Judgement

SABYASACHI MUKHARJI, J.:- These appeals, by special leave, by the landlords are directed against the judgment and order of the High Court of Bombay dated 3/4th July, 1979.

2. Two questions arise for consideration in these appeals- (i) whether the structure constructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant; (ii) what is the scope and extent of the jurisdiction of the High Court under Art. 227 of the Constitution on questions of facts found by the appellate Bench of Small Cause Court.

3. In order to appreciate these questions it is necessary to reiterate the relevant facts. The second appellant being plaintiff No. 2 in the Original Suit leased out the premises involved herein being a godown measuring 11, 500 sq. ft. at 156 A, Tardeo, Bombay-7. The said premises was given by the landlord to the tenant, the respondent herein - M/s. Bright Brothers (Pvt.) Ltd. on lease vide the registered lease dated 14th April, 1947 for a period of ten years commencing from 1st September, 1946. By 1953, the respondent company began to fall into arrears in payment of rent. The respondent-tenant filed an application before the appropriate Rent Court for fixing the standard rent.

4. On 14th June, 1958, the advocate of the second appellant sent a notice to the respondent-tenant calling upon them to pay up the arrears for the period from September, 1956 to May, 1958 (both months inclusive), as well as for earlier arrears of rent of Rs. 20,850,/-. On 1st December, 1958 a second notice was issued on behalf of the original plaintiff No. 1 calling upon the respondent to quit and vacate the premises in question on the grounds, inter alia, (a) unauthorised construction of permanent nature; (b) obstructing roadways; and (c) the damage to walls and floor, and further called upon them to remove the unauthorised construction and restore the suit premises to its original condition. Inasmuch as the main factual controversy in those appeals relate to the nature of the construction alleged to have been made by the tenant, it is relevant to set out what was stated in that letter. It was, inter alia, stated that the tenant had unauthorisedly committed several breaches of the terms and conditions of the lease inasmuch as the tenant had erected unauthorised construction of a permanent nature and carried out additions to the demised premises without the consent of the lessor or the receiver. It was further alleged that in breach of the terms and conditions of the agreement of tenancy and without the consent of the lessor or the receiver, the tenant had occupied portion of the land not let out to him by obstructing the lessor and the person entitled to use the same and had made construction on the roadway by obstructing and restricting the passage. It was further alleged that the tenant had unauthorisedly and without permission dug up and mutilated the floors of the premises let out to the tenant and had constructed contrary to the provisions of S. 108(o) of the Transfer of Property Act, 1882. The tenant was called upon to remove the said unauthorised structures and restore the property, and it was further notified that failing which the landlord would be compelled to take proceedings.

5. A reply to the said notice issued by the Court Receiver was sent on 8th December, 1958 from the respondent companys advocate saying that the construction complained of had taken place with the consent and full knowledge of the appellant and the respondent company had spent thousands of rupees towards the improvement of the suit premises. Further in reply to the allegation of damage to the property, the respondent company had alleged that it had in fact improved the property of the appellant. On or about 20th December, 1958, the advocate for the appellant replied to the above letter once again calling upon the respondent company to vacate the demised premises.

6. In 1959, the standard rent appli