IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 412 of 1987 with CIVIL APPLICATION No 6056 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- TRUSTEES OF SONI PANCH, SONI ZUMAKLAL PREMCHAND Versus HIERS OF RAYCHAND H DARJI -------------------------------------------------------------- Appearance: DELETED for Petitioner No. 1-3,5 MR JT TRIVEDI for Petitioner No. 4,6-8 MR BJ TRIVEDI for Petitioner No. 4,6 MS DEVYANI N DAVE for Petitioner No. 4,6 MR SN SHELAT for Respondent No. 1 .......... for Respondent No. 1/1 MR VIREN G DAVE for Respondent No. 1/1/A-1/2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KUNDAN SINGH Date of decision: 03/10/2003 ORAL JUDGEMENT 1. This Civil Revision Application has been filed by the petitioners for quashing and setting aside the judgment and order dated 3-5-1986 passed by the Extra Assistant Judge, Panchamahalas at Godhara, whereby Regular Civil Appeal No. 80 of 1983 has been dismissed and the judgment and decree dated 30-4-1983 passed by the Civil Judge (SD), Dahod in Regular Civil Suit No. 187 of 1979 has been confirmed. 2. The plaintiffs filed Regular Civil Suit No. 187 of 1979 against the defendant - tenant for possession of the suit property on the grounds; (i) the tenant has made permanent structure, (ii) the petitioners require the suit property bonafide and reasonably for the use of the trust, (iii) for arrears of rent for more than six months as the tenant was not ready and willing to pay the rent of the suit premises and (iv) for rent and mesne profits of Rs.346/- with interest at the rate of 12% p.a. The original tenant died during pendency of the suit. 3. The present respondents - defendants being heirs and legal representative of the original deceased tenant-defendant contested the suit by way of filing the written statement before the trial Court. The respondents denied all the assertions made in the plaint that Soni Panch Trust requires the suit property for its reasonable and bonafide use. It is also stated in the written statement that the defendants would suffer greater hardship if the suit is allowed. It is also denied that the defendants had made permanent structure in the suit premises. The notice issued by the plaintiffs is not legal and valid one. Contractual rent is not standard rent and the standard rent may be fixed as contractual rent is too excessive and standard rent should be Rs.5/- p.m. The suit is not maintainable at law and hence the same deserves to be dismissed with costs. 4. The trial court framed the following issues : i. Whether the plaintiffs prove that the defendants without permission of the plaintiffs erected a wall with cement, sand and limes and thereby constructed permanent structure ? ii. Whether the suit property is bonafide and reasonably required for the purpose of trust ? iii. Whether the defendants are in arrears of rent for more than six months and they are ready and willing to pay the rent ? iv. What is standard rent of the suit property ? v. Whether the notice given by the plaintiffs to the defendants is legal one? vi. Whether the trust is registered one ? vii. Which party would suffer comparative hardship ? viii. Whether the plaintiffs are entitled to recover the amount of rent and interest ? ix. What amount should be awarded to the plaintiffs for rent and notices expenses? x. Whether the plaintiffs are entitled to the decree of possession ? 5. The trial Court answered issues no.1, 2, 3 and 10 in negative where as issue no. 4 was decided that the standard rent of the suit property is Rs.12/-p.m. The issue no. 5 and 6 were decided in affirmative. The issue no. 7 was decided that if the decree is passed, greater hardship would be caused to the respondents. Whereas issues no. 8 and 9 did not arise to decide. 6. After considering the documentary and oral evidence on record, pleadings of the parties and the arguments of the learned advocates for the parties, the trial Court dismissed the suit holding that the plaintiffs are not entitled for recovery of possession of the suit premises. Being aggrieved and dissatisfied with the judgment and decree of the trial Court, the plaintiffs preferred Regular Civil Appeal No. 80 of 1983 before the District Court, Panchamahals at Godhara. After considering the material on record and hearing the learned advocates for the parties, the lower appellate dismissed the appeal vide judgment and order dated 3-5-1986. Therefore, the present petitioners have filed this civil revision application u/s 29 (2) of the Bombay Rent Act before this Court. 7. It appears from the judgment and order of the trial Court, the petitioners have not pressed the ground of non-payment of arrears of rent of the suit premises. In the present revision application, learned counsel for the petitioners has argued mainly on three counts; (i) reasonable and bonafide requirement of the suit property by the plaintiffs, (ii) permanent erection of wall and (iii) the petitioners have filed Civil Application No. 6057 of 2003 in this revision application for producing and taking into consideration additional evidence on record and produced additional evidence to show that the respondents have acquired another suitable property. 