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1998 Supreme(Guj) 443
Gujarat High Court
Judgename :D.C.Srivastava
Hari Thakurdas Laungani - Appellant
Versus
Hemu Fatehchand Jivrajani - Respondent
C.R.A. 1920 of 1996
Decided On : 08/14/1998
Headnote:(a) Bombay Rent Hotel Lodging House Rates (Control) Act, 1947 - Sec. 13(1)(b) - Sweetwill - Tenant admitted that alteration were made with the sweetwill of the landlord - No written permission obtained for construction of permanent nature - The word `sweetwill has no place under Sec. 13(1)(b) - Finding of fact regarding construction - No interference in revision.
In the written statement the defendant pleaded that whatever alterations were made they were made with the sweet will of the landlord. This implies that the tenant admitted to have made alterations. He further admitted in this way that the alterations were made with the sweet will of the landlord. The word "sweet will" has no place under Sec. 13 (1) (b) of the Act. On the other hand this section obliges the tenant to obtain landlords consent in writing before making alterations or structures of permanent nature. There is no written permission from the landlord in the instant case. It is also nobodys case that those constructions have been made by the landlord or by some outsider. The findings of fact recorded by the two Courts below based on the evidence on record and also after considering the report of the Commissioner cannot be disturbed in this revision.
[Para 18]
(b) Words & Phrases - Permanent construction or temporary construction - Construction which is not easily removed without causing damages to the main accommodation is construction of permanent nature.
Whether the construction is a permanent construction or temporary, the nature of construction is to be kept in mind. It has also to be kept in mind whether such construction can easily be removed without causing damage to the tenanted accommodation. Thus, the test of removability in easy manner or the disputed alterations is the main test on which it is to be decided whether the construction is temporary or permanent. The test of removability per se is not enough because one can say that even the room constructed of bricks, cement and having RCC slab can be removed and demolished. It has to be seen whether such removal would cause damage to the main accommodation. There is concurrent finding of the two Courts below and there is specific finding of the Trial Court that such construction is of permanent nature which can not be easily removed without causing damage to the main accommodation.
[Para 20]
(c) Civil Procedure Code, 1908 - Order 6 Rule 1 - Variance between the pleadings and proof - Evidence which is in variance with the pleading to be ignored and no finding can be given on such evidence - Without pleadings parties proceeded to trial on those issued and adduced evidence, cannot be challenge the question of absence of pleadings in appeal or revision.
If there is variance in the pleading and evidence, the evidence adduced by a party which is in variance with the pleading has to be ignored and no finding can be based on such evidence.
[Para 21]
If inspite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in Appeal or Revision.
[Para 25]
(d) Pleading & Evidence - No specific pleading about construction of two room and otala - Defendant admitted construction - Parties knew the case and adduced evidence - Mere no pleading of construction of two rooms and otala - Not fatal.
If it was not specifically pleaded that two rooms and otala have been constructed it cannot be said that there was nopleading that the tenant has raised permanent structure without written permission of the landlord. Since allegations constituting requisite requirements of Sec. 13(1)(b) of the Act were already there and a specific Issue No. 2-D was framed by the Trial Court, though at a belated stage, parties fully knew their case and the defendant respondent cannot be said to have been prejudiced in any manner.
[Para 27]
( 1 ) THIS is landlords revision under Sec. 29 (2) of the Bombay Rent act.
( 2 ) THE facts giving rise to this revision are as under : the revisionist filed Civil Suit No. 170 of 1984 for eviction of the respondent. Another Suit No. 132 of 1983 was also filed by the plaintiff - revisionist against the respondent for permanent injunction restraining the defendants from preventing the entry of the plaintiff interear Court yard on the ground floor. Another Civil Misc. Application no. 443 of 1983 was also filed by the plaintiff landlord seeking decision of the Court as to who is tenant in the premises.
( 3 ) WHEN the Trial Court does not apply its mind to marshalling the facts and remains careless in going through the pleadings while framing issues, issues have to be recasted time and again. This is what happened in the eviction Suit No. 170 of 1984.
( 4 ) THE grounds for eviction in the said suit were many, but issues were framed in instalments. At first only four issues were framed in which only two issues were material, viz. , whether the relationship of landlord and tenant subsists between the parties and whether the tenant created nuisance or annoyance to the landlord in the suit premises.
( 5 ) ON 10. 9. 1987 issues were recasted by deleting issue No. 2, issue No. 2-A was wholly redudant which can be covered in the ground of nuisance. Issue No. 2-B was likewise redudant so also issue No. 2-C and all these allegations could be considered under Issue No. 2.
( 6 ) ON 5. 1. 1990 Issue No. 2-D was added to the effect whether the defendant constructed permanent structure in the suit premises without the permission of the plaintiff.
( 7 ) THE suits and applications were resisted by the tenant. In the eviction suit, with which this revision is primarily concerned, the Trial Court found that the relationship of landlord and tenant subsisted between the parties. It further found that the landlord failed to establish allegation of nuisance or annoyance to him at the instance of the tenant respondent. Issue Nos. 2-A to 2-C were subsequently deleted which further exhibits non- application of mind by the Trial Court while framing and re-casting issues. The Trial court on recasted issue No. 2-D found that the tenant constructed permanent structure without permission of the plaintiff Accordingly the suit for eviction was decreed.
( 8 ) THE tenant preferred an Appeal which was allowed by the lower Appellate Court. The Decree for tenants possession was re versed and set aside by the lower Appellate court. Hence this revision.
( 9 ) THE only point argued by the learned Counsel for the landlord revisionist was that there is Concurrent finding recorded by the two Courts below that the tenant respondent has made permanent structure in the suit accommodation without written permission of the landlord. The appellate Court on such finding, according to the learned Counsel for the revisionist, could not have reversed the decree for possession taking shelter behind the reasoning that since there is variance between pleadings of the plaintiff and his evidence regarding permanent structure the suit for eviction can be dismissed.
( 10 ) THE learned counsel for the respondent, on the other hand, contended that in the plaint it was not specifically averred what was permanent structure raised by the tenant and also place where such structure was raised and sicne Issue on this point was framed at a very late stage when the evidence was to being the defendant respondent was seriously prejudiced and was prevented from adducing proper evidence. He further contended that in case there is variance between pleadings and proof the decree of the Trial Court become illegal hence it was and correctly reversed by the Appellate Court, and as such no interference in this revision is required. He also filed English translation of depositions of the plaintiff and the defendant. He referred to the statement and tried to convince the revisional Court tha
