VITHAL N. SHETTI AND ANR.

PRAKASH N. RUDRAKAR AND ORS.

NOVEMBER 20, 2002

[R.C. LAHOTI, BRIJESH KUMAR AND ARUN KUMAR, JJ.]

Bombay Rents, Hotel and lodging House Rates Control Act, 1947:

S. I 3(J)(b)-Tenant errecting permanent structure-Consent of landlord to be in writing-Proceedings for eviction on ground that tenants errected permanent structures without obtaining landlord's consent in writing and

without having building plans sanctioned by Municipal Corporation-Tenant contending to have obtained prior sanction of Municipal Corporation and of the owner-Trial court found the grounds for eviction not made out, but D appellate court found the grounds made out and allowed eviction-Tenant's petition under Article 227 dismissed by High Court-In appeal before Supreme Court tenant reiterating his plea, which was raised before but was negatived by High Court, that the consent given by landlord formed part of Municipal record and the same be summoned-Held, written statement does not E specifically plead the landlord having given the consent in writing-Particulars of the consent given by landlord also not pleaded-The plaint makes a positive averment of a negative fact, i.e. the absence of consent in writing of landlord to raising of permanent structure by tenant over tenancy premises-It was necessary for tenant to have raised specific pleading in written statement setting out the particulars of consent in writing-Even factum of landlord F having given such consent in writing is not stated nor is there anything on record on which tenant relies-Tenant should have taken steps before trial court for summoning Municipal records-Nor such effort appears to have been made before appellate court-High Court rightly declined to accept a belated prayer for summoning the Municipal record-Appeals dismissed- Since tenants have remained in occupation of suit premises for a long time G and running commercial activities therefrom, they are allowed I 2 months time to vacate.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2500-2502 of 1998.

VITHAL N. SHETTI v. PRAKASH N. RUDRAKAR 285

From the Judgment and Order dated 28.1.1998 of the Mumbai High A Court in W.P. No. 2416/85. C. Application No. 2218/85. 6801of1997.

Jaideep Gupta, Satya Mitra and Sanjay R. Hegde, for the Appellants.

Makarand D. Addkar, Praveen Satale, Vijay Kumar, Vishwajit Singh and Uday Urmesh Lalit, for the Respondents.

The following Order of the Court was delivered :

This is tenant's appeal by special leave. Though the appeals are three in number, the subject matter is one common judgment and therefore, the C three are being treated as ont: appeal. The suit pre1nises are situated in the city of Pune and governed by the provisions of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter " the Act " for short). The suit premises are admittedly owned by respondent No. I and are held in tenancy by the appellant. Proceedings for eviction of the appellants were initiated on very many grounds. At this stage, we are concerned only D with the ground of eviction available under clause (b) of sub-Section (l) of Section 13 of the Act, which p1 ovides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure.

Incidentally, it may be stated that the suit premises were initially owned by one Dattaraya Chiplukar, who died in the year 1974 and his widow, having succeeded to the rights in the property, transferred the same to the respondent No. l in the year 1978. The appellant came in the possession of

the premises sometime in the year 1961 having acquired the tenancy rights F from his predecessor in interest - one Puram, who in turn had succeeded the tenancy rights from one Shri Niwas Patki, who was inducted as tenant in the year 1941 by Chiplunkar.

It is not disputed that in the year 1961, the tenant-appellant has raised a permanent structure over the tenancy premises. The structure raised by the G appellant consists of a dinning hall, a kitchen and lavatory. According to the landlord-respondent No. I, the said construction was carried out without obtaining consent of the landlord and without having the building plans sanctioned by the Municipal Corporation. The plea taken by the appellant in the written statement is one of denial of the ground. Insofar as the consent H

A of the landlord to the alleged construction is concerned, the tenant pleaded

- "Abutting to the road these defendants have constructed a building for restaurant in the year 1961. For that purpose the defendants 1 and 2 have taken a prior sanction of the Pune Municipal Corporation and also the , owner Shri Chiplunkar". The trial com1 found the ground for eviction not made out.

