1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2532 OF 1997 ALONG WITH CIVIL APPLICATION NO. 2264 OF 2005 AND CIVIL APPLICATION NO. 2775 OF 2005 AND CIVIL APPLICATION NO. 92 OF 2005 AND CIVIL APPLICATION NO. 2254 OF 2005 AND CIVIL APPLICATION NO. 1732 OF 2005 IN WRIT PETITION NO. 2532 OF 1997 Shri Shankar Ganesh Apte & Anr. .. Petitioners Vs Krishnakant Narasiyya Chintal. .. Respondent -- Shri P.N. Karlekar for the Petitioners. Shri Pramod J. Pawar for the Respondent. -- CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010 JUDGMENT : . Heard learned counsel appearing for the Petitioners. The Petitioners are the landlords and the Respondent is the tenant. A suit for eviction filed by the Petitioners under the Bombay Rents, Hotel and Lodging 2 House Rates (Control) Act, 1947 ( hereinafter referred to as the said Act of 1947 ) has been dismissed by the Trial Court and the decree has been affirmed by the Appellate Court. The suit premises consists of one room, more particularly described in the Plaint. The case of the Petitioners is that the room was let out to the Respondent for residential purpose. An allegation in the plaint is that though the suit premises was let out for the residential purposes, the Respondent started using the same for commercial purposes. The other allegation is that the kitchen platform, sink and water tab were removed by the Respondent. The allegation is that without taking permission of the Municipal Corporation, a loft/mezzanine floor was made in the suit premises out of which a part was removed subsequently. It is alleged that though the premises was let out for residential use, the Respondent-tenant has been using it for his tailoring business. In short, the suit was filed on the ground incorporated in Clause (b) of Sub-section (1) of Section 13 of the said Act of 1947 and on the ground of change of user. Eviction was also sought on the ground of bonafide requirement and subletting. The Trial Court recorded a finding that the document at Exhibit – 54 which incorporates terms and conditions of the tenancy clearly records that the purpose of letting of the suit premises was composite i.e. for residential and business. The Trial Court also noted that the Petitioners have established that the Respondent has constructed a potmala ( loft ) in the suit premises. Thus, only one issue was answered in favour of the Petitioners by the Trial Court i.e. permanent construction on which the decree for possession was passed. All other grounds of eviction were held 3 as not established. 2. The Appellate Court has interfered by holding that the case of permanent construction has not been established. The Appellate Court noted that the document at Exhibit – 54 which is in the nature of agreement of tenancy was binding on the Petitioners. The Appellate Court held that the said document shows that the suit premises was let out to the Respondent along with the potmala(loft). Therefore, the decree for possession was set aside and the suit was dismissed. There was no cross Appeal or cross-objection preferred by the Petitioners before District Court. The Petitioners did not argue before the District Court any ground except the grounds of permanent construction and change of user. 3. The learned counsel appearing for the Petitioners has taken me through the pleadings, notes of evidence and other material on record. He submitted that the purpose of letting of the suit premises was only for a residential use. He submitted that there is enough evidence on record to show that the Respondent had stopped using the suit premises for residential use and removed the kitchen platform, sink and water tab fixed therein. He submitted that the Respondent was keeping sewing machine on the loft. He pointed out that the Respondent started using the suit premises only for the purposes of tailoring business. He submitted that the construction of potmala/loft is admitted by the Respondent. He submitted that the potmala is of a permanent nature inasmuch as the same is being 4 used for carrying on business. He submitted that considering the nature of potmala-loft, construction thereof is of the permanent nature. As far as the document at Exhibit – 54 is concerned, the learned counsel appearing for the Petitioners submitted that it is only an affidavit allegedly signed by the Respondent and the same does not bear the signature of the Petitioners. He submitted that the said document is not an agreement of tenancy and that since it is unilaterally signed by the Respondent, it will not bind the Petitioners. He invited my attention to what has been set out in the Civil Application No. 2264 of 2005. He pointed out that the Respondent constructed a loft/potmala without the permission of the Municipal Corporation and in fact during the pendency of the suit, a staircases were constructed. He relied upon the notices issued by the Pune Municipal Corporation on 24th February, 2002, 11th March, 2002 and 17th August, 2002 addressed to the Petitioners in which it is alleged that the unauthorized construction of the loft/potmala has been made in the suit premises and an action will be initiated. He pointed out that the notice dated 11th March, 2002 also refers to a staircase made by the Respondent. He submitted that erection of the staircase is a subsequent event. Relying upon the provisions of the Bombay Provincial Municipal Corporations Act, 1949 ( hereinafter referred to as the said Act of 1949 ), he submitted that the very fact that the notice was issued for demolition of the loft shows that the said loft is of permanent nature. He submitted that the said subsequent events will have to be considered. In the alternative, he submitted that if this Court is not inclined to accept the submissions of the Petitioners, an order of remand 5 may be passed permitting the Petitioners to lead evidence for substantiating the subsequent events. 