CRA/991/1994 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 991 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= KANNIYALAL UTTAMCHAND SHROFF - Applicant Versus MANSUKHBHAI MADHAVJI RAVAL - Opponent ================================================= Appearance : MR KS NANAVATI for Applicant : MR RAJESH D. DAVE for Opponent : 1, NOTICE SERVED BY DS for Opponent : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/07/2008 CAV JUDGMENT 1. The petitioner has preferred the present Revision Application assailing the judgment & order dated 19th September 1983 passed by learned Small Causes Court, Ahmedabad in HRP Suit No. 1387 of 1980 and also assailed the judgment & order passed by learned Appellate Bench, Small Causes Court, Ahmedabad in Civil Appeal No. 314 of 1993, dismissing the appeal of the applicant-landlord against the order dated CRA/991/1994 2/9 JUDGMENT 19.09.1983 dismissing the suit for eviction of opponent- tenant on the ground of raising permanent construction in the suit premises without the consent of the landlord. 2. Facts in brief deserve to be set out as under. The tenanted premises consisting of ground floor and 3 rooms, was taken on rent from 20/12/1969 and rent note was executed on 6/1/1970. The open chowk (square ) and bathroom were used in common with other occupants of the bungalow. The rent of Rs.225/- fixed, was inclusive of municipal tax. The expenses of society charges, electricity charges and educational cess were to be borne by the tenant. The tenant was issued notice by the landlord calling upon him to vacate the premises as he had carried out permanent construction without any permission from the landlord. The tenant was also informed that the rent was due from 1/11/1979 and the details of construction put up by the tenant were also narrated. The landlord filed HRP Suit No. 1387 of 1980 for recovering possession on the ground of tenant being in arrears of rent and on account of tenant’s action of making permanent structure on the tenanted premises. It deserves to be noted at this stage that during the course of hearing the issue with regard to arrears of rent was not pressed and only issue with regard to putting up permanent structure without landlord’s written permission was therefore called upon to be decided. The suit was dismissed by the trial Court vide its order in judgment dated 19th September 1983. 3. Being aggrieved and dissatisfied with the judgment & order of the trial Court, the landlord preferred the appeal being Civil Appeal No. 314 of 1983 assailing the judgment & order of the trial Court dated 19th September 1983. The Appellate CRA/991/1994 3/9 JUDGMENT Court also dismissed the said appeal with cost vide its order dated 8/2/1994. The petitioner – original landlord, being aggrieved and dissatisfied with the said order has preferred the present Revision Application. 4. Shri Chudgar, learned counsel for Shri KS Nanavati, learned counsel for the petitioner has submitted that the petitioner – landlord is entitled to a decree of eviction when provision of Section 13 (1) (b) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 {“Bombay Rent Act” in brief) is satisfied. Section 13 (1) (b) of the Bombay Rent Act reads as under:- “ 13 (1) Notwithstanding anything contained in this Act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied. (a) ..................... (b) that, save as otherwise provided in section 23A, the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure; or © .................... “ 5. It is submitted by Shri Chudgar that as per Section 13 (1) (b), the tenant would escape from the said provision only, if landlord has given a consent in writing for erecting on the premises any permanent structure. The said consent has to be express and in writing. The knowledge/ acquiescence / indirect permission would not be sufficient. In the instant case, the tenant has failed to prove that he had obtained any written permission or consent before constructing permanent CRA/991/1994 4/9 JUDGMENT structure in the tenanted premises. In support of his submissions has cited judgments reported in (1) [1990] 1 SCC 169 – Dulichand Vs. Jagmender Dass; (ii) 1999 (1) All India Rent Control Journal (RCJ) 184 in case of Hari Thakurdas Laungani Vs Hemu Fatehchand (iii) 2001 (O) GLHEL 205 212 – Ismailbhai Haji Ibrahimbhai Malek Vs. Gordhanbhai Hathibhai Patel. 