Whether court can reject an application if there is non mentioning or wrong mentioning of provision in said application?

 Reliance of Adv. Kaptan on Challamane Huchha
Gowda v. M.R. Tirumala,(2004) 1 SCC 453, at page 459 (para
10) shows that it is a settled position of law that a mere non mentioning
or wrong mentioning of a provision in an application
is not a ground to reject an application. Since there was no bar
found in treating the objection (filed in the matter before Hon.
Apex Court) as an application for setting aside the sale, the
setting aside of sale by the execution court was held to be
perfectly in tune with the CPC. In AIR 1994 Bom 141Jagdish
Balwantrao Abhyankar and others v. State of Maharashtra and
others relied upon by the landlords Full Bench of this Court has
in para 21 taken the view that “ “21. Sometimes it does happen
that an application is filed under a particular provision of a statute
and it is found to be not maintainable thereunder or the Court or
Tribunal has no power to grant the relief asked for thereunder but
the said application is maintainable under some other provision of
the statute before the same Court or Tribunal and it has power to
grant the relief asked for, it is in such cases that it has always been

held that the "label" or the "nomenclature" of the application or
petition should not matter and after seeing the substance or
contents of the application, if it is possible to grant the relief under
some other provision of the statute, such a relief should not be
denied to a party. It is, however, material to note that such a
recourse is taken only when it is found that the relief asked for
cannot be granted under the provisions under which the
jurisdiction of the Court or Tribunal is invoked, much less when the
result would be to deprive the party of a right of appeal provided
against the order passed under such a provision.” 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6006 OF 2006
Dinesh Jagannath Khandelwal, Vs  Kundanlal s/o Perumal
Chhabriya, 

 Citation: 2010(2)ALLMR588, 2010(1)BomCR728
CORAM : B.P. DHARMADHIKARI, J.

DATED : JAN. 04, 2010.



1. In this petition under Articles 226 & 227 of the
Constitution of India, tenant has challenged the reversing
judgment dated 29/8/2006 delivered by Additional District
Judge, Nagpur in Regular Civil Appeal 301 of 2004. This
judgment in an appeal under Section 34 of Maharashtra Rent
Control Act, 1999 sets aside the judgment & decree dated
30/4/2004 dismissing Regular Civil Suit 165/2000 of
respondent/ landlord delivered by Additional Small Causes
Court, Nagpur, and orders petitioner tenant to hand over vacant
possession to him within 3 months. It also directs an inquiry
under O.20 R.12 pf Civil Procedure Code. On 18/4/2007 while
admitting the writ petition for final hearing, this Court has

stayed the operation & effect of the impugned appellate
judgment.
2. The Suit as filed on 14/6/2000 was having title as
under S. 24 of the Maharashtra Rent Control Act, 1999 ( Rent
Act for short). The tenant then filed an application for its
dismissal but landlord sought an amendment to the plaint and
sought eviction of tenant on the grounds like bona fide need and
nuisance etc. Tenant filed written statement disputing all factual
aspects. He pointed out that after the suit was filed, the lease
was further renewed on 2/9/2000 and suit itself became
infructuous. The renewal is alleged to be by an agreement &
memorandum of understanding entered into on 2/9/2000 for
executing the renewed lease with grievance that the landlord did
not remain present on 4/9/2000 before the Subregistrar
of the
documents for its due registration. The landlord has alleged that
there was no such understanding or an agreement for entering
into a renewed lease deed and the xerox copies placed on record
by tenant are forged. There are counter reports of hand writing

experts on landlord's signatures on these disputed documents but
then at this stage said controversy is not very relevant though
both the sides have argued in some details on it. The tenant filed
on 5/9/2000 an application at Exh. 17 for rejection of plaint but
it remained undecided by the Small Cause Court. On 30/4/2004,
it dismissed the Suit after holding that landlords were not
entitled to decree for possession under Rent Act as per section
24, or u/s 16(1)(a),(b),(c),(e) or(g). Section 16 enables the
court to restore possession to landlord if it is satisfied that tenant
has committed an act prohibited by section 108(O) of T.P. Act
i.e. a ground under S.16(1)(a). Clause (b) is erection permanent
structure without landlord's written consent, Clause (c) is being
guilty of conduct which is nuisance or annoyance , (e) is
unlawful subletting or licensing while sub clause (g) deals with
ground of reasonable & bona fide need. The respondent
landlords then filed Appeal as mentioned above which came to
be allowed by accepting bona fide need , permanent alteration
and efflux of time as per lease agreement. During final
arguments before me, when tenant demonstrated that

amendment allowed by the Small Cause Court was not carried
out completely, landlords moved Civil Applications 2668 & 2669
of 2009 to pay deficit court fees and to amend the plaint for that
purpose. At hearing of this application tenant pointed out that
same exercise was also necessary in Appeal memo. After hearing
both sides, these applications were allowed by me on 9/12/2009
and landlords were allowed to pay the deficit court fees and
amend plaint as also appeal memo suitably for said purpose.
Accordingly the court fees have been paid and the amendments
have been carried out by the respondents landlords.
3. Adv. J.M. Gandhi for Petitioner tenant has contended
that the basic plaint as filed is only under S. 24 of Rent Act and
as it came to be filed not before the authorized revenue officer
but before the civil court, its presentation itself is bad and void.
Any subsequent amendment thereto can not therefore instill life
in it. He argues that the amendments allowed by this Court are
only in the interest of revenue and does not affect his challenge
raised since before the Trial Court vide Exh.17/27 left undecided

by it. He further points out that though the paragraphs 9A to 9H
were added by amendment in plaint on 4/4/2001, the title
clause was not corrected. The stand of the tenant that there was
renewal of lease and proceedings under S. 24 have become
infructuous lead the landlord to effect the amendment. Tenant
was given only xerox copy of agreement to renew as also
memorandum and originals were retained by the landlords who
later avoided to have it registered and came up with plea of
fabrication. He invites attention to cross examination of landlord
to show that at one place, landlord Kundanlal i.e. plaintiff 1
accepted his sign on disputed xerox of renewal and how later he
adopted very cautious approach during further evidence. He
takes the Court through judgment of Small Cause Court to urge
how on merits no substance is found in landlords' case and
finding of absence of jurisdiction to go into renewal dispute
recorded by it . In this context, he attempted to demonstrate how
finding of permanent alteration or bona fide requirement
reached by Appellate Court is misconceived. The said court
ought to have accepted the renewal and the xerox renewal