4. I have given careful consideration to the submissions. As far as the change of user is concerned, everything turns on the agreed purpose of letting. Exhibit -54 is an affidavit affirmed by the Respondent on 31st December, 1985. The said affidavit records terms and conditions of the tenancy. The said affidavit records that even before the execution of the said affidavit, the suit premises was let out to the Respondent and that a loft was already erected in the suit premises. There is specific reference to the loft in Clause (1) of the affidavit which records that the suit premises have been let out at the rent of Rs.60/- along with the loft. Clause (3) of the said affidavit records that the user of the premises will be for a residential and business purpose. The contention of the learned counsel appearing for the Petitioners is that the said document is not binding on the Petitioners and in any case it is a unilateral document which is not signed by the Petitioners. Though this factual submission is not canvassed before the Appellate Court, I am considering the said factual submission. 5. Perusal of the document at Exhibit – 54 shows that the stamp paper has been purchased on 30th December, 1985 in the name of the Respondent by the 1st Petitioner Shankar Ganesh Apte. At this stage, it will be necessary to advert to the averments made in the plaint. After describing the suit premises, there is a specific averment that at the time of 6 letting out the suit premises, a document was made, but a day before the document was made, without permission of the Petitioners and the Municipal Corporation, the Respondent has erected a potmala/ loft. There is a specific assertion that the Respondent has taken the suit premises on rent along with potmala (loft). The translation of 3rd paragraph of the Plaint reads thus: - “The Defendant has taken the premises on rent by executing affidavit dated 31st December, 1985 bearing registration No.49035/85 and a copy of the said writing has been produced along with the documents produced in the suit. It is accepted that the rent of the suit premises is Rs.60/- and it is accepted that there are taxes payable to the Government and Pune Municipal Corporation. The possession of the premises has been taken over in May, 1985 but for some reason, the document has been executed on 31st December, 1985.” 6. The document at Exhibit – 54 shows that the same has been affirmed before the Special Executive Magistrate, Pune, at Sr. No.49035/85. The said document, as stated in the plaint, is produced by the Petitioners themselves. The Petitioners are relying upon the said affidavit at Exhibit – 54 and in so many words, it is stated that on the basis of the said affidavit, the Respondent had taken tenancy of the suit premises. The matter does 7 not rest there. The 1st Petitioner stepped into the witness box. In the first paragraph of his deposition, he has relied upon the said affidavit which was produced by him. Not only that the affidavit was relied upon, but the Respondent cross-examined the 1st Petitioner on the basis of the contents of the said affidavit. Therefore, it does not lie in the mouth of the Petitioners now to say that they are not bound by the said document inasmuch as they have relied upon the said document in the Plaint by stating that the same contains terms and conditions of the tenancy. As stated earlier, the stamp paper on which the said document has been executed was purchased by the 1st Petitioner himself. Perhaps that is the reason why no submission was made before the Courts below that the petitioners are not bound by the said document. The Petitioners are bound by the said document as they have referred to and relied upon the same in the plaint. The Clause (3) of the said document records that the purpose of letting will be composite purpose for residential as well as business. The entire suit proceeds on erroneous assumption that the suit premises was let out only for residential purpose. On the basis of what is stated in the document at Exhibit -54, the Petitioners could not have made out such a case in the plaint. The document which is relied upon by the Petitioners shows that the suit premises was let out for residential and business purposes. Therefore, the Courts below were fully justified in rejecting the case of the Petitioners of change of user which proceeds on a completely erroneous footing that the letting was only for the residence purposes 8 7. That takes me to the