1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4456 OF 1992 Sayyad Kasam Imam, Age 50 years, Occ.; Service, R/o.1296, Kasba Peth, Pune 411 011. Petitioner versus 1. Shaikh Ibrahim Abdul Rahiman, since deceased through heirs :- 1(a). Bismillabi Ibrahim Shaikh, Age adult, Occ. Household, 1(b). Fishibalabi Ibrahim Shaikh, Age adult, Occ. Household, Both R/o.1296, Kasba Peth, Pune. 2. Shaikh Abdul Aziz Abdul Rehman, Age 46 years, Occ. Contractor, R/o.242, Bhavani Peth, Pune 411 002. Respondents Mr.T.D.Deshmukh for petitioner. Mrs.A.A.Agarwal for respondent nos. 1 and 2. CORAM : A.S.OKA, J. DATE : 21st April 2010 JUDGMENT : 1. Heard learned counsel for the petitioner and learned counsel for respondent nos.1 and 2. For the sake of convenience, the parties are referred to with reference to their status before the Trial Court. The 2 petitioner is the original defendant and the respondents are the plaintiffs- landlords. A suit for possession under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the said Act") was filed by the plaintiffs in respect of property more particularly described in paragraph 1 of the plaint. The suit premises is a shop on the ground floor having area of 10x8 feet in property bearing CTS No.1296, Kasba Peth, Pune-411 011 and a room admeasuring 10x10 feet on the first floor in the same property. It is stated in the plaint that the suit premises along with one more room on the first floor was let out to one Imamsaheb Kasam Saheb as a tenant. The family of the tenant was divided in the year 1960. It is stated that at the time of division, the shop and one room on the first floor was given to the defendant Sayyed Kasam Imam. It is stated that on the first floor there was a common Sink (Mori) which was used by the defendant and his brother till their relationship was cordial. It is stated in the plaint that the defendant was allowed to make use of the bathroom on the ground floor in common with another tenant and the Mori on the first floor was used by the defendant's brother. The allegation in the plaint is that the defendant has converted the shop premises on the ground floor for use as residence and, therefore, he has committed breach of the terms and conditions of the agreement of tenancy. It is alleged that the defendant carried out permanent alterations by erecting a permanent wooden partition from three sides of the gallery on the first floor and has constructed a Mori on the ground floor by making holes in the walls for the purposes of fixing pipes for draining the water to the drainage of nearby building. 3 2. Written statement was filed by the defendant. A contention was raised in the written statement that the tenancy of the shop premises on the ground floor and tenancy of the room on the first floor is distinct and separate and, therefore, the suit was not maintainable. It was contended in the written statement that the defendant was required to use the Mori on the ground floor and as such pipe of the Mori was leaking and damaged. A case was made out that though request was made by the defendant to the plaintiffs to replace the pipe of Mori , nothing was done and the defendants were forced to replace the pipe of Mori and carry out repairs. It was contended that the brother of the defendant was not allowing him to use the bathroom on the first floor. It was asserted in the written statement that the defendant was using the room on first floor for the purposes of residence and the shop premises for the purposes of business. The allegation regarding closure of open balcony was denied. 3. The Trial Court framed various issues. First issue were based on the defence of the defendant of mis-joinder of causes of action. The second issue was on the basis of contention of the defendant regarding non-joinder of necessary parties. The third issue was on the allegation of change of user. The fourth issue was regarding non user for a continuous period of six months for the purpose for which the shop premises was let out. The 5th issue was as regards allegation of erection of permanent structure. The issue nos.3 to 5 were answered in favour of the plaintiffs. As far as permanent structure is concerned, the finding of the Trial Court 4 was that the construction of Mori in the shop premises amounts to carrying out permanent construction. However, the allegation of permanent construction in the open balcony was not accepted. Therefore, the Trial Court proceeded to pass a decree for possession. An appeal was preferred by the defendant. The Appellate Court dismissed the appeal and confirmed the decree. 4. The learned counsel appearing for the petitioner has invited my attention to the pleadings and evidence on record. He submitted that there is no pleading based on the ground under section 13(1)(k). He submitted that in absence of pleadings, the Court could not have passed a decree for possession on the basis of the said ground. He relied upon a decision of this Court in the case of C.R.Shekhar Vs. Lhabai D. Rohida and another (1981-Mh.L.J.-437) in support of his contention. He submitted that even assuming that the allegation regarding construction of Mori in the shop premises on ground floor is true, the same was meant for beneficial enjoyment of the suit premises. He placed reliance on the decision of this Court in case of Alisaheb abdul Latif Mulla Vs. Abdul Karim Abdul Rahman Mulla and others (1981-Mh.L.J.-734). As far as ground of change of user is concerned, he submitted that the pleading was vague and the finding on the said issue was based on surmises and conjectures. He, therefore, submitted that the impugned judgments are perverse. 