agreement and dismissed the appeal of landlords. He points out
that after landlords avoided the registration, tenant immediately
sent a telegram on 4/9/2000 but landlords even did not bother
to reply to it. Evidence of witness DW3 Shri Kulkarni is also
heavily relied upon with contention that nothing material could
come out in his crossexamination.
4. In the light of other evidence on record, Adv. Gandhi
further argues that use of tenanted premises for shop & godown
was never discontinued and in some part thereof a cabin was
erected as office. This can not be construed as change of user to
grant decree of eviction. The change by raising a cabin is neither
structural nor permanent, and eviction under clause 16(1)(b)
on that account is unsustainable. To explain his stance, he also
takes support of S. 108 of Transfer of Property Act,1882. He
also pleads that alleged attempt to cut open the door or change
of floor do not constitute nuisance in the eye of law to support
the decree for ejectment under clause 16(1)(c) of Rent Act. To
show that the case for bona fide need was not made out time &

again extent of premises available with the landlords and
suppression of existing businesses with sons is being harped
upon. Photographs duly exhibited are also shown to urge how
landlords lied about its nature. The contention is finding about
comparative hardship is eclipsed because of erroneous approach
in this respect by Appellate Court. The landlords never pleaded
any greater hardship to them or lesser to the tenant in the
matter. He has relied upon several precedents to buttress his
contentions and I find it appropriate to refer to the same in the
course of the consideration at appropriate places.
5. Adv. Kaptan has stressed that plaint as filed contained
requisite pleadings pointing out entitlement of landlords to
eviction even under other heads i.e. under S. 16 of the Rent Act
and construing it as only under S. 24 is erroneous. He takes the
Court through the plaint and also relevant provisions of Rent
Act. Mere label or wrong provision quoted as title is not fatal and
to substantiate it, he cites some precedents. Immediately after
the objection was raised, court's powers under O.6 R.17 CPC

were invoked and paragraphs 9A to 9H were added which relate
back to the date of institution of the suit. It needs to be noted
that there is no paragraph as “9F” and paragraphs added by
amendment are 9A to 9E & then 9G and 9H. This permission to
amend granted by the Small Causes court on 4/4/2001 was
never challenged by the tenant and has attained finality. To
show that amendments so allowed relate back to the date of
institution of the suit or then pleadings need liberal approach, he
relied upon some caselaw
& I find it convenient to refer to it at
appropriate juncture.
6. To point out that there was no renewal & the fraud
played by the tenant by fabrication of documents, he narrates
chronology and states that on 5/9/2000, tenant filed O.7 R.11
CPC application at Exh. 17 with copy of letter dated 5/9/2000
about forwarding of two cheques. He argues that tenant had no
guts to swear about the alleged telegram dated 4/9/2000. He
invites attention to copy of telegram to show anamolies and
inconsistencies apparent therefrom and crossexamination
of the

tenant to urge that every thing in relation to renewal defence
was preplanned.
Evidence of the handwriting expert Shri Kotwal
was also shown to demonstrate that expert was not given correct
signatures for use as standard signatures. Original documents i.e.
xerox looked into by Small Cause court and Appellate Court are
also commented upon by showing the records & proceedings of
small Cause court. Evidence of tenant's witness i.e. DW3 Shri
Kulkarni is also criticized as without any merit.
7. Adv. Kaptan points out that eviction has been ordered
by the Appellate Court under S. 16(1)(a)(b)(c) &(g) of the Rent
Act. Subclauses (a) attracts S. 108(o) of T.P. Act and
contingencies contemplated in it are mutually exclusive. As
various parts of section 108(o) are disjunctive, alteration
prohibited therein need not be permanent because of
explanation appended to S.16(1)(a) of Rent Act. That
explanation does not qualify the “change” in substantive part of
clause(1) but it only refers to last part of S.108(O) of TP Act. He
further relies on sub clause (b) of S.16(1) of Rent Act for this

purpose which is deliberately kept independent of sub clause(a).
According to him terms of lease at Exh. 63 agreed between the
parties are final in this respect and hence, decree under both
these subclauses of S. 16(1) of the Rent Act is legal & valid. To
demonstrate nuisance also he has invited attention to Exh. 63
and photographs at Exh. 125 to 127. Door cutting and parking
are projected as nuisance. Some judgments are relied upon in
support. Coming to bona fide requirement, he argues that there
is no concealment of any relevant material by the landlords and
more hardship is not required to be pleaded at all. The burden to
show reasonable need initially is on the landlords and burden to
establish malafides or greater hardship to him is always on the
tenant. Tenant has to point out efforts made by him to search
other accommodation He relies upon number of judgments for
this proposition. He points out that application for dismissing the
suit filed at Exh. 27 was not left undecided but was actually
“filed” on 9/11/2001 itself. He further argues that as the findings
reached by the Appellate Court are based upon evidence and are
not perverse, no interference therewith is possible in writ

jurisdiction.
8. Adv. Gandhi for tenant in brief reply has pointed out
how the landlords have attempted to create confusion about the
standard signatures supplied by tenant for comparative study to
handwriting expert. He points out that not only title of suit was
omitted to be corrected but then requisite court fee was also not
sought to be paid or was paid when paragraphs 9A to 9H came
to be added. Cause of action plea was also not amended at any
time. He also attempted to distinguish the judgments cited by
Adv. Kaptan. He also relied upon judgment of Hon. Gauhati High
Court to urge that in view of plaint assertion of absence of
landlordtenant
relationship, the suit was not maintainable
before Small Cause court. Adv. Kaptan had objected to new point
being raised at this stage but on next day i.e. 7/12/2009 urged
that said view is overruled
by that High Court only and also in
view of Apex Court judgment. He also disclosed filing of CA
2628 & 2669 of 2009 already mentioned by me above. These
two civil applications were considered & allowed on 9/12/2009

after obtaining the tenant's reply thereto.
9. As the developments are little vexed and the impugned
judgment is a reversing judgment, both the learned Counsel have
also referred to the pleadings and evidence. It will be therefore
in fitness of things to see how Small Cause court & the Appellate
Court have dealt with it while appreciating their arguments. To
streamline the exercise, it will be first essential to find out under
which subclauses of Section 16 (1) of Rent Act the decree for
eviction of the petitioner tenant is granted by the Appellate
Court in an appeal under section 34 thereof. In paragraph 16,
the said court records that after having already filed RCS
165/2000 on 14/6/2000, it did not appeal to logic that there
would be any renewal on 2/9/2000. It records that “having been
considered the oral & documentary evidence” & “date of
institution of RCS 165/2000”, it found substance in contention of
the landlords that said documents were created by the tenant in
effort to show that the tenancy continued. It also found that the
Small Cause court wrongly shifted the burden to landlords to

