Civil Revision Application No. 419 of 2004. Case: Gheewala Shankerlal Mafatlal Vs Gheewala Chandrakantbhai Valjibhai (deceased by LRs.). High Court of Gujarat (India)
| Case Number | Civil Revision Application No. 419 of 2004 |
| Counsel | For Petitioner: Mehul Sharad Shah, Adv. and For Respondents: Bharat Jani, Adv. |
| Judges | N. V. Anjaria, J. |
| Issue | Bombay Rents, Hotel and Lodging House Rates (Control) Act (57 of 1947) - Section 13(1)(b) |
| Citation | AIR 2013 Guj 286 |
| Judgement Date | July 19, 2013 |
| Court | High Court of Gujarat (India) |
Judgment:
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Aggrieved applicant is the original landlord. He is aggrieved because of the fact that he earned decree of eviction against the tenant before the Trial Court under Section 13(1)(e) of the Act, however, the said decree came to be erased by the lower Appellate Court.
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Therefore, the applicant has challenged the judgment and order dated 15th September, 2004 of learned Joint District Judge, 3rd Fast Track Court, Patan being Regular Civil Appeal No.74 of 2002 (Old No.59 of 1999), by filing the present Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').
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Gathering the relevant facts at the outset, the applicant herein instituted Regular Civil Suit No.28 of 1992 before the Court of learned 2nd Joint Civil Judge (J.D.), Patan seeking decree of eviction on the grounds of arrears of rent as well as on the ground that tenant had put up permanent construction in the premises without his permission. The ground of erecting permanent structure under Sec. 13(1)(b) of the Act was the only ground survived before both the Courts below.
3.1. It was the case of the plaintiff-landlord in the plaint that house bearing No.4/2/34/1 owned by him situated in the Shalviwada-Gheewala street in the town of Patan was rented to the defendant. Amongst the conditions of the tenancy, it was also a condition that the tenant shall not undertake any construction in the premises without permission of the landlord. It was the case that initially the defendant-tenant wanted to put up door on the North-West side of the house and construct a latrine. For that he had sought permission from the Nagar Palika to construct latrine on the Otta on the North-West side of the premises, which was not granted by the Nagar Palika. It was further stated by the plaintiff that thereafter the tenant proceeded to construct latrine on the South-West corner of the property by destroying part of the wall to place a door therein and construct a latrine inside the room. It was, therefore, contended by the landlord that he had incurred liability of eviction.
3.2. By filing written statement at Exhibit 11, suit was contested by the tenant inter alia contending that construction was not of a permanent nature and that it was made under the World Bank Scheme. It was denied that thereby the landlord was entitled to get the possession of the premises on that ground.
3.3. From the facts on record, it came out that suit premises rented to the defendant comprised of two rooms. In that house, the main door was on the Northern side whereas other door had an opening on back side facing the South. It was the case of the landlord that in the South-West wall, another door was placed to provide entry therefrom to the latrine constructed by erecting a partition wall inside the room.
3.4. The Trial Court, in its judgment noted the kind and nature of construction with elaboration. It recorded on the basis of evidence on record before it that latrine was made by installing partition wall with use of bricks and was cemented. It was observed that from the photographs (Exh.61, 66 and 67) proved by Exhibit 68, it was demonstrated that a new door was put up. Upon the appreciation of testimonial evidence of plaintiff himself, who examined himself at Exhibit 63, and one Manharbhai Laljibhai, employee of Municipality, who deposed at Exhibit 44, and considering the panchnama (Exh.45) of the place as well as direction available from the photographs, the Court recorded that back side of the wall was removed in part and wooden framed door was fitted therein. It was noted that two-and-half feet portion of the wall was removed and thereby entry was provided to the latrine. Again the latrine was constructed by dividing one of the only two rooms of the premises. The lower Appellate Court took view that conclusion of the Trial Court that the construction would weaken the wall was not justified and further that it was not of a nature which would seriously damage the premises at the time of removal. It, therefore, held that construction was not one which could be characterised as permanent one.
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Heard learned advocate Mr.Mehul Sharad Shah for the applicant-landlord and learned advocate Ms.Mohini Bhavsar for learned advocate Mr.Bharat Jani for the respondent.
4.1. Learned advocate for the applicant submitted that the very nature of construction was such that it was of permanent kind. He submitted that when Southern side wall was broken and a latrine was constructed with use of cement and bricks, the only conclusion, as rightly reached by the Trial Court, was that it fell within the ambit of Section...
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