5. The learned counsel appearing for the respondents-plaintiffs 5 submitted that an issue was framed on the ground of non user under section 13(1)(k) of the said Act, the parties adduced evidence and in fact the decree based on the said ground has been challenged on merits by the petitioner-tenant. She submitted that the parties were aware that the ground under section 13(1)(k) was involved in the suit and at this stage the grievance made by the petitioner regarding failure to plead the ground cannot be considered in the writ petition. As far as construction of permanent nature is concerned, the learned counsel pointed out the evidence on record and the commissioner's report. As regards change of user, the learned counsel invited my attention to the findings recorded by the Courts below. The learned counsel submitted that in writ jurisdiction under Article 227 of the Constitution of India, this Court cannot re- appreciate the evidence and interfere with the concurrent findings of facts. Reliance was placed on a decision of the Apex Court in case of Ram Dass Vs. Davinder ([2004]3-SCC-684). 6. I have given careful consideration to the submissions. As far as issue of non user is concerned, a perusal of the plaint shows that there is no specific pleading in that behalf. In the case of C.R.Shaikh (supra), this Court had an occasion to consider section 13(1)(k) of the said Act. In paragraph 11 of the said decision, this Court held thus :- "11. Now, it is needless to say that section 13(1)(k) enables a landlord to recover possession of premises where they have "not been used without reasonable cause," for the purpose for which they had been let "for a continuous period of 6 months immediately preceding the date of the suit." The section therefore emphasises a 6 continuous period of 6 months preceding immediately before the date of the suit. What gives a cause of action therefore is a continuous non user for a period of 6 months immediately preceding the date of the suit. It is not merely enough that there should be actual non user for a continuous period of 6 months immediately preceding the date of the suit, but that, such non use must be further "without a reasonable cause." Unless therefore, the landlord makes out a case of non user for a continuous period of 6 months immediately preceding the date of the suit, there is no further question. Even where such a case is made out, a further case has also to be made out that the non use was without any reasonable cause. Both parts of the section therefore, namely, the continuous non use up to the date of the suit and the absence of reason for such non use are material and important." (emphasis added) In paragraph 12, this Court proceeded to observe thus :- "12. If we analyze the plaint in the light of the requirement of the section, it will be seen that the words "without reasonable cause" are wholly absent in the plaint. If that is so, I do not think that it could be said that the plaintiff had made out a case under section 13(1)(k) so that, the tenant could be required to meet such a case. It is also not shown and not alleged that the non use of the premises had been for a continuous period of 6 months immediately preceding the date of the suit. The section emphasises the situation, and a continuation of a situation and its existence at the date of the suit. If such a situation and its existence for a continuous period of 6 months does not exist at the time when the suit is launched, then the cause of action does not accrue. Even if the tenant has not used the premises for a period of 6 months some time before the filing of the suit, or for more period, that would not give a landlord a cause of action. That state of affairs must continue till the date of the filing of the suit. If therefore, a tenant who had not used the premises for a long period, but had started using them before the date of the suit, the cause of action is gone. ... ... ..." 7. In the present case, in fact, there is absolutely no pleading on this aspect. What has been held by this Court is that unless there is pleading 7 in terms of section 13(1)(k) of the said Act, the landlord is not entitled to a decree on the said ground. What is held by this Court is that the foundation in the pleadings by incorporating averments in terms of the section is a condition precedent for passing a decree under section 13(1) (k). Therefore, the decree on the said ground in the present case cannot be sustained in as much as there is complete absence of pleadings in that behalf. 8. As far as allegation of permanent structure is concerned, the Courts below have come to the conclusion that the construction of Mori on the ground floor amounts to permanent construction. In paragraph 6 of the plaint specific averments have been made as regards construction of Mori. The relevant averments read thus: "6. ... ... ... Besides that the defendant has constructed a `Mori' on the ground floor by making holes in the walls for the purposes of putting pipes for draining the water in the drainage of one Mr.Hanif residing in the same building without written consent and permission of the plaintiffs. this act on part of the defendant is a contravention of the Bombay Rent Act." Reliance was placed on report of the commissioner in which it is stated that in the shop premises on the ground floor there was a Mori constructed admeasuring 45 inches x45 inches and width of the wall of the said Mori is 9 inches. The case of the petitioner in the written statement was that the Mori was already in existence and all that has been done by him is that he has changed the pipes and carried out renovation. As pointed out earlier, in the plaint there is no specific 8 averment that the construction of any wall was made for the purposes of making a Mori. The only allegation is that holes were made in the walls for the purposes of putting pipes for draining the water. In the plaint itself it is averred that initially the petitioner was using a bathroom on the first floor along with his brother. However, the arrangement continued only till their relationship was cordial. The allegation in the plaint is that the petitioner was allowed to use the bathroom on the ground floor along with another tenant. 