disprove the alleged memo of understanding & renewal. In
paragraph 17 taking up evidence of tenant about regular rent
payment, nonissuing
of receipt by the landlords, landlords not
permitting tenant to fix the furniture in suit premises and about
handwriting expert Mr. A.G. Pathak, it mentions his evidence
that there is a grill covered by iron tin sheet affixed to wall and
doing of flooring work without permission of landlords. It then
reproduces paragraph 11 of Canara Bank vs. Yusuf Abdulhussein
reported at 1999(3) Mah.L.J. 510 and mentions grievance of
landlords that tenant was not using the premises for the purpose
let out but had shifted that businesses elsewhere and suit
premises were being used only for office work & hence, there is
change of user. In paragraph 18 of its judgment, the Appellate
Court refers to case of landlords that from July,1999 the tenant
was not paying any rent and hence, they decided to terminate
the agreement of lease dated 16/5/1995 for non payment of rent
within first 5 days of tenancy month and accordingly notice was
served. Appellate Court notices that thus on basis of default in
payment of rent & electric charges, landlords was claiming

breach of terms & conditions of lease, “which gives rise to
terminate the tenancy of the respondent”. In paragraph 19, it
states bona fide need of sons i.e. plaintiffs no. 3 & 4 for their
business purpose, extent of area in their possession as per tenant,
the other accommodation secured by the tenant to gather effort
of landlords to demonstrate availability of alternate place and
hence of no hardship to the tenant. It then proceeds to consider
case law on comparative hardship and alternative
accommodation In paragraph 20 case law on reasonable
requirement is stated and at its end , Appellate Court says“
The
appellants trying to convince the court on the point respondent
though having sufficient accommodation in Nagpur city just in
front of suit premises and also using for business purpose, still
trying to retain the possession of the suit premises with an
intention to harass the appellants, therefore bona fide need of
appellants should have been taken into account by the learned
trial judge in the circumstances of the case”. In paragraph 21 it
considers the other case law and only narrates stand of tenant
that landlords were harassing him. It also noticed tenant's

contention that suit on the basis of alleged nuisance was not
tenable and that tenant was blaming landlords of committing
acts of nuisance. In paragraph 22, it notices objection of tenant
to tenability of suit under S. 24 and stand of landlords that suit
was not only under s. 24 but also under S. 16(1)(a)(b)(c)(e) &
(g) of Rent Act. In paragraph 23 and 24 it goes back to evidence
on fabrication of renewal memo & lease agreement but
reproduces only contentions. In paragraph 25 Appellate Court
again comes to cement flooring, iron & steel material found on
spot to make office chamber, the direction in RCS 313/2000 to
tenant to remove the alterations made and finds that the Small
Cause court failed to consider such evidence while deciding the
issue of change of nature of suit premises. In paragraph 25, it
holds that sufficient evidence about sufficient alternate
accommodation with tenant is brought on record by the
landlords. It also declares that landlords succeeded in
establishing that tenant has alternate accommodation and has
already shifted his business to his own property and is using suit
premises as office cum chamber. In paragraph 27 it concludes

that tenant has not paid rent regularly as per lease terms and
therefore, by notice dated 24/8/1999 the landlords terminated
the tenancy from midnight of 15th May 1995 (sic.1999). In
paragraph 28, Appellate Court also considers plea of landlords in
the alternative and holds that as there was no plea of renewal by
tenant after 2/9/2005, he could not claim continuation of
tenancy as separate notice terminating the tenancy was not
required due to its period as settled between parties. In
paragraph 29 which is last paragraph of its judgment, Appellate
Court concludes that –i) Tenancy stood terminated by efflux of
time, ii) permanent alterations made due to flooring & office
chamber, iii) Suit was not only u/S 24 but also u/S 16 of Rent
Act, iv) As tenant was not paying rent & other charges regularly,
he has no right to retain possession, v) Tenant has sufficient
alternate accommodation, vi) Sons Rajesh & Nandlal were
assisting father Kundanlal in business and bona fide need on that
account was established & vii) Tenant has comparatively more
area for his business than landlords. It holds that the trial court
failed to consider the oral & documentary evidence in entirety in

proper perspective. It has therefore allowed the Appeal of
present respondents landlords.
10. Even after all amendments, the title of suit remains as
one under S. 24 of the Rent Act. It was till 9/12/2009 also
valued accordingly i.e. at amount equal to two months rent. For
eviction of tenant, valuation contemplated is at 12 times the
monthly rent and that valuation has been done by paying deficit
court fee not only in suit but also in appeal after 9/12/2009 as
per leave granted by this Court. Fact remains that though the
paragraphs 9A to 9H came to be inserted before the Small Cause
court, the title of suit was not modified by carrying out the
amendment which already stood allowed by it and in appeal
again the same valuation i.e. as in suit S. 24 of Rent Act was
acted upon. However, in view of scheme of O.7 R.11 CPC this
does not in any way help the tenant as the defective valuation
must be allowed to be corrected by paying deficit court fee
within specified time and suit can be dismissed only if there is
failure to cure that defect within said time. Most important

question would be whether suit as filed and prosecuted could
have been treated as one validly instituted on 14/6/2000 or
then, as it was before the wrong forum, it could not have been
allowed to be amended or amendment allowed can not relate
back to the institution of suit. Though a ground in this respect is
attempted to be raised vide ground VIII in writ petition, the
petitioner tenant has not advanced any effective arguments to
further it & has not made any prayer to quash order dated
4/4/2001 allowing amendment. More over there is no challenge
to order of Small Cause court allowing that amendment at right
time and it is not there in present writ petition. It is not the case
of tenant that said order was assailed before the Appellate Court
but that court ignored the challenge. Moreover, as urged by Adv.
Kaptan, if in unamended plaint seeds for pleas added later on are
seen, the approach to the controversy will have to be from
different perspective. Mere wrong label of plaint will not be
conclusive in that eventuality. Adv. Gandhi has pointed out that
two independent applications were preferred before the Trial
Court to dismiss the suit for want of jurisdiction and no orders

