to finding out if the reasons given are perverse or that such conclusions could not at all be drawn. 8. The applicant seems to be aggrieved due to reliance on a plan Exh F produced by the Court Commissioner/plaintiff’s Architect which he had received from Municipal authorities on 20.3..l986. This is being objected to as violating observations of the Supreme Court in Arati Bhargav -vs- Kavikumar Bhargav (decd), AIR 1995 DEHLHI 250 and in Rajasthan & ors -vs- Khemraj & ors , AIR 2000 Supreme Court, 1759, as permission of the Court was not sought by making a written application supported by affidavit. Suffice it to observe that if after evidence is closed, some document is tendered, it could be taken into consideration only if its authenticity was CRA80OF10.sxw 5 duly attested by an affidavit. Here the witness had produced the certified copy of plan, received by him from Municipal authorities, in course of his examination and he was also subjected to cross examination thereon. Hence the judgments referred to are unhelpful for the applicant. 9. There can be no doubt that such plans do not furnish proof of facts which they refer to, as held in Mt Rupa -vs- Chaudhari Bhairon Prasad reported in AIR 1928 Nagpur 93. But the plan would certainly show as to what was approved by the Municipal authorities. Incidentally, the appellant himself admitted in his evidence that he too had obtained certified copy of plan from BMC but did not produce it – obviously because it must be the same as Exhibit F. The applicant has himself relied on judgment of Supreme Court in C. Shah -vs- Ramaswamy AIR 1938 Supreme Court 1413, to contend that landlady’s witnesses should be disbelieved for suppressing the best evidence – namely not producing the original plans. Same principle would apply to applicant when he does not produce plan obtained by him from B.M. C, whether the plans were amended would be irrelevant, unless the applicant shows that the premises in his possession conform to any of the sanctioned plans. 10. The evasive nature of the applicant is manifest from his reply to the question whether the suit premises were not in the same condition as in l979. He stated that the premises CRA80OF10.sxw 6 were much better than in l979. Though he denied having demolished toilet block in South West bed room, he did not dispute that it once existed and did not exist when he deposed, on 6.11.2006. Thus as far as this change is concerned which is a major, the applicant’s admission seals his fate. 11. The Learned Counsel for landlady relied on the Judgment of this Court in Ramrao Babaji Kothare and ors vs- Lila widow of Dr. Y Narayan Ajinkya and ors, reported in l998 Bom R.C. 299, where removal of wall without landlord’s consent was held to be not necessary for beneficial enjoyment and enough to warrant tenant’s ejectment. In Dr. C.C. Yi -vs- Smt Janakidevi Anantlal Gupta & ors, reported at 2001 (3) ALL M.R 324, even replacement of wooden doors was held to be change of permanent nature. It is not necessary to refer to judgment in Somnath Krishnaji Gangal -vs- Moreshwar Krishnaji Kale, 1995 (1) Mh. L. J. 675. I do not see as to how in the face of failed attempt of the applicant to deny that he had removed toilet block in bed room, he could be protected. 12. Reliance on judgments about authenticity of power of attorney or the ability of holder of such power to depose for landlady is misplaced. First it is not for the applicant to question authenticity of the power of attorney given by landlady to her own son. Secondly, the evidence tendered is about facts which need not have been in exclusive knowledge CRA80OF10.sxw 7 of landlady. In fact the applicant’s own admission that toilet block existed in the bed room and has now vanished was enought to order his rejectment. 13. The applicant has raised objections to Commissioner’s report and commissioner’s over zealous evidence. But that pales into insignificance in view of applicant’s admission referred to above. There is an allegation of seepage due to changes in the toilet blocks which, coupled with the admission of replacement of pipeline would indicate that conclusions of Courts below about acts of waste are perfectly probable and far from perverse. Reliance on judgment in Waman Limbaji Ashtekar Co. and ors -vs- Kantilal Manganlal Parekh & ors, l984 Mah L.J. 228 is thoroughly misplaced. 14. The revision application is dismissed deprecating the applicant’s attempt to have the matter reopened after order was pronounced. 15. At the request of the learned counsel for the applicant, the decree may not be put to execution for a period of eight weeks from the date judgment became available on the Internet on the applicant’s furnishing usual undertaking within a period of two weeks from today. ( R.C. CHAVAN, J. )