2010 Supreme(Bom) 703

2011(5) ALL MR 215
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. OKA, J.
A-1 Engineering Works & Ors.
Vs.
Rajendra Kasturchand Vora & Ors.
Writ Petition No. 1223 of 1992 & Writ Petition No. 5266 of 1993
Decided On: 7th May, 2010.

Headnote:Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13(1)(b)-Constitution of India, Articles 226 and 227-Suit for Eviction of tenant-Issue of permanent construction-Concurrent finding of fact recorded by Court below on said issue-Not suffers from any perversity or infirmity -Warrants no interference in exercise of writ jurisdiction. 1995 (3) Bom CR 327- Relied on.-After amendment was carried out to the plaint during the pendency of the appeal, the appellate Court permitted parties to adduce evidence before the trial Court and the said Court was ordered to record a finding on the issue a permanent construction. After detailed consideration of evidence, the trial Court held that the construction was of permanent nature. The appellate Court after consideration of the entire evidence has confirmed the said finding. The appellate Court held that the fact that the structure erected in the suit premises can be removed is not an invariable test. The appellate Court observed that it was admitted by the defendants that the structure of platform has been made by using steel members and office cabin has been fixed by screws and nuts and bolt to the ceiling of the suit premises. The appellate Court found that the expert examined by the defendants admitted that the platform cannot be dismantled without use of a gas cutter. The Court found that the witness admitted that the vertical members will have to the removed by digging the floor. The appellate Court observed that the intention of the defendant was to enjoy the structure permanently and the nature of the structure was such that it substantially changes the character of the suit premises. The appellate Court observed that the defendants have not adduced evidence to show that the use of office cabin was absolutely essential for them. In short, the appellate Court held that the structure has been erected with the intention of using it permanently and that the same brings about a complete change in the structure of the suit premises. The appellate Court extensively referred to the reports submitted by experts appointed by both the parties. The appellate Court observed that the photographs which are admitted in evidence show that concrete foundation has been taken for vertical members. The appellate Court has minutely examined the reports and the evidence of experts examined by both the parties. After having considered the pleadings and evidence on record and the reports of the experts, it is not possible to find fault with the concurrent findings of fact recorded by the Courts below on the issue of permanent construction. The said findings of fact cannot interferred in writ jurisdiction.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13(1)(9)-Constitution of India, Articles 226 and 227-Eviction of tenant-Sought by landlord-Bona fide need of landlords-Landlords having got workshop at another place-Tenants having no other place to go-Landlords constructed new premises and let out to other-Lower Court negated bona fide need of landlords-Finding of facts recorded by Courts below warrants no interference -Writ petition dismissed.-By amending the plant, a contention was raised that the plaintiffs are running an engineering unit in a rented premises at Shukrawar Peth at Pune where the number of machines have been installed and about 15 or 16 persons have been employed. It was contended that the landlord of the plaintiffs has obtained a decree for possession in respect of the said premises and a writ petition filed by the plaintiffs in the Court for challenging the decree for possession was pending for final hearing. It was contended that if the petition is dismissed, the plaintiffs will have no place for their manufacturing process. However, both the Courts noted the admitted position that the plaintiffs were also having a workshop at Gultekdi, Pune. In fact the finding of the trial Court which is confirmed by the appellate Court is that one of the plaintiffs admitted in evidence that during the pendency of the suit, he constructed first and second floor on his own property and has let out the same to one Mr. Shah. The Court found that the construction of the said floors was for industrial use and the area of each floor was 2200 sq.ft. Apart from construction of two additional floors, two more rooms were constructed on the ground floor adjacent to the suit premises and admittedly the said rooms were not let out. The trial Court observed that decree for possession was passed in respect of the premises of the plaintiffs in Shukrawar Peth Pune in the year 1980. It was observed that through the said ground was available at the time of institution of the suit, it was taken during the pendency of appeal. Moreover, it was observed that the petition in the High Court was not disposed of. The aforesaid findings of fact recorded by the trial Court after remand have been affirmed by the appellate Court. The action of the plaintiffs of letting out newly constructed first and second floors to a tenant during the pendency of the suit defeats the plea of bona fide requirement and hence it is not possible to interfere with the findings of fact recorded by the Courts below on the said issue. Hence, there is no merit in the petition filed by the plaintiffs.