were passed on it. But then it is not his case that those
applications were pressed and still the same were left undecided.
One fails to understand why applications were not brought to
the notice of Trial Court and allowed to lie on records. Such
conduct to leave some lacunae deliberately and then attempt to
seek remand on that basis can not be countenanced at all. From
records, it is apparent that one such application at Exh. 27 was
disposed off by Trial Court on 9/11/2001 itself by ordering it to
be filed. Correctness thereof was/is never questioned by the
tenant. Pendency of similar application filed earlier vide Exh. 17
is therefore not relevant at all.
11. Plaint in Reg.C.S. 165/2000 as filed on 14/6/2000
under S. 24 of the Rent Act shows that there prayer was for
delivery of possession with damages at double the rate of the
license fee or rent. In its paragraph 13 the cause of action is
claimed to have accrued on 10/4/2000 when notice for vacating
after expiry of lease was issued , on 16/5/2000 when the lease
period expired & day to day thereafter. This paragraph has

remained as it is till date. In paragraph 2 last renewal in 1995 for
5 years is pleaded and then in paragraph 3 it is alleged that on
8/6/1999 tenant attempted to cut open the back door by gascutter
with a view to take unauthorizedly the possession of
backside portion. As it was criminal act, complaint was lodged
with police. Paragraph 4 then states that tenant had started
creating nuisance in the premises and knowing that his right to
occupy was coming to an end on 16/5/2000, he resorted to
illegal activities of not depositing the rent & electricity charges.
Though damages after expiry of lease period were payable, he
did not deposit the same. He filed suit and by order of temporary
injunction sought separate electric meter but that order was
stayed in misc. civil appeal preferred by landlords. In paragraph
5 unauthorized work to convert suit block into office chambers
by using wood, aluminum material undertaken on 12/2/2000 is
also pointed out. As tenant did not pay any heed to warnings,
filing of RCS 313/2000 against him for removing such work and
case that change of user from godown to office was contrary to
law also finds place in it. In paragraph 6 of plaint, landlords state

that monthly rent was to be increased by Rs. 100/every
year
and water charges of Rs. 20/were
payable every month with
electricity charges as per bill. In paragraph 8, right of landlords
to cancel lease midterm
for failure to pay rent and breach of
terms of lease is also pleaded. In paragraph 9 it is pleaded that
monthly rent agreed for period from 16/5/1995 to 16/5/2000
was Rs. 2710/PM
with electricity charges as per bill. Tenant had
on 9/1472000
issued letter informing stopping of rent payment
and landlords replied to it on 30/7/1999 pointing out that he
was not paying rent regularly as per the agreement and was also
not paying electricity bills. As per lease, if rent was not paid
within first 5 days of the month, the tenancy was liable to be
terminated. Landlords i.e. plaintiffs exercised that right and vide
notice dated 24/8/1999 terminated it w.e.f. 23/9/1999
intimating tenant that he had to pay damages at the rate of Rs.
1000/per
day. In paragraph 10 landlords pleaded that
thereafter the tenant started sending cheques which were
appropriated towards damages by sending communications on
17/12/1999, 5/1/2000 & 10/3/2000. They also pointed out

reply dated 23/12/1999 by tenant that he would not be sending
the cheques in future. In paragraph 11, they have stated that as
the lease duration was to expire on 16/5/2000, a final notice
came to be issued on 10/4/2000 calling upon the tenant to
handover the vacant possession by midnight of 16/5/2000.
Landlords accordingly relied upon their entitlement to possession
in this situation under Section 24 of the Rent Act. In paragraph
12 they pleaded that after expiry of lease period the tenant had
no right to withhold the possession in view of the Rent Act.
12. It is not in dispute that proceedings under S. 24 of the
Rent Act lie against a licensee and before the competent
authority. Small Cause court is not that competent authority and
defendant before it was not described as licensee but as lessee
The registered agreements between parties are of lease. Section
7 clause (15) of Rent Act defines the phrase “Tenant” while its
clause (5) defines who is “Licensee”. Said clause (5) requires a
subsisting agreement of license and admittedly, here the
agreements were of lease. None of the learned Counsel have

even whispered that tenant can be the licensee here. Moreover,
S. 24(1) expressly restricts itself to licensee of residential
premises and here lease is for nonresidential
use i.e. godown.
Hence S. 24 obviously has no relevance and mere claim of
damages at double the rate of license fee in plaint can not be
determinative. Needless to mention that plaint can not be
viewed as one under S. 24 of Rent Act. The matter was before
the Small Cause court and contained a prayer for eviction with
basic grievances/grounds like nuisance, irregular or nonpayment
of rent and electricity charges, change of user ,
unauthorized alterations & breach of lease agreement. It is clear
that the plaint therefore could not have been thrown away at the
threshold and scrutiny on touchstones of law and precedents was
necessary to find out merit therein. The landlords amended their
plaint shortly without any serious opposition from tenant well
before recording of evidence and that order allowing the
amendment was never questioned by tenant. Even today no
arguments of prejudice on that count have been advanced by
him.

13. Reliance of Adv. Kaptan on Challamane Huchha
Gowda v. M.R. Tirumala,(2004) 1 SCC 453, at page 459 (para
10) shows that it is a settled position of law that a mere non mentioning
or wrong mentioning of a provision in an application
is not a ground to reject an application. Since there was no bar
found in treating the objection (filed in the matter before Hon.
Apex Court) as an application for setting aside the sale, the
setting aside of sale by the execution court was held to be
perfectly in tune with the CPC. In AIR 1994 Bom 141Jagdish
Balwantrao Abhyankar and others v. State of Maharashtra and
others relied upon by the landlords Full Bench of this Court has
in para 21 taken the view that “ “21. Sometimes it does happen
that an application is filed under a particular provision of a statute
and it is found to be not maintainable thereunder or the Court or
Tribunal has no power to grant the relief asked for thereunder but
the said application is maintainable under some other provision of
the statute before the same Court or Tribunal and it has power to
grant the relief asked for, it is in such cases that it has always been