8. The trust of the plaintiffs has big piece of land having several shops and one of them is the suit property. It is stated that the trust wants to construct a community hall "Jaman wadi" and the plaintiffs require the suit premises for passage and the plans were prepared by the Diploma Holder Architect who works in Municipality and his evidence was recorded at exh. 66 by the trial Court. It is stated by the said witness at exh. 66 that he has prepared the plan. The lower appellate court has considered this aspect regarding reasonable and bona fide requirement of the suit premises on the basis of the evidence on record. Narandas Motilal Soni exh.43 and Sumanchandra Chhaganlal Soni exh. 60 in their evidence have stated that the expenses of the construction would be about Rs.1,50,000/-. While the trust has fund of Rs.25,000/- only. Both said witnesses have admitted that they have not produced any documentary evidence to show that they have fund of Rs.25,000/- and the trust has to collect Rs.1,25,000/- for construction of "Jaman wadi". Upon finding that the trust has no sufficient fund to construct "Jamanwadi" the lower appellate court came to the conclusion that the plaintiffs have no reasonable and bonafide requirement of the suit property. Moreover, the lower appellate court also found that the in case if the defendants are evicted from the suit property, the defendants-respondents would suffer greater hardship. The lower appellate court has considered the relevant provisions of law. The lower appellate court also considered that requirement of the suit property by the trust may not be reasonable and bonafide but the requirement is condition precedent before proceedings to evict the tenant. While with regard to greater hardship the appellate court has considered that the defendants would suffer greater hardship if they are evicted from the suit premises. The defendant, his wife and sons are residing in the suit premises. Though the defendant has stated in his evidence that one of his sons was residing at the relevant point of time of deposition, with his sister-in-law. The lower appellate court has considered this fact and found that there were other at least 4 to 5 members in the family of the defendant. The defendant was carrying on his business of tailoring in the suit premises and the defendant was also residing in the suit premises with his family members. Locality of the suit property is market area. Considering the income of the defendants, the lower appellate found that even if the defendants are thrown outside the suit premises, the defendant and his family members would not get the premises for residence as well as commercial purposes at so cheap rent. The defendant belongs to Vahora community and Vahora community would let out premises to him. But the Lower appellate court found that no person has been examined from Vahora community to show that the shops are ready to let out to the defendant within the paying capacity of the defendant. The other shops are not available at such low rent of Rs.12/- and rent would not be less than Rs.100/- p.m. plus some premium and municipal tax etc. if the defendant takes another premises for his use. The trust is of Soni community and the persons of "soni" community will have to go to "Jamanwadi" through the persons of Vahora community. If the defendants are evicted from the suit premises then the suit premises would be place or passage for going to "Jamanwadi". 9. Next contention of the learned counsel for the petitioner is regarding permanent construction of partition wall made by the defendants in the suit premises. As per Section 13 (1) (ii) of the Bombay Rent Act, permanent structure is exempted if that is of partition wall door or lattice work or the filling of kitchen-stand or such other alterations made in the premises as can be removed without serious damage to the premises. In the present case, alleged partition wall constructed by the defendant in the suit premises is not a partition wall but it is a "parti" wall between two tenants and that would not amount to a partition wall as has been considered by the Courts below. Partition wall means within the space in the tenanted premises and some wall is constructed for making partition of size and space of a particular portion of the property. In the present case, permanent structure was made by the defendant tenant between two tenants i.e. the defendant and the other tenant. As such, the exception is only to the partition wall and lattice. It is no other partition wall which is exempted under explanation to Section 13 (1) (ii) of the Bombay Rent Act. He has submitted that the courts below have erroneously considered the "parti" wall as "partion" wall for giving benefits of partition wall to the defendants. As such, the findings of the courts below are based on erroneous interpretation of law and hence the judgment and order of the courts below are not sustainable in the eye of law. I have considered the contentions raised by the learned counsel for the petitioners regarding partition wall made by the defendants in the suit premises. 10. It is admitted by witness Narandas exh. 43 in his cross-examination that it was a partition wall between the houses no. 3, 6, 2, 5 and that partition wall is still in existence. It was also admitted by him in his cross-examination that it is true that most of portion of the house occupied by the defendant-tenant was burnt in the fire. That fire started from the side of the rented premises occupied by neighbour Pinjara and due to short-circuit wall was burnt and most of the residential portion of the tenant was damaged due to the fire. It was also admitted by the said witness that it is true that the tenants are residing after making "pakka" partition wall. This Court in the case of Deviprasad Vrajlal Kachhiya V. Chhotalal Narottamdas Panchal & Another, reported in 1993 (2) G.L.R. 1703, wherein it has been considered that the construction made by the tenant without obtaining consent of the owners and permission from the municipality was considered not to be unreasonable. In that case, the demised premises were of kutcha construction and there was one room with a varandah on the west. The tenant had erected the varandah at his own cost. The demised premises were