9. It will be necessary to consider the findings of the Courts below on this aspect. The Trial Court has referred to the commissioner's report and has recorded a finding that the report indicates that a new Mori has been constructed by the defendant. The learned Judges observed that the commissioner has not set out that there was a Mori in existence which has been repaired. The finding is that new Mori was constructed by the defendant without the consent of the plaintiffs. As far as Appellate Court is concerned, a finding has been recorded by the Appellate Court that the new Mori has been constructed by the defendant. The Appellate Court recorded a finding that no evidence was adduced by the defendant that the old Mori was in existence. A perusal of the judgments of the Courts below show that the Courts have not examined whether the construction of Mori amounts to construction of permanent nature. The Courts below ought to have considered the degree of annexation, mode of annexation with the main structure and several other factors such as removability of the structure. Only on the ground that the Mori was constructed, the 9 learned Judge has come to the conclusion that the construction of permanent nature was carried out by the defendant which is prohibited by section 13(1)(b). Reliance was placed by the defendant on the decision of this Court in case of Alisaheb Abdul Latif Mulla (supra). This was a case where allegation against the tenant was construction of a Mori in the premises let out to him. This Court considered the concept of permanent construction. this Court held that section 13(1)(b) will not be attracted if work has been carried out to enable the tenant to use the tenanted premises for better enjoyment and beneficial use. This Court held that mere erection of a wall for the purposes of making a Mori or bathroom for providing privacy to a person who otherwise had no privacy, in absence of any foundation, in the absence of any evidence to show that the wall was constructed after cutting into existing wall by removing the bricks of the existing wall for better joint of two walls would not make it a perverse structure. In the present case, the Court Commissioner has found that the width of the wall of Mori was of 9 inches. In case of Alisaheb Abdul Latif Mulla (supra), this Court proceeded to hold that by erecting a wall of thickness of one brick with plaster on two sides, without any foundation, taking advantage of a corner and the existing two walls so as to provide privacy to the person bathing, cannot be described as erecting a permanent structure. This Court held that the object of carrying out such construction is to provide better facility or to provide privacy to a person who is actually having a bath. As stated earlier, in the plaint itself the case of the plaintiffs is that the bathroom on the first floor was no longer available to the tenant and he was told to share a bathroom with another 10 tenant who was occupying the ground floor premises. 10. It will be necessary to consider the finding on the ground of change of user. As stated earlier, at the time of recording evidence, a case was made out of complete non user for six months. The decree passed on the said ground is required to be set aside as indicated earlier. Now, what was required to be proved by the plaintiffs for establishing change of user was that not only that the user for business was stopped but the shop was converted into residential use. The Appellate Court has recorded a finding on this aspect in paragraph 7. The Appellate Court has referred to the evidence of the son of the defendant who disclosed that his grandmother used to sell vegetables in the ground floor premises and the said grandmother died in the year 1992. Reference was made to what the son of the defendant stated. He stated that after her death, the business was carried out by his paternal aunt and in the year 1985 the business was closed. The defendant's son stated that his father left for Saudi Arabia in the year 1985 and returned in the middle of 1986. Thereafter he started a chicken shop on the ground floor. Licence under the Shop Act was issued on 15.1.1987. Apart from bald observation that the ground floor premises was used for the purposes of residence, there is no specific finding recorded on the basis of evidence that on the date of institution of suit, the premises on the ground floor was converted into residential use. The Court was perhaps impressed by the fact that from the year 1985 to 1987 there was no business carried out. As stated earlier, the ground of non user cannot be considered. Even the Trial Court has committed same 11 error. On finding that for a period of two years there was no business carried out, the Court has jumped to the conclusion of change of user. In fact, in paragraph 5 of the deposition of the second plaintiff he admitted that except his bare words, there is no evidence to show that the defendant was using the shop premises for residential purpose. Therefore, taking the findings of both the Courts on this issue as it is, there is no finding based on the evidence that not only that for a period of two years the shop premises was not used for business, but it was converted into residential use. Unless there was a finding recorded on the basis of evidence that the ground floor premises was converted into residential use, the decree on the ground of change of user could not have been passed. 11. In the circumstances, the decree for possession passed by the Courts below cannot be sustained and the same will have to be set aside. 12. Hence, I pass following order :- A) Rule is made absolute in terms of prayer clause (b). The suit filed by the plaintiffs stands dismissed; B) There will be no order as to costs. (A.S.OKA, J.) 12 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2694 OF 2009 IN WRIT PETITION NO.4456 OF 1992 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr.T.D.Deshmukh for respondent. Mrs.A.A.Agarwal for applicant. CORAM : A.S.OKA, J. DATE : 21st April 2010 PC :- 1. Heard learned counsel appearing for the parties. Civil Application is allowed in terms of prayer clauses (a) to (d). (A.S.OKA, J.)