held that the "label" or the "nomenclature" of the application or
petition should not matter and after seeing the substance or
contents of the application, if it is possible to grant the relief under
some other provision of the statute, such a relief should not be
denied to a party. It is, however, material to note that such a
recourse is taken only when it is found that the relief asked for
cannot be granted under the provisions under which the
jurisdiction of the Court or Tribunal is invoked, much less when the
result would be to deprive the party of a right of appeal provided
against the order passed under such a provision.” I have already
pointed out how the suit though styled as one under S. 24 of
Rent Act could not be accepted thereunder and was treated as
one S. 16 of the Rent Act as necessary basics therefor were
available on record. Here, with notice to tenant the suit was
amended to expressly bring it within the scope of S. 16 of Rent
Act and that exercise or conversion was never challenged
immediately. On the contrary the suit was allowed to proceed
further on merits without any serious effort to stop its trial and
tenant participated in it. At this stage, only technical objection is

being raised without even hinting any prejudice by him. Perusal
of application under O.6 R. 17 CPC discloses that it proposed to
amend the title of suit also as “Suit under Section 16(1)(a)(b)
(c)(e)&(g) of the Maharashtra Rent Act read with section 24”.
This amendment was however not carried out though the other
amendments allowed by very order were carried out. The
present adjudication demands separate consideration of said
amended paragraphs 9A to 9H but then facts establish that mere
inadvertent failure of advocate to carry out amendment to title
clause can not be fatal to the suit which otherwise fought
diligently & wholeheartedly by the landlords. Law as laid down
by Hon. Apex Court in Siddalingamma v. Mamtha Shenoy,
(2001) 8 SCC 561, at page 567 – para 10 shows following
observations : “An application for amendment under Order 6 Rule
17 CPC was moved and the deficiency in the pleadings stood
removed by the amendment permitted by the trial court in exercise
of its discretionary jurisdiction to do so. The order permitting the
amendment was not put in issue promptly. Even the High Court in
its impugned order has not found fault with the order of the trial