in dilapidated condition and the landlord failed to keep it in habitable repairs. The roof of the said premises was bent and was likely to fall down. Therefore, the tenant replaced the wooden roof and placed Mangalore tiles with the support of wooden bamboos, and for such work, no permission was required from the owner of the suit property. In that case, this Court found that the impugned actions of the tenant cannot be said to be unreasonable, in respect of the user of the demised premises. The user of a prudent man test if applied, then in that case also it cannot be said that the offending structures is, in any way, unreasonable, destructive or permanently injurious. In fact, as such, the offending structures cannot be said to be permanent structures. In such case, ordinarily, an expert's opinion will be very important. The opinion of an Engineer or Architect or an expert in the building construction will, surely, assist the Court to determine as to what is the nature of the offending structure. In absence of such evidence, it cannot be said that the erected portion was of permanent nature. 11. Contention of the learned counsel for the respondents in this respect is that even if it is assumed that the partition wall was made permanently with bricks, cement, sand etc. would not amount to a structure of permanent nature. In support of his contention, he has relied on the decision of this Court in the case of Jaikisondas Mangaldas, died, by his heirs and L. Rs. and others, V. Abdul Rehman Haji Ahmedbhai and others, reported in AIR 1975 Guajrat 205, where partition wall made at a particular place was made at some other place, this Court has taken view as under : "It is a permanent structure which the defendants have not proved that its removal and reconstruction of the partition wall at its original site will cause any serious damage to the suit premises. To construct a partition wall cannot be said to cause waste in the premises let out to a tenant. It is intended to protect a property and to make it more serviceable. 12. Similar view is taken by this Court in the case of Memon Noormohmad Adam since deceased through his heir and legal representatives Memon Khatijabai Abubakar & Others Vs. Miyanji Abdulkader Nanamiyan and Others, reported in 1992 (2) G.L.H. (U.J.) 16, wherein it has been observed as under : "The idea of this provision is to see that the tenant is not subjected to residence in the premises in a state of dilapidated condition. No landlord can be permitted to subject his tenant to stay in such premises. In such circumstances, if the tenant carries out repairs thereof in order to make it habitable, he cannot be said to have erected any permanent structure even if it amounts to raising of altogether new walls in the place of old dilapidated walls." 13. Similar Rule has been laid down by this Court in the case of Vora Kadarbhai Majidbhai V. Mansuri Jusabhai Shakurbhai, reported in 2001 (3) G.L.R. 3, holding as under : "Thus under this Explanation construction of partition wall or opening of a door cannot be said to be permanent wall." 14. The contention of the learned counsel for the respondent appears to have force in view of the fact that in the present case the wall between petitioners-tenants and other tenant Pinjara was burnt out due to short circuit from the side of house of Pinjara tenant and that had caused damage to the property occupied by the defendants-tenants. Obligation on the part of the landlord is to make the tenanted premises habitable by making necessary repairs. The defendant-tenant has stated in his deposition that he made request to the landlord to make the suit premises habitable by making necessary repairs in the suit property but the landlord stated that he would not adjust any amount of repairs in the amount of rent if any repair is made by any of the tenants. If no written permission was given by the landlord for making repairs by erecting wall between two tenanted premises, burnt as a result of fire spread from the side of other tenanted premises, it has to be erected by the tenants for making the same habitable. If no steps are taken by the landlord, the tenant cannot wait for a long period for permission either written or oral from the landlord. No doubt, the provisions of the Rent Act require written permission from the landlord for carrying out repairs in the tenanted premises. But the tenant having small piece of premises and if that portion is burnt and the premisses was damaged, such premises is required to be repaired then and there. As this Court has also already held that for making premises habitable if necessary repairs are made by the tenant in the tenanted premises that would not amount to a permanent structure. In the present case, the wall was constructed with bricks, cement, sand etc. at the costs of Pinjara tenant, it cannot be said to be a permanent structure in view of Explanation to Section 12 (1) (b) of the Rent Act. It is not a case where something new has been constructed by the tenant of permanent nature. But it is a structure of a partition wall made for making the tenanted premises habitable by carrying out necessary repairs, it cannot be said to be a structure of permanent nature. 15. Learned counsel for the petitioners contended that even if the partition wall is constructed with bricks, cement, sand etc. it will be considered to be a structure of permanent nature, that cannot be removed without causing damage to the tenanted property. Permanent structure is not defined in the Rent Act. If the repairing work is not made by the landlord, then tenant may get it done but for that written permission of the landlord is required. The learned counsel for the respondents contended that if that permission is not given, at the most, the tenant would not be entitled to adjust that amount of repairing towards the amount of rent u/s 23 of the Rent Act. It was also pointed out by him that a Community Hall (Jamanwadi) was closed as it was not functioning since long as it was admitted by witness Narandas Motilal's Son one of the trustee that there is no electricity in the Jamanwadi. It was also admitted by him that it is true that Jamanwadi is in dilapidated condition because it is not being used and if that Jamanwadi is not being used as per the finding recorded by the lower appellate court, the petitioners plaintiffs have no sufficient fund for making Jamanwadi and if Jamanwadi is constructed no question arises for making a passage on the suit premises after having evicted the defendants as it was also pointed out by the learned counsel for the respondents that the trust has already acquired tenanted portion from the Pinjara the other tenant in the year 1992 during pendency of this Revision Application in this Court. The learned counsel for the petitioners could not controvert this contention of the learned counsel for the respondents. It means that one rented premises occupied by other tenant Pinjara has already been occupied by the trust and if the Jamanwadi is constructed the petitioners can have sufficient passage from that portion. At the relevant point of time that portion was in possession of other tenant Pinjara and now that portion has been taken over by the trust and hence there is no need for getting the defendants evicted from the suit premises. If reasonable and bona fide requirement is not established by the landlords plaintiffs no question arises for proving comparative hardship. 16. Considering the facts and circumstances of the case and the contentions made by the learned counsel for the parties as well as the findings recorded by the lower appellate Court, I am not in a position to hold otherwise that the trust of the petitioners requires the suit premises for reasonable and bona fide requirement for their personal use and occupation. 17. So far as the partition wall is concerned, I have also come to a conclusion that the findings recorded by the Courts below are not perverse and if they are not perverse and are not arrived at on the basis of wrong application of any statutory provisions of law, this Court would be reluctant to interfere with the findings of the Courts below in revisional jurisdiction u/s 29 (2) of the Rent Act. 18. So far as the additional ground is concerned, the plaintiff has filed an application being Civil Application No. 6057 of 2003 seeking permission for producing additional evidence with regard to subsequent events and stated therein that the respondents have acquired suitable residential property i.e a bungalow in Darji Cooperative Society, situate opposite Marketing Yard and the said property other bungalows have been constructed on Final Plot No. 79/2, T.P. Scheme No. 1, Dahod having 850 to 900 sq. ft. of built up areas. The respondents have also acquired a large property in the joint names of their wives namely Hemaben Kamleshkumar and Manoramaben Ghanshyambhai in the same locality, just opposite the suit premises i.e. the premises forms the subject matter of the present litigations. The copies of the documents viz. Municipality papers and from Property Card of City Survey, Dahod have been filed. Property bearing No. 323/1, Mahatma Gandhi Road, Dahod is purportedly purchased in the names of two ladies for Rs.2,99,991/-. That property comprises three floors and has two shops and one shop, where a beauty parlour was being run, is presently in the possession of the respondents. Over and above the aforesaid properties, there is adequate accommodation of at least six rooms or so and that said property is purchased on 15-12-1997. The respondents along with their family members are residing in the said property purchased by them. The suit property is being occasionally used by them. As such, there is no hardship to the defendants at this stage if they are evicted from the suit premises. The petitioners also gave an offer for providing a shop, admeasuring 10 ft. depth x 7 ft. width of frontage, at the level of the basement but that offer was declined by the respondent Ghanshyam Kanaiyalal. That offer was made with a view to get the suit premises for their use and occupation of the trust. Some extracts from Dahod Municipality have been filed to show that Hemaben Kamleshkumar Parmar and Manoramaben Ghanshyambhai Parmar have acquired some properties which have two storeys of R.C.C. House, "Otala" at ground floor, one shop having shutter and two rooms in first floor. In fact, some other documents from the said municipality have been filed. An affidavit has also been filed on behalf of the petitioners, wherein it is stated that it has come to the information of the trustees of the trust that the respondent No. 1/1/B grand son of original tenant Kamlesh Kanaiyalal Parmar had purchased land admeasuring 73.11-50 sq.mt. on 27-5-1991. The said plot of land is situated in Darji Cooperative Housing Society and a "pakka" structure has been constructed thereupon subsequently and the same has been built up area of about 800 sq. ft. Another plot of land has been purchased in the name of mother of the present respondents - Surajben Jagannath Parmar and construction has been made thereon. But that bungalow was sold off in 2000-2001. The petitioners have also filed other documents to show that Kamlesh Kanaiyalal Parmar respondent no. 1/1/B purchased some other plot and constructed a house and the same is still there. 19. In support of his contention, affidavit-in-reply has been filed by Ghanshaymbhai in Civil Application No. 6057 of 2003