ORDER :- By this petition filed under Article 227 of the Constitution of India, the petitioner-tenant is challenging the legality of the judgment dated June 29, 1976 passed by the Joint Judge, Poona, confirming the decree of eviction dated Jan. 30, 1974 passed by the Additional Judge of the Small Causes Court at Poona.

2. The respondent is the owner of House No. 768, Budhwar Peth. Poona, and the residential premises on the second floor of this house are let out to the petitioner. The landlord is in occupation of the first floor, just below the premises occupied by the petitioner. The landlord instituted suit for recovery of possession on Nov. 13, 1972 in the Court of Small Causes at Poona under S.13 (1) (a) and (b) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act"). The gravamen of the allegation made by the landlord is that the petitioner has constructed a kitchen platform in the premises let out to him without prior permission of the respondent, given in writing, and such construction has resulted into damage or waste to the building. It is not in dispute that the petitioner has constructed a kitchen platform admeasuring 2 ½ ' in height, 3' in length and 1 ½ ' in breadth in the demised premises. The respondent claims that due to the weight of the kitchen platform, the patai (wooden plank) of the premises below the platform fell down in the last week of October 1972. It is also claimed that Shahabad pavement of the ceiling in the premises of the landlord was also damaged to some extent.

3. The suit was resisted by the petitioner, inter alia, claiming that the kitchen platform was constructed 6 to 7 years prior to the institution of the suit. The petitioner admitted that no written consent was obtained prior to the construction, but submitted that the construction of the kitchen platform does not amount to a permanent structure attracting the provisions of S.13 (1) (b) of the Act. The petitioner denied that the patai gave way due to the weight of the ota, but claimed that the water from the Mori near the platform used to leak and that has resulted into the patai giving way. On these pleadings, the parties went to the trial and the trial Court, after recording the evidence, came to the conclusion that the construction of the kitchen platform is not a permanent structure and the landlord would not be entitled to a decree of eviction on that ground. The trial Court held that the claim of the petitioner that the patai fell down because of the water leaking through the mori is false and the construction of the kitchen platform did result into damage in the plaintiff's property and the respondent is entitled to decree of eviction on that count. In appeal carried before the District Court, Poona, the learned Joint Judge confirmed the decree of eviction both on the ground that the construction of kitchen platform amounts to the erection of a permanent structure and such construction was an act contrary to the provisions of cl. (o) of S. 108 of the T. P. Act. 1882. The judgments of the two Courts below are under challenge in this petition.

4. Shri Abhyankar, the learned counsel appearing in support of the petition, submitted that the view taken by the lower appellate Court that the construction of kitchen platform amounts to erection of a permanent structure is entirely incorrect. Section 13 (1) (b) of the Act provides that a landlord shall be entitled to recover possession if the Court is satisfied that the tenant has without the landlord's consent, given in writing, erected on the premises any permanent structure. It is not in dispute that the tenant had not secured prior consent in writing before constructing the kitchen platform. The question which arises for determination is whether the construction of the kitchen platform amounts to a permanent structure. The question whether the structure is of a permanent character or not must depend upon the facts of every case. There can b

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