court permitting the amendment nor has it expressed an opinion
that leave granted by the trial court for amendment in the eviction
petition suffered from any error of jurisdiction or discretion. On the
doctrine of relation back, which generally governs amendment of
pleadings unless for reasons the court excludes the applicability of
the doctrine in a given case, the petition for eviction as amended
would be deemed to have been filed originally as such and the
evidence shall have to be appreciated in the light of the averments
made in the amended petition. The High Court though set aside the
order of the trial court but it is writ large from the framing
The
need of the landlady is, as borne out
from the amended pleadings and material brought on record, bona
fide and not arbitrary, whimsical or fanciful. In a civil case, once
an amendment has been unreservedly permitted to be incorporated
in the pleadings, the correctness of the facts introduced by
amendment cannot be doubted solely on the ground that they were
not stated in the original petition. So also genuineness of the
landlady’s statement, supported by medical prescription, that she
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needed to have treatment at Bangalore trial
court deserves to be restored. On the question of comparative
hardship as also on the issue of partial eviction, having ourselves
evaluated the wellreasoned
findings recorded by the trial court, we
are inclined to uphold the same more so when they have not been
reversed by the High Court.” These observations apply with full
force even in present facts. Though the learned Counsel for the
landlords has also cited some judgments to show that pleadings
need to be construed liberally, I do not find it necessary to refer
to the same.
14 The amended paras “9A to 9H” need to be looked into
while appreciating the findings reached by the Appellate Court.
It found that the tenancy stood terminated by efflux of time,
that permanent alterations were made, that as tenant was not
paying rent & other charges regularly, he lost right to remain in
possession, that tenant has sufficient alternate accommodation,
that bona fide need for sons Rajesh & Nandlal was established &
that tenant had comparatively more area for his business than
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landlords. Efflux of time is not the ground in S. 16 at all and it is
available vide S. 24 of Rent Act before competent authority,not
before Small Cause court and that too only against a licensee for
residential purpose. Being in arrears of rent or other charges is
also not an express ground thereunder but then S. 15 of Rent
Act prohibits ejectment if tenant pays or is ready & willing to pay
standard rent & permitted increases. It mandates service of 90
days notice demanding the same and contemplates filing of suit
only when within said period such amount is not cleared by the
tenant. Here facts show that the grievance was not of nonpayment
but of irregular payment. S.15(3) extends further
protection to defaulter tenant by not permitting a decree of
eviction, if within period of 90 days of service of suit summons,
he deposits the amount till then due with 15% interest,
continues to pay the legal rent during pendency of suit and pays
costs of the suit. Here, there was no such 90 days notice
demanding the standard rent or permitted increases, suit filed
did not seek any decree under S. 15 of Rent Act and no arrears
were claimed in it. Hence, tenant also did not get any
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opportunity as contemplated in S.15(3) and in any case,
Appellate Court has not found tenant in any arrears. So eviction
as ordered on that account can not be sustained under any
clause of S. 16 as independent provision made therefor by
legislature in Chapter III of Rent Act under the head “Relief
against forfeiture” can not be allowed to be defeated or diluted
by such an endeavour or interpretation. When more serious type
of misconduct viz. defaults in paying rent or tenant being in
arrears is not seen as enough to permit a landlord to ask for
decree of eviction, mere irregularity in rent payment can not
confer any right to such decree. Securing alternate
accommodation by the tenant is again not a ground envisaged
under S. 16 of Rent Act. Though it found tenant guilty for
fabrication of alleged renewal documents, it has not granted any
decree for eviction on that count and there is no effort even
before this Court by the landlords to corelate it with any clause
under S. 16 to sustain the claim for decree on that count.
Though it holds flooring done by tenant to be a permanent
alteration, it has not recorded its own finding about attempt to
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cut open an access to rear side using the gascutter
or then about
change in nature of business or also on tenant not carrying out
the shop & godown activities in tenanted premises. It holds that
“sufficient evidence about sufficient alternate accommodation”
with tenant is brought on record by the landlords. It also
declares that landlords succeeded in establishing that tenant
has alternate accommodation and has already shifted his
business to his own property and is using suit premises as office
cum chamber. But then this declaration comes abruptly and not
as a part of process of mind application to that evidence. Not
using the premises for purpose for which the same are let out
without reasonable cause for continuous period of six months
preceding the date of suit is a valid ground under S.16(1)(n) but
the same has not been invoked by the landlords. Commission of
an act contrary to clause “O” of S. 108 of T.P. Act is ground in S.
16(1)(a) of Rent Act. S.108(O) of T.P. Act requires tenant to use
the tenanted premises as person of ordinary prudence, not to use
it for purpose other than one for which it was let out, and not to
commit any act destructive or permanently injurious thereto.
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Perusal of Appellate Court judgment reveals primacy given to
alternate accommodation available with the tenant and in that
background the need of landlords has been considered. Hence
whether bona fide need, nuisance as pleaded or then commission
of an act contrary to S.108(O) of T.P. Act is established or not
are the crucial aspects. The principle of comparative hardship
becomes available only after bona fide need is proved and
Appellate Court here, appears to have used it to strengthen the
case of landlords on need.
15. As already mentioned above, there is no plea of tenant
not using the suit premises for purpose for which it is let out for
a period of 6 months prior to institution of the suit without a
reasonable cause. Amended paragraph 9A as added on 4/4/2001
shows that landlords alleged starting of changing of nature of
suit premises from godown to office in February, 2000 and the
suit has been filed on 14/6/2000.Thus said period of 6 months
was not over on the date of institution of suit. Only grievance is
of not obtaining landlords' permission. No facts having any
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bearing upon “without reasonable cause” are pleaded. Because of
this plea eviction is sought under clauses 16(1) (a)&(b) of Rent
Act. Landlords do not allege that the tenant has secured any
other accommodation & does not need reasonably the suit
premises. Thus tenant's possession of alternate premises is
irrelevant in present matter. S.108 of T.P. Act saves contracts or
usages to the contrary. Its clause “O” prohibiting user for any
other purpose than one for which the premises are let out can be
imported in Rent Act through S.16(1)(a) of Rent Act. When S.
16 of Rent Act does not expressly provide for any such ground of
eviction, and because of specific requirements of clause 16(1)(n)
such user must be minimum for 6 months before 14/6/2000, it
follows that the such other user by itself is not actionable.
Moreover, on facts the lease agreement Exh. 63 dated
16/5/1985 itself discloses the purpose of lease as “for shop &
godown”. Hence, construction of some separate office chamber
by itself is not enough to imply any deviation from such agreed
user. Landlord Kundanlal has in cross examination accepted the
purpose mentioned in lease to be correct and also stated that
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“the suit premises is being used by the defendant as shop as well
as godown”. This admission destroys the prayer for decree for
eviction on ground of change of user. It also shows that the
abrupt finding of use of suit premises as office cum chamber by
Appellate Court is unsustainable. Landlords have relied upon AIR
1993 S.C. 2646 "Dashrath Baburao Sangale v. Kashinath Bhaskar
Data" , Hon. Apex Court considered Section 13(l)(a) of the
Bombay Rent Act which provided that "if the tenant has
committed any act contrary to the provision of clause (o) of
Section 108 of the Transfer of Property Act, he renders himself
liable for eviction." Clause 108(o) of the Transfer of Property Act
says that the lessee must not use or permit another to use, the
property for a purpose other than that for which it was leased."
Dashrath Baburao Sangale and others v. Kashinath Bhaskar Data
(supra) & the judgment of Hon. Apex Court relied on by Tenant
viz. Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1034 are
considered recently in AIR 2005 S.C. 3389 "Hari Rao v. N.
Govindachari" by the Hon. Apex Court. As its earlier cases also
find consideration in this judgment & show the right perspective,
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instead of elaborating more, I find it proper to use the words of
Hon. Apex Court which lay down that :“
7 .Learned counsel for the landlord placed
considerable reliance on the decision in M. Arul
Jothi and Anr. v. Lajja Bal (Deceased) and Anr.,
(2000) 3 SCC 723. That case also arose under
