The term "appurtenant" in section 5(8)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has to be construed in its secondary, non-technical sense such as "usually enjoyed with".

JUDGMENT - S.C. PARATAP, J.:---Arising for determination in this appeal by the original plaintiffs is a question of some importance under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter the Act).

2. Since the year 1950 or so the defendant (respondent) herein has been plaintiff's tenant of room No. 18 on the first floor of a building known as Morarji Gokuldas Deoji Trust Building situated at Kennedy Bridge in the City of Bombay. In or about October 1968, the defendant purchased a car which he commenced parking in the open space of the compound of the said building. The plaintiffs objected. As many as three notices were issued to remove the car from the said compound and cease packing it there. The defendant did not comply nor did he reply to any of these notices. The plaintiffs thereupon filed the instant suit for a declaration that the defendant, by parking his car in the compound, was committing trespass and for permanent injunction restraining him from doing so. The defendant raised two defences viz., (a) he was parking the car under express permission from one of the trustees; and (b) in any event, he had, under the Act, a statutory right to do so. The trial Court negatived both these defences, held the defendant's action to constitute a trespass and decreed the suit.

3. The defendant appealed to this Court. At the hearing, the trial Court's finding that the defendant had failed to prove permission to park was not challenged. The learned Single Judge hearing the appeal, however, held that the ground floor one space in the compound of the building was "appurtenant" to the leased room on the first floor within the meaning of section 5(8)(b) of the Act and, therefore, "premises" as defined therein. It was also held that parking car was an essential service within the meaning of section 24(1) of the Act and the plaintiffs, therefore, cannot cut off or withhold the same. The defendant was consequently held to have a statutory right to park his car without any permission from the plaintiffs. The appeal was thus allowed, the trial Court's decree was set aside and the suit dismissed. Hence, this appeal therefrom under the Letters Patent.

4. The plaintiff's are represented by their learned Counsel Mr. K.J., Abhyankar. The defendant, though served, has not chosen to appear.

5. Hearing the learned Counsel Mr. Abhyankar and going through the impugned judgment and the relevant provisions of the Act, we find ourselves unable to agree with the reasoning and conclusion reached by the learned Single Judge. The question first arising for determination is:

Is the open space on the ground floor in the compound of the suit building "appurtenant" to the leased premises viz., the room on the first floor within the meaning of section 5(8)(b) of the Act ?

To the extent relevant, the said provisions runs thus :

"premises" means-

... ... ... ...

(b) any building or part of a building let or given on licence separately (other than a farm building) including-

(i) the garden, grounds, garages and out-houses, if any, appurtenant to such building or part of a building.

... ... ... ..."

Now, though one wishes that on the question here the law was certain and succinct, it would, in the very nature of things, not be possible to formulate a precise and singular test or a principle of universal application for determining what is appurtenant. The diversity and the indeterminate nature of the term "appurtenant" and the colour, form and shape it can take from case to case can be very interesting indeed. It is a term of variable import, scope and ambit. There can, therefore, be no fixed, invariable or straitjacket approach or formula in this regard. Besides, whether a thing is appurtenant and if so, to what extent, would be a mixed question of fact and law. The resultant answer must, in each case, turn and depend upon the facts and circumstances, of that case and the context in which the question arises. Nevertheless a look at the standard refe

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