JUDGMENT - S.K. DESAI, J.:---The writ petitioners are the owners of a property called Nesbit Hall situated at Nesbit Road, Mazgaon, Bombay. The respondent is a tenant inducted in September 1960 under an express agreement of lease. In 1966 the landlords filed R.A.E. R. Suit No. 105/1002 of 1966 claiming from the tenant (respondent before me) possession of the suit premises on several grounds as stated in the plaint. These grounds are summarised in para 8 of the plaint. I will only indicate the four grounds urged before me in the Writ Petition since the landlords who succeeded in the trial Court failed in the appeal.

2. Aggrieved by the decision of the Appellate Bench of the Small Causes Court allowing the tenant's appeal, the landlords (original trustees) have filed the writ petition.

3. The grounds on which eviction of the tenant was sought and the possession of the premises claimed are as under :---

(a) That the tenant had committed breaches of the terms and conditions of tenancy.

(b) That the tenant had erected a permanent structure in the suit premises in breach of the provisions of section 13(1)(b) of the Bombay Rent Act.

(c) That the defendant-tenant had committed nuisance.

(d) That the defendant-tenant was in arrears of rent for more than six months and had failed and neglected to pay the same inspite of a demand in that behalf.

Needless to say the averment in the plaint were traversed by the defendant in his written statement. Necessary evidence was led on various aspects of the matter before the trial Court and the trial Court upheld the landlord's contentions on the ground that the tenant had erected permanent construction and the landlords were accordingly entitled to evict the tenant from the portion demised to it.

4. As far as the ground of arrears of rent was concerned, it is the admitted position that the tenant had not paid up the arrears claimed within one month of receipt of the landlord's notice but had immediately deposited all the arrears in the Court after the filing of the suit. As far as this grounds is concerned on the factual findings as found by the Court of Small Causes prima facie the case would seem to be governed by the Supreme Court decision in (Harbanslal Jagmohandas and another v. Prabhudas Shivlal)1, A.I.R. 1976 S.C. 2005. However, Mr. Tunara who appeared on behalf of the appellant-tenant before the Appellate. Bench submitted that the case was not covered by the provisions of section 12(3)(a) but by the provisions of section 12(3)(b) of the Rent Act and if it is so, the entire basis of the approach in Harbanslal's case and the subsequent decisions would not be applicable to the present case. It appears to be the admitted position that if section 12(3)(b) were to apply and not 12(3)(a) then the tenant had complied with the requirements of the said section as presently construed by the Courts.

5. The Appellate Court allowed the appeal of the tenant holding (a) that the so-called permanent construction, namely, the wall could not be regarded as one and (b) that on the evidence led on the point and on the probabilities, the wall was likely to have been constructed by the landlords at or before the time of the commencement of the present tenancy. I propose to deal with the question of nuisance and permanent construction at the outset.

6. The claim of nuisance as alleged in the plaint was expressly dropped in the trial Court but an attempt was made by Mr. Dalvi to resurrect the same before me in view of the decision of the learned Single Judge of this Court in (Gulam Husain Mirza v. Laxmidas Premji and another)2, 1984 Mh.L.J. 215. This is totally a new aspect of the matter which cannot be permitted to be raised after the plea on the point of nuisance was expressly dropped. The nuisance as now urged before me is different from what was pleaded and the contention seems to be that if the tenant trespasses upon or attempts to trespass upon or obstruct the landlord in enjoyment of any premises or part of premi

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