Section 10(2)(ii) (b) of the Act. The transaction
between the parties was governed by a lease deed.
The tenant covenanted that the premises, "shall be
used by the tenant for carrying on his own business
and the tenant shall not carry on any other business
than the above said business". The business intended
was dealing in radios, cycles, fans, clocks and steel
furniture. Subsequently, the tenant also started a
trade in provisions (spices and dals etc.) The
landlord sought eviction and the Courts below
ordered eviction under Section 10(2)(ii)(b) of the
Act. The tenant had appealed to this Court. This
Court referred to the earlier decisions of this Court
including the one in M. K. Palaniappa Chettiar v. A.
Pennuswami Pillai, (1970) 2 SCC 290. It also
referred to Section 108(o) of the Transfer of
Property Act. This Court distinguished the various
decisions brought to its notice under other sister
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enactments and took the view that the covenant in
the rent deed not to use the premises for any
purpose, other than the one referred to in the rent
deed, brought the user by the tenant within the
mischief of Section 10(2) (ii)(b) of the Act and,
therefore, the order for eviction was justified. With
respect, as we see it, their Lordships rested their
decision on the existence of the negative covenant in
the lease deed and on the view that a breach of that
covenant, would attract Section 10(2)(ii)(b) of the
Act, and make the user, one comingwithin the
mischief of that provision. In this case, as observed,
there is no covenant as the one involved in Arul
Jothi's case. In M. K. Palaniappa Chettiar v. A.
Pennuswami Pillai, (1970) 2 SCC 290, the tenant,
while continuing the business for which the building
was taken on rent, was using a negligible portion of
the building for the purpose of cooking. This Court
held that the High Court was in error in reversing
the decision of the Rent Controller and the Appellate
Authority to the effect that no ground for eviction
under Section 10(2)(ii)(b) of the Act was made out.
This Court dismissed the petition for eviction. In
Mohan Lal v. Jai Bhagwan, (1988 (3) SCR 345),
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this Court, interpreting the corresponding provision
in Haryana Urban (Control of Rent and Eviction)
Act, 1973, held that when a tenant who had taken
a building on lease for the purpose of running a
business in liquor, converted the business into that
of general merchandise, in the absence of a negative
covenant, the user did not amount to user for a
purpose other than that for which the building was
leased. The same position was adopted in Gurdial
Batra v. Raj Kumar Jain, (1989 (3) SCR 423,
where the premises was let out for repairing
business and the tenant along with the repairing
business, also carried on sale of television sets for a
while. This Court held that there was no change of
user which would attract the liability for eviction
under the corresponding provisions of the East
Punjab Urban Rent Restriction Act, 1949. It was
clearly stated that the concept of injury to the
premises which forms the foundation of Section
108(o) of the Transfer of Property Act is the main
basis for a provision similar to the one in Section
10(2)(ii)(b) of the Act. We think that the case on
hand is governed by the principles recognized in the
latter decisions and the ratio of the decision in Arul
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Jothi has no application in the absence of a
negative covenant as the one obtaining in that case.
Dashrath Baburao Sangale and others v. Kashinath
Bhaskar Data, (1994 Supp (1) SCC 504) was a
case where the premises was taken on rent for
"sugarcane crushing with the help of an ox and for
the shop thereof" and the tenant was to get
constructed a temporary shed of tinsheet
for that
purpose. The tenant started a cloth business in the
premises. The Courts below found that this was a
user for a purpose other than that for which the
premises was leased and this Court found no
ground to interfere. This decision only reaffirms
the
position that everything would depend on the terms
of the letting and the facts of the case. Obviously,
the cloth business started, had no connection with
crushing of sugarcane. The decision in Ram Gopal v.
Jai Narain and others (1995 Supp (4) SCC 648),
shows that the user by the tenant of a building
taken on rent for the purpose of running a shop
(commercial), for a manufacturing purpose, would
entail his eviction on the ground of change of user.
The tenant, in that case, installed an Atta Chakki
and on Oil Kolhu, in the shop. The case on hand is
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not one of that nature. In other words, in the
present case, there was no change of user, from
nonresidential
to residential or from business to
manufacturing or industrial. As emphasized
already, there was also no negative covenant as was
available in Arul Jothi's case. In such a situation,
we are satisfied that the High Court was clearly in
error in interfering with the decision of the
Appellate Authority that there was no change of
user in the case on hand attracting Section 10(2)
(ii) (b) of the Act. Merely because a tenant, who
has taken a building for the purpose of running a
trade, alters the commodity in which he was
trading when he took the building on lease or
trades in other commodities also, he could not be
held to be using the premises for a purpose other
than the purpose for which it was let. The purpose
has to be understood, as the purpose of trade and in
the absence of a covenant barring the using of it for
any other trade, it will be open to the tenant to use
the premises for expanding his trade or even for
taking up other lines of trade as befits a prudent
trader.”
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This ruling has no relevance when stipulation of
purpose in Exh. 63 i.e. lease agreement between parties is looked
into. There is no evidence about nature of activity of tenant
going on in the office chamber. Landlords could have pleaded &
deposed that some other business activity unrelated with godown
work was/is undertaken in office/cabin, but that is not the
position here. As such, it is not necessary to burden this
judgment with other citations in this connection. Eviction
ordered on the ground of change of user is thus liable to be
quashed.
16. Permanent alterations made due to flooring & office
chamber made in suit premises is also a ground which has found
favour with the Appellate Court. Commission of any act
destructive of tenanted premises or permanently injurious
thereto is prohibited by S.108(O) of T.P. Act and the same is
covered under S.16(1)(a) of Rent Act. S. 16(1)(b) thereof
prohibits erection of permanent structure without written
consent of landlord. Appellate Court does not point out how the
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property is prejudicially affected because of flooring or said
chamber. I have to go back to the above mentioned judgment of
Hon. Apex Court . Hon. Apex Court in "Hari Rao v.
N.Govindachari" (supra) considers some precedents and finds :“
9.
In support of his claim for eviction under Section 10(2)(iii) of
the Act, what the landlord pleaded was that his tenant had put up
new signboards
and fixed two additional racks by drilling holes in
the wall and in the beam and had taken an independent electric
connection for which holes have been drilled in the floor and the
wall, and all this amounted to commission of acts of waste as are
likely to impair materially the value and utility of the building. He
also pleaded that the tenant had damaged the building while
converting the shop for selling ready made dresses. He had installed
additional showcases
on the walls of the building by making holes
therein. He had increased the consumption of electricity by fixing
up more lights and fans. He had increased the electric load, causing
constant blowing out of the fuse in the building and causing
damage to the electric service connection to the whole building and
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the entire building may catch fire at any moment. He also put up a
big name board outside, damaging the building and had also
drawn heavy electrical lines and taken service connection to the
name board, with a heavy load of electricity. The tenant admitted
the putting up of signboards
and the fixing up of racks but he
denied that he had caused any damage. Whatever he had done was
with the consent of the landlord and the claim put forward by the
landlord was only an attempt to gain the sympathy of the Court.
The Engineer, P.W. 2 noted that new racks were fixed by making
holes in floor walls and also in the beams. Two new massive sign
boards were fixed in the front and side. Holes were made in the
parapet wall of the first floor and angle irons supporting the sign
boards were fixed. The parapet wall was only 2" think and it could
not take the weight of the huge sign boards and the parapet wall
may collapse at any time. New electric connection has been given
by making holes in the foundation and the wall in front and a new
meter board had been fixed. This report of P.W. 2 was not sought
to be corroborated by any other material to show that there was
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any danger because of the taking of a new electric connection or by
the increase in load. It is true that for the purpose of his trade, the
tenant fixed new racks by making holes in the floor, the walls and
in the beams. But, in the absence of any other material, it cannot
be said to be the commission of acts of waste as are likely to impair
materially the value and utility of the building. We must say that
there is hardly any evidence on the side of the landlord to show
that there was material impairment, either in the value or the