allegation in the Plaint regarding construction of a loft. As pointed out earlier, there is a specific assertion that the document at Exhibit – 54 was made on 31st December, 1985 but the Respondent was placed in possession of the suit premises in May, 1985. A very specific admission in the plaint is that the Respondent constructed a loft prior to execution of the document dated 31st December, 1985. Not only that there is a specific recital in Exhibit 54 that the Respondent had taken on rent the suit premises along with the loft, but there is a further averment in the plaint that the loft was a wooden loft, a part of which was subsequently removed by the Petitioners. Thus, taking the averments made in the plaint as it is, the premises were taken on rental basis by the Respondent along with the loft. Even assuming that the loft was constructed subsequently, the pleading is that the loft was a wooden loft. There is no assertion in the plaint as well as in the evidence as to how such loft can be of permanent nature. There is no evidence adduced as regards the mode of annexation and the degree of annexation. There is no evidence adduced on the question whether the loft can be removed without damaging the structure of the suit premises. Therefore, this was a case where even accepting the case made out in the plaint as it is, the Court could not have passed a decree for possession on both the grounds. It was sought to be contended that alterations have been made by removing sink, kitchen platform and water tab. However, the decree was not sought on the ground that the damage has been allegedly caused to the suit premises. 9 8. In Civil Application No.2264 of 2005, there is a bald statement made in one line that after filing the Writ Petition, the Respondent- tenant had constructed a loft with staircase. Reliance is placed on the notices issued by the Pune Municipal Corporation in purported exercise of powers under Section 260 of the said Act of 1949. In the application, there is not even a whisper about the nature of the loft allegedly erected or the nature of the staircase. It is not stated as to when the said work was carried out. A statement has been made across the bar that the notices issued by the Pune Municipal Corporation show that the construction is illegal. Reliance is placed on the decision of this Court in the case of Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar & Ors., [2001(1) Mh.L.J. 894 ]. It was submitted that the Court of law should not tolerate illegality. A submission is also made on the basis of the judgment of the Apex Court in the case of Pasupuleti Venkateswarlu vs. The Motor and General Traders, [ AIR 1975 SC 1409 ] that to avoid multiplicity of proceedings, subsequent events should be taken into consideration and the order of remand should be passed. 9. It must be stated here that under the provisions of the said Act of 1947, mere illegal act on the part of the tenant is no ground for eviction. For determining the question whether a tenant has carried out construction of permanent nature, the fact that permission of the local authority is not obtained is irrelevant. Therefore, the notices relied upon by the Petitioners are totally irrelevant for determining whether the construction is of 10 permanent nature. 10. Now, the question is whether an order of remand should be passed. As pointed out earlier, in the Writ Petition, a case has been made out that a document which is relied upon in the plaint is not binding upon the Petitioners as it is not signed by the Petitioners. In the Civil Application which is referred to above, there is only one sentence that during the pendency of the Petition, a loft and the staircases have been constructed. As pointed out earlier, there is already a loft in existence in the suit premises even before creation of the tenancy. It is not the case made out in the Civil Application that the said loft was removed and a new loft was erected. The averments made in the application are very vague. Considering the conduct of the Petitioners and the manner in which the averments are made in the said Civil Application, in exercise of writ jurisdiction, order of remand cannot be passed especially when it is found that on the basis of material on record, the Courts below could not have passed the decree for possession. If at all any cause of action has arisen during the pendency of the Petition, it is for the Petitioners to file a separate suit in that behalf. In the circumstances, there is no merit in the Civil Application No.2264 of 2005 and the same deserves to be rejected but by keeping the remedy of filing a fresh suit open. No other Civil Application has been pressed. 11 11. Hence, I pass the following order. (a) The Writ Petition is rejected. The rule is discharged with no orders as to costs. (b) Civil Application No. 2264 of 2005 stands dismissed. (c) Rest of the Civil Applications do not survive as there is no merit in the main Petition and the said Civil Applications are rejected. (d) It is clarified that it will be open for the Petitioners to file a fresh suit on the alleged cause of action which has arisen during the pendency of this Writ Petition. (A.S.OKA, J)