6. Shri Chudgar with regard to construction of permanent nature has submitted that, tenant has constructed ceiling made of RCC slab on the open chowk and thereby converted the said chowk, which was open to sky, into a room / lounge. The light and air, which were otherwise available on account of open chowk, were now stopped. This construction amounts to construction of permanent nature because it is not a mere roof by putting cement sheets or tin sheets or corrugated sheets, but is a pucca permanent RCC slab by using steel / iron bars, cement and concrete. The chowk admeasuring 8x6 ft = 48 sq. ft., originally open to sky had been converted in to a close room / lounge of 48 sq. ft. This amounts to changing the nature / form of the structure i.e. the open chowk is converted into a room / lounge and hence, cannot be said to be mere alteration, which can be removed without causing any damage to the property. In support of his submission, he has cited judgments; (i) In case of Patel Ishwarbai Lallubhai and another vs. Patel Parshottam Ranchhodbhai and others, reported in 1967 (8) GLR 665, (ii) Mayankkumar Dhansukhlal Vs. C. Rajnikant & Company reported in 2005 (O) GLHEL 215 695; (iii) Jekisondas Maganlal Vs. Abdul Rehman Haji Ahmedbhai and others, reported in AIR 1975 Guj. 205; (iv) Patel Chinubhai Dhanjibhai Vs. Patil Vallabhbhai Ambalal reported in 1975 (16) GLR 481; (v) AIR 1967 SC 643 and (vi) CRA/991/1994 5/9 JUDGMENT 1986 (2) RCJ (Bom) 617. 7. Shri Chudgar also responded to the submission of the counsel for the respondent tenant based upon the citations cited at Bar by the counsel of the opponent in (i) 1998 (2) GLH 736 and (ii) 2006 (3) GLR 2230 and contended that it is not an absolute proposition of law that in each and every case the landlord has to adduce expert evidence of a Civil Engineer / Structural Engineer to prove that the structure, which is of permanent nature, cannot be removed without causing damage to the property. The discussion regarding expert evidence in the said judgment is not a ratio of the judgment and is not amounting to an absolute proposition of law. He has submitted that only in doubtful cases such expert evidence would be required and in cases where the facts speak for themselves no such expert evidence would be required. In this regard, he has cited the judgment in respect of Mayankkumar Dhansukhlal Vs. C. Rajnikant & Company, reported in 2005 (O) GLHEL 215 695 etc. 8. Shri Rajesh Dave, learned counsel for the opponent-tenant submits that the so called permanent structure can not be said to be a permanent structure as alleged by the landlord for seeking eviction decree. Assuming for the sake of arguments to examine the controversy that the structure was permanent structure then also it was made only after obtaining due permission of the landlord. He heavily relied upon the letter dated 12/1/1980 (page-20) and submitted that the structure was erected only after the permission of the landlord. He relies upon the decision of this Court in case reported in 2006 (3) GLR 2230 wherein this Court has held that such a construction is not a permanent construction. He CRA/991/1994 6/9 JUDGMENT also relies upon the decision of this Court reported in 2001 (3) GLH, pg.3; 2007 (3) GLH pg. 643; and 1987 (1) GLH 438 and submitted that the construction as suggested to be a permanent construction can not be said to altering the nature of the suit premises and therefore the concurrent findings of the trial Court and that of the Appellate Court need not be disturbed by this Court in this revision application. 9. Heard learned counsels of the parties and perused record & proceedings. The Trial Court has recorded that issues with regard to arrears of rent etc., were not pressed by the plaintiff and only the issue with regard to putting up permanent construction and altering the premises was required to be adjudicated. The plaintiff served notice upon the defendant on 1.02.1980 exhibit no.27 mentioning in para 4 thereof that defendant had informed hum vide his letter dated 26.12.1979 that he had put up construction on the suit premises and as the said construction was made without permission of the plaintiff he was entitled to recover the possession from the defendant. The defendant replied to the notice vide letter dated 14.03.1980 exhibit 24 contending that such repair and construction was required to be carried out at the instance of the plaintiff, and when the plaintiff and his wife visited the premises they were informed that tenantable repairs was required to be carried out and at that time plaintiff had in presence of one Manilal Kalidas Shah and one Vasantbhai authorized the defendant to carry out the all the repairs. The Defendant informed the plaintiff with regard to such construction in his letter dated 26.12.1979 that was also replied by the plaintiff vide his letter-dated 12.01.1980 