utility of the building by the acts of the tenant. The mere fixing of
signboards
outside the shop by taking support from the parapet
wall, cannot be considered to be an act of waste which is likely to
impair materially the value or utility of the building. The report of
the Engineer, P.W. 2 merely asserts that the parapet wall will
collapse at any time. There is no supporting evidence in respect of
that assertion. Ex. B1letter
of the landlord giving permission to the
tenant to fix boards, cannot also be ignored in this context.
Moreover, when a trade is carried on in a premises, that too in an
important locality in a city, it is obvious that the tenant would
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have to fix signboards
outside, to attract customers. These are days
of fierce competition and unless the premises is made attractive by
lighting and other means, a trader would not be in a position to
attract customers or survive in the trade. Therefore, the acts of the
tenant established, are merely acts which are consistent with the
needs of the tenant who has taken the premises on rent for the
purpose of a trade in leather goods and shoes and in furtherance of
the prospects of that trade. The fixing of racks inside the premises
even by drilling holes in the walls or beams cannot be said to
be act which are themselves acts of waste as are likely to impair
materially the value and utility of the building. Broadly, a
structural alteration however slight, should be involved to attract
Section 10(2)(iii) of the Act. In fact, we see hardly any pleading or
evidence in this case which would justify a conclusion that the acts
of the tenant amount to such acts of waste as are likely to impair
materially the value and utility of the building. In G. Arunachalam
(died) through L.Rs. and Anr. v. Thondarperienambi and Anr.,
(AIR 1992 SC 977) dealing with the same provision, this Court
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held that the fixing of rolling shutters by the tenant in place of the
wooden plank of the front door by itself did not amount to a
structural alteration that impaired the value of the building and no
eviction could be ordered under Section 10(2)(iii) of the Act. Of
course, in that case, there was also a report by an Engineer that the
structural alteration made for fixing the rolling shutter, did not
impair the value of the building. In the context of the Kerala
statute which spoke of impairment in the value or utility of the
building materially and permanently, this Court has recently held
in G. Raghunathan v. K. V. Varghese, (2005 (6) Scale 675) that
the fixing up of rolling shutter and doing of the allied acts referred
to in that decision, would not amount to user that materially and
permanently impairs the value or utility of the building. The Act
here, only speaks of acts of waste as are likely to impair materially
the value and utility of the building. The impairment need not be
permanent. But even then, it appears to us that it must really be a
material impairment in the value or utility of the building. In
British Motor Car Co. v. Madan Lal Saggi (Dead) and Anr.,
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((2005) 1 SCC 8), this Court considered the aspect of material
alteration or damage in the context of Section 13(2)(iii) of the
East Punjab Urban Rent Restriction Act, 1949. In the lease deed in
that case, there was a covenant that the lessee will not make any
addition or alteration or change in the building during the period
of the tenancy. This court referred to Om Prakash v. Amar Singh,
((1987) 1 SCC 458), Om Pal v. Anand Swarup, (1988) 4 SCC
545), Waryam Singh v. Baldev Singh, (2003) 1 SCC 59,
Gurbachan Singh v. Shivalak Rubber Industries, ((1996) 2 SCC
626), Vipin Kumar v. Roshan Lal Anand, ((1993) 2 SCC 614) and
held,
"When a construction is alleged to have materially impaired the
value and utility of the premises, the construction should be of such
a nature as to substantially diminish the value of the building
either from the commercial and monetary point of view or from the
utilitarian aspect of the building."
There is hardly any material in the present case on the basis of
which the Court could come to the conclusion that the act of the
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tenant here has amounted to commission of such acts of waste as
are likely to impair materially the value and utility of the building.
The Rent Controller and the High Court have not properly applied
their minds to the relevant aspects in the context of the statute and
have acted without jurisdiction in passing an order of eviction
under Section 10(2)(iii) of the Act. The Appellate Authority was
justified in denying an order of eviction to the landlord on this
ground. ”
17. Hari Rao v. N. Govindachari" (supra) also considers
AIR 2005 S.C. 3680 "G. Reghunathan v. K. V. Varghese" .
Eviction due to material alteration under S. 11(4)(ii) of Kerala
Buildings (Lease and Rent Control) Act (2 of 1965) from a
seventy five years old building let out for jewelery trade was
considered there by the Hon. Apex Court. It was found that
rolling shutter fixed by tenant could provide more security to
premises & landlord not even pleaded that alterations made by
tenant had destroyed or reduced value or utility of building
materially and permanently. Considering that it was jewelery
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business, security of premises was found essential and value of
building was also enhanced by such alterations. Landlord there
admitted that he would get higher rent if premises were let out
again. In this backdrop, Hon. Apex Court held, that order of
eviction under S. 11 (4)(ii) was liable to be set aside as landlord
failed to prove that acts of tenant constituted user of building in
such manner as to destroy or reduce value or utility of building
materially and permanently. AIR 1967 S.C. 643 "Manmohan Das
Shah v. Bishun Das" pressed into service by Adv. Kaptan is also
considered here but then it also stands distinguished there for
present purposes. I, therefore, find it convenient to mention it
little later. AIR 1987 S.C. 1939 "Venkatlal G. Pittie v. M/s. Bright
Bros. (Pvt.) Ltd." considers S.108(p) 0f T.P. Act with S.13(1)(b)
of Bombay Rents, Hotel and Lodging House Rates Control Act
(57 of 1947). Under Cl. (p) of S. 108 if a lessee without the
lessor's consent erects on the property any permanent structure
except for agricultural purposes then it becomes a ground for
ejectment. The permanent structures alleged were constructions
of lofts, construction of several rooms and construction of and
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laying of a new and permanent flooring . The tenant had sunk in
pillars and stanchions into the flooring. It was stated in the
deposition that these pillars and stanchions mentioned in the
plaint were only the posts supporting the cabins and lofts
complained of and none else. These pillars and stanchions went
along with the construction of lofts and construction of several
rooms, that is cabins. Hon. Apex Court then looks into some
decided cases to note that in Khureshi Ibrahim Ahmed v. Ahmed
Haji. (AIR 1965 Guj 152) in connection with section 13(1)(b) of
the relevant Act, Gujarat High Court held that the permanent
structure must be one which was a lasting structure and that
would depend upon the nature of the structure. The permanent
or temporary character of the structure would have to be
determined having regard to the nature of the structure and the
nature of the materials used in the making of the structure and
the manner in which the structure was erected and not on the
basis of how long the tenant intended to make use of the
structure. As a matter of fact the Court observed the nature of
the structure itself would reflect whether the tenant intended
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that it should exist and be available for use for a temporary
period or for an indefinite period of time. The test provided by
the Legislature was thus an objective test and not a subjective
one and once it was shown that the structure erected by the
tenant was of such a nature as to be lasting in duration lasting of
course according to ordinary notions of mankind the tenant
cannot come forward and say that it was erected for temporary
purpose. In Ramji Virji v. Kadarbhai Esufali, (AIR 1973 Guj 110)
it was observed that question whether the structure was a
permanent structure was a mixed question of law and fact. It
was held in that case that alterations made by a tenant like
constructing loft, wooden bathroom frame and putting up a new
drain being minor alterations which were easily removable
without causing any serious damages to the premises would not
amount to permanent structure leading to the forfeiture. Hon.
Apex Court also expressed that there are numerous authorities
dealing with how the question whether the structure is a
permanent structure or not should be judged and it was not
necessary to deal with all these. One must look to the nature of
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the structure, the purpose for which it was intended and take a
whole perspective as to how it affects the enjoyment, the
durability of the building, etc. and other relevant factors and
come to a conclusion. Then the Hon. Apex Court observes :“
22. Judged in the aforesaid light on an analysis of
the evidence the trial court as well as the appellate
court had held that the structures were permanent.
The High Court observed that in judging whether
the structures were permanent or not, the following
factors should be taken into consideration referring
to an unreported decision of Malvankar, J. in
Special Civil Application No. 121 of 1968
(Bombay). These were : (1) intention of the party
who put up the structure; (2) this intention was to
be gathered from the mode and degree of
annