ORDER :- This is a tenant's Special Civil Application under Art.227 of the Constitution directed against the judgment and the decree parsed by the Joint Judge, Thana, on January 18, 1972, under S.13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, read with S.108(o) of the Transfer of Property Act, 1882.

2. The learned Civil Judge, Senior Division, Thana, held in the suit for eviction, filed by the landlord in his judgrnent and decree, dated March 31, 1970, that the tenant had removed an old beam ridden with termite and refixed a new one; and this would not be an act contrary to the provisions of Clause (o) of S.108 of the Transfer of Property Act; and, therefore, dismissed the plaintiff's suit.

3. The learned Joint Judge reversed that decision holding :-

"The act of the defendant in removing the old beam from its place was nothing but destructive or permanently injurious to the suit premises, irrespective of the fact whether actual damage was caused to the building or not. There is also some evidence of damage caused to the plaintiff's house. I, therefore, feel that the defendant's act of removing the old beam from its place was contrary to the provisions of S.108(o) of the Transfer of Property Act and defendant was liable to be evicted from the suit premises on that ground."

The learned Joint Judge misconceived the law under S.13(1)(a) of the Bombay Rent Act and S.108(o) of the Transfer of Property Act. The said provisions are as under :-

"S.13(1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(a) that the tenant has committed any act contrary to the provisions of clause (o) of S.108 of the Transfer of Property Act, 1882;

X X X X X X

S.108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-

* * * *

(o) The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto."

It is clear that Clause (o) of S.108 requires the tenant to use the property as a person of ordinary prudence would use and not to use it for a purpose other than that for which it was leased. It is only when the Court is satisfied that the tenant has committed any act contrary to the provisions of S.108(o), that the Court has jurisdiction to pass a decree for possession in favour of the landlord under S.13(1)(a).

4. I do not think that if a termite affected beam is replaced with a new one and is removed, it can be said to be an act of imprudence on the part of the tenant. By no stretch of words, can it be said that removing such a old and hazardous beam and putting a new beam is an act contrary to provisions of Cl.(o) of S.108 of the Transfer of Property Act, 1882.

5. Further it is well settled that a test that has to be applied for deciding whether there is a contravention of provisions of S.108(o) is what was the tenant doing ? See an unreported decision in Civil Revn. Appln. No.431 of 1958, decided by Chagla C.J., on 16-7-1958 (Bom).

6. In Special Civil Appln. No.431 of 1966 decided on 23-8-1968 (Bom) V.S. Desai, J., discussed the effect of S.13(1)(a) of the Bombay Rent Act read with S.108(o) of the Transfer of Property Act as under:-

"S.13(1)(a) provides that if the tenant has committed any act contrary to the provisions of Clause (o) of S.108 of the Tran

Click Here to Read the rest of this document