The erection of a wall to provide privacy to a person bathing, without any foundation and without causing any damage to the premises, does not amount to a permanent structure within the meaning of section 13(1)(b) of the Bombay Rent Act, 1947.

JUDGMENT - R.D. TULPULE, J.:---This petition raises as is not uncommon, one of the vexed questions arising under the Bombay Rent Act, as to whether a particular work carried out by a tenant is a permanent structure within the meaning of Clause (b) of section 13, sub-section (1) which entitles a landlord to recover possession of premises where a tenant erects on the premises any permanent structure without the landlords consent given in writing. In the present case, it is nobodys case that the landlord had given his consent in writing to the work which was carried out. The only question is, whether the work which was done by the defendant-tenant, was an erection of a permanent structure or was as he calls it, a repair and something amounting to an improvement or in the nature of an improvement if at all.

2. The suit was filed by the landlord to recover possession from the petitioner-tenant on a number of grounds including that the landlord required the premises for his bona fide personal occupation. The only ground which succeeded in the Court however was the ground that the petitioner-tenant had erected a permanent structure, namely, a bathroom in the premises.

3. The view which the trial Court took of the work which was carried out by the petitioner-tenant, was that, it amounted to a new work considering that the work took about four days, it could not be treated as repairs. Considering the amount of expenses involved also, it was of the opinion, that the work amounted to a new permanent construction. It felt that this would involve also, some damage to the premises of the landlord. It was not artistic work that may be made for the purposes of beneficial and better enjoyment of the premises. He was of the view that it was a permanent construction "causing serious damage to the premises." He, therefore, held, that the plaintiff was entitled to possession.

4. This decree was affirmed by the Assistant Judge who heard the appeal before whom that seems to have been the only contention or question which was raised. He did not deal with the evidence as such, but observed that what the defendant had done was, "to carry out permanent unauthorised alterations in the suit premises, by constructing a bathroom." Considering the expenses which must have been incurred, he felt that the only inference which flowed from that circumstances was that, "unauthorised alterations of a permanent nature" were carried out by the petitioner tenant.

5. The evidence which was led before the trial Court, consisted of the evidence of the landlord, Mohamed a mason who carried out the work and the defendant-petitioner. Besides, the landlords notice as also the notice given by the petitioner to effect repairs were produced. A few photographs which were taken out on the 18th April when the work was actually in progress, were also produced. On the basis of this evidence, it was sought to be contended in the trial Court, that the petitioner-tenant has constructed a new bathroom, that he has removed the pavement or flooring consisting of ladies (Shahabad stone flooring) which was in good condition and replaced them. The permanent structure which was, therefore, erected according to the landlord, was the erection of a bathroom, the removal of the pavement which was already existing and replacing it by a new pavement. This was so alleged in the plaint also.

6. Now, as to what exactly the work which was carried out and the extent of the work and in what way, it was the erection of a permanent structure has not been specifically found by both the courts below. They have proceeded to describe the work carried out as a bathroom. It would, however be a misnomer to describe what has been done by the petitioner in the present case as erecting a permanent structure of a bathroom.

7. It is not disputed that in the premises which were let to the tenant, there existed what is described as a sink or a mori. As to the exact dimension of the mori or sink before its alteration an

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