wherein he did not make any protest and impliedly agreed to make payment for the same as he did not object to the CRA/991/1994 7/9 JUDGMENT construction nor did he raise any disputes in this regard. The defendant further contended that thereafter the plaintiff personally came on to the suit premises on 24.01.1980 as elaborated by him. The Trial Court has recorded at many places that plaintiff admitted that the defendant had written letter dated 26.12.1979. He further admitted that after receipt of the said letter he came to Ahmedabad and visited the suit premises and on finding that the construction was not done properly he served a notice to the defendant. He also admitted the Rent Note and alterations made therein. To a question as to whether the construction in question has in fact strengthened the suit premises he said he couldn’t say. He also admitted that he instructed the defendant to put up compound wall. 10. The Trial Court has recorded defendant's evidence to the effect that the subject constructions were carried out only at the behest of the plaintiff and for maintaining the tenanted premises strong and habitable. The chowk was roofed as otherwise the rain water had adverse impact upon the bathrooms doors and it created problems for ladies in using the bathrooms. The defendant had examined Manilal Kalidas and one Suresh Maganlal Mehta, defendant’s family doctor who supported his version. 11. The Trial Court has noted that the plaintiff had not examined one Ramanlal who happened to be the neighbour and relative of the plaintiff . The plaintiff also did examine bai Meena who happened to be his daughter in law and who was as per the version of the defendant frequented the premises when the constriction was going on. CRA/991/1994 8/9 JUDGMENT 12. The Trial Court has recorded that construction had in fact the effect of enhancing the value of the suit premises. No foundation was required to be laid. No damage has been caused to the said premises. The construction put up was capable of being easily removed. 13. The reliance placed upon the decision, by the learned Counsel for the petitioner, in case of Dulichand (Supra) and on Ismailbhai Haji Malek 2002(2) GCD 918, in case of Hari Thakurdas Laungani reported in ALL India Rent Control Journal II 1999 (1),for emphasizing his submission in light of statutory provision warranting written consent before doing any act the same cannot be justified on any grounds like acquiescence or knowledge, and reliance placed upon the judgment in case of Jayantilal Sakalchand Vs. Balasaheb 1986 (2) All India Rent Control Journal at page 617, Patel Ishwarbhai Lallubhai vs. Patel Parsotambhai reported in 1967 (8) GLR 665, in case of Mayankkumar Dhansukhlal Vs. C. Rajnikant & Co. reported in 2005(O) GLHEL 215695 and in case of Jekisondas Maganlal reported in AIR 1975 Gujarat 205, in case of Patel Chunibhai Dhanjibhai reported in 1975 GLR 481 and in case of Manmohandas reported in AIR 1867 SC 643 in support of his another submission that the subject construction could be said to be permanent construction and as it was put up without written consent of the landlord the same was sufficient for passing eviction decree, would be of no avail to the plaintiff petitioner in view of the clear findings recorded by the Trial Court in respect of the very nature of the constructions put up by the defendant and the admissions of the landlord plaintiff. 14. The appellate Court has confirmed the findings of the trial CRA/991/1994 9/9 JUDGMENT court with regard to the nature of the constructions distinguishing the cases cited at the bar which were in respect of constructions which were not capable of removal without damaging the very premises. 15. The addition and construction sought to be characterized as permanent construction and alteration so as to attract the provisions of Section 13(1) (b) are in fact not such construction which would justify the invoking of the eviction provisions of Bombay Rent Act. 16. This Court is aware that while exercising such revision jurisdiction High Court need to be more cautious and careful before reversing the concurrent findings recorded by the court below. The finding of facts recorded by the Court below need no interference even if there was a different view plausible. 17. In view of the aforesaid this Court is of the view that no interference is called for in the Judgments and orders passed by the Trial Court as well as the Appellate Court impugned in this petition. 18. The revision application deserves to be dismissed and according dismissed. Rule discharged. No cost. [ S.R. BRAHMBHATT, J ] /vgn