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Gujarat High Court
Judgename :R.S.GARG
MAYANKKUMAR DHANSUKHLAL - Appellant
Versus
C.RAJNIKANT and CO. - Respondent
Civil Revision Application 1692 of 1996
Decided On : 08/18/2005
Bombay Rents, Hotel and Lodging Rates Control Act, 1947 – Sections 13 (1) (k) and 29 – Transfer of Property Act, 1882 – Section-108 (o) – Galiyari land – Eviction – seeking eviction of the opponents on the grounds described in the plaint. It was the case of the plaintiff that the defendants have committed an act contrary to the provisions of Clause- (o) of Section-108 of the Transfer of Property Act, 1882 i. e. he has changed the user of the premises, that without consent in writing by the landlord, he has erected certain permanent structures on the premises and that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The plaintiff submitted before the Court that the premises were let out somewhere in the year 1929 to the father of the defendant for carrying on business of cotton brokerage, but, somewhere in the year 1971, he had changed the user and thereafter, he was carrying on the business of electrical goods – Applicant submitted that Appellate Judge, without appreciating legal provisions and without even appreciating the law laid down by this Court and the Supreme Court, simply observed that `pacca constructions made by the tenant if are removed, then, no serious damage would be caused to the demised premises. He submits that the findings are patently perverse and show absolute and utter non-application of mind. His submission is that nature of the construction should be decisive of the seriousness of the matter and on that basis, the Court should decide that if such constructions are removed, whether serious damage would be occasioned to the property – The ground available to the landlord under Section-13 (1) (a) was not pressed before this Court – Held, opinion of this Court, went wrong and did not read the facts available on the record. The landlord came with a specific case that the construction made by the tenant was brought to his notice for the first time under Exh. 64 vide Notice dated 16th May, 1978 issued by the Assessment Officer of Surat Municipal Corporation. Once the landlord says that he learnt about the construction at a later stage, then, it may not be presumed that he had given up his right to challenge the acts of the tenant. The learned Appellate Judge was absolutely perverse in his approach, so also in recording the findings that the landlord had waived his right and the suit of the plaintiff is barred under the principles of estoppels – Did not try to appreciate the distinction between the construction, which is in the nature of permanent structure, and any other construction, which is in the nature of alterations. He failed to appreciate that any permanent structure, which is made inside or outside the suit premises, if is removed, then, it would always cause serious damage to the premises. In any case, the landlord, in the opinion of this Court, has proved to the satisfaction of the Court that the constructions made by the tenant were permanent structures and if the same are removed, those would cause serious damage to the premises – Judgement and decree passed by the first Appellate Court are set aside and those of the trial Court are restored – Order accordingly. (Paras 25 to 28)
( 2 ) THE facts necessary for disposal of the present revision application are that the present applicant-plaintiff filed a suit seeking eviction of the opponents on the grounds described in the plaint. It was the case of the plaintiff that the defendants have committed an act contrary to the provisions of Clause- (o) of Section-108 of the Transfer of Property Act, 1882 i. e. he has changed the user of the premises, that without consent in writing by the landlord, he has erected certain permanent structures on the premises and that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The plaintiff submitted before the Court that the premises were let out somewhere in the year 1929 to the father of the defendant for carrying on business of cotton brokerage, but, somewhere in the year 1971, he had changed the user and thereafter, he was carrying on the business of electrical goods. It was also submitted that extensive damage has been caused to the property and permanent structures have been raised by the defendants. The description of the permanent structures raised and the damage occasioned to the property were also detailed in the plaint. For Clause- (k) of Section-13 (1) of the Rent Act, though certain pleadings were made, but, no serious efforts were made to prove the same. (1) After service of summons, the defendants appeared before the Court and submitted that after the death of his father, he changed his business of cotton brokerage into one of electrical goods. He admitted that certain changes in the premises have been made, but, he denied that those were of permanent nature. He, however, also pleaded that if such `pacca constructions are removed by him, no serious damage would be caused to the property, therefore, he is protected under the explanation appended to Section-13 (1) of the Rent Act. For Clause- (k), it was submitted that he had been using the premises for business purposes and as such, the allegation of non-user was also contrary to the facts. (2) It appears that during the pendency of the suit, a Court Commissioner was appointed, who inspected the premises and submitted his report before the Court. The Commissioner agreed with the allegations made by the plaintiff and submitted to the Court that extensive constructions have been made, including raising of the boundary wall, construction of the room, shifting of the stair-case from one room to another room, removal of the wooden door and windows, replacement of the same by iron shutters and glass panels. He also observed that the defendants had covered the "galiyari" land by raising certain structures and had also covered the same. He also found that a small business premises have been converted into a big show-room and with the help and assistance of iron and plastic sheets, he has made a room at the back side, which was being used by the tenant as a workshop. (3) The learned trial Court, after hearing the parties, found that the defendants were liable to be evicted under Section-13 (1) (a) on the ground of change of user and secondly, on the ground of raising constructions without permission of the landlord. (4) Being aggrieved by the said findings and the judgement, so also the order of eviction, the tenant preferred an appeal, which came to be allowed, therefore, the landlord is before this Court.
( 3 ) LEARNED Counsel for the applicant, after taking me through the judgement of the learned first Appellate Court, submitte
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