B On an appeal preferred by the landlord-respondents, the decree of the trial court was reversed. In the opinion of the appellate court, the ground for eviction under Section l3(1)(b) of the Act was made out. The aggrieved tenant preferred a petition under Article 227 of the Constitution in the High Court of Bombay, which has been dismissed.

C The crucial issue for decision is whether it can be said that the pennanent construction raised by the tenant-appellant had the consent in writing of the landlord as the law requires.

To begin with, the written statement does not specifically plead the D landlord having given the consent in writing for raising the pennanent structure by the tenant. The particulars of the consent given by the landlord are also not pleaded. The vagueness in the pleadings raised in the written statement assumes some significance in the light of what transpired during the trial and before the High Court. lt appears that the case sought to be projected by the tenant-appellant before the trial court was that he had obtained the sanction E of the Municipal Corporation for the structure raised by him. He being the tenant, the Municipal Corporation would not sanction the building plans unless the application for sanction was accompanied by the consent of the landlord. Such consent was given by the landlord and fonned part of the record in the custody of the Municipal Corporation. The tenant moved an F application for obtaining certified copies of the relevant records but he was told that the record was not traceable. During the pendency of petition under Article 227 of the Constitution before the High Court on I st July, 1985, the tenant-petitioner moved an application in the High Court submitting that the record which was earlier reported to be not traceable by the Municipal Corporation, was then traced out and, therefore, a prayer was made to the G High Court for summoning the record from the custody of the Municipal Corporation. The High Court formed an opinion that the prayer for summoning the record could have been made to the trial court, which was not done, and therefore, there was no occasion much less a justification for allowing such a prayer made to the High Court which was clearly belated and that too made H during the hearing of a petition under Article 227.

VITHAL N. SHETII v. PRAKASH N. RUDRAKAR 287

It was submitted by the learned counsel for the appellants that the A landlord had given a consent in writing, \Vhich was to be found in the records of the Municipal Corporation and the High Court should have granted the appellants' prayer for summoning the record. It was further submitted that either the matter be remanded to the High Court with the direction to summon the record, or, in the alternative, this Court may summon the record from the B custody of the Municipal Corporation. The prayer is vehemently opposed by learned counsel for the respondents submitting that the appellants' effort is to prolong the proceedings. It was submitted that there was no consent given and several relevant fac\ors available on the record point out that the appellant is making an abortive attempt somehow to build up a case of consent wherein he has so far not succeeded.

Having heard the learned counsel for the parties, we are satisfied that no case is made out for interfering with the judgment of the appellate court as also the order of the High Court.

The plaint makes a positive averment of a negative fact, that is, the D absence of consent in writing of the landlord to raising of the pennanent structure by the tenant over the tenancy premises. In the wake of such averment in the plaint, it was necessary for the tenant to have raised specific pleading in the written statement setting out the particulars of the consent in writing.

Not only the particulars are not pleaded but even the factum of the landlord having given a consent in writing to the pennanent construction is not stated.

There is not even a whisper in the written statement of such consent, on which the tenant relies, having been ever given by the landlord and forming part of the record of the Municipal Corporation. If the Municipal Corporation had expressed its inability to make available certified copies of relevant records to the appellants, the appellants should have taken steps before the trial court for SHmmoning the original record from the custody of the Municipal Authorities, which could have shown the bonafides of the plea raised by the tenant-appellant. Nothing such was done. Similarly, no effort for production

of the alleged consent in writing of the landlord appears to have been made during the pendency of the proceedings before the appellate court. In this G background, the High Court rightly declined to show its indulgence to a belated prayer for summoning the record from the custody of the Municipal Corporation.

No fault can be found with the view taken by the High Court. The appeals are held devoid of any merit and liable to be dismissed. They are H

A dismissed accordinly. However, in view of the fact that the tenant-appellant

has remained in occupation in the suit premises for a long time and is running his commercial activities therefrom, the appellant is allowed 12 months' time for vacating the suit premises subject to his filing usual undertaking within a period of four weeks from today.

B R.P.

Appeals dismissed.