G.S. Kulkarni, J.

1. This is a petition of a tenant who though succeeded before the trial court in view of the dismissal of the eviction suit (Regular Civil Suit No. 23 of 1994), instituted against him by the landlord, now suffers an eviction decree, in view of the appellate court, decreeing the landlord's suit, by the impugned judgment dated 21 April 1998. During the pendency of the proceedings the petitioner tenant has expired. This Writ Petition is thus being pursued by his legal heirs and representatives.

2. In nutshell the facts are:

The respondent is the landlord of house bearing No. 208(1) situated at Malvan (suit premises). The petitioner-Janardan was a tenant of the suit premises at a monthly rent of Rs. 50/-.

The tenancy was created sometime in the year 1963. It is not in dispute that the suit premises had become quite old. In the month of January, 1994, father of the respondent had visited the suit premises and found that there is newly constructed septic tank in the suit premises. In the inquiry, it was revealed that the petitioner tenant had not only undertaken construction of a septic tank as well as latrine of a permanent nature, constructed in the living room of the suit premises. This construction was undertaken sometime in the month of November, 1993.

3. The respondent inter alia on the assertion that the tenant had no right and authority to undertake such construction of a permanent nature, without the permission of the respondent landlord which resulted into the tenancy rights of the petitioner having extinguished, as per Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'the Bombay Rent Act'), instituted Regular Civil Suit No. 23 of 1994 before the Civil Judge, Junior Division, Malvan.

4. The petitioner appeared in the suit and resisted the same by filing his written statement. The case of the petitioner in the written statement was that the suit premises were about 100 years old. He contended that in the year 1989 Malwan Municipality had given directions to the respondent landlord as also the petitioner for conversion of basket latrine into septic latrine. He further contended that in November 1986, one Rajaram Shirodkar, a power of attorney holder of the respondent had executed an affidavit in favour of the petitioner, authorising him to construct a new septic latrine and to deduct the expenditure from the rent. The petitioner contended that on 8 December 1993 he had suffered a severe heart attack and was hospitalised for the said illness. On his discharge from the hospital he was advised three months bed rest.

The petitioner's case was that as old latrine was at a distance of about 60 meters away from the suit premises, the doctor had advised him not to attend such latrine but to arrange new latrine in the suit premises. The defendant further pleaded that as the roof and beam of the suit premises had become old, for protection of the same, he had undertaken construction of new wall without foundation admeasuring 4 ft. in length, 3½ ft. in breadth and 6½ ft. in height and thereafter he undertook construction of latrine of a temporary nature. He pleaded that the construction of the latrine as undertaken was not of permanent nature so as to extinguish his tenancy rights as Section 13(1)(b) of the Bombay Rent Act would provide. The petitioner accordingly contended that the respondent is not entitled to recover possession of the suit premises on the alleged ground under Section 13(1)(b) of the Bombay Rent Act.

5. The learned Trial Judge considering the rival pleas, by his judgment and order dated 23 July 1996 dismissed the respondent's suit. The learned trial Judge accepted the case of the petitioner that the latrine though was installed in the living room, taking advantage of the support wall and the original wall of the suit house and though it had installation of wooden door from the front side, nonetheless it was a temporary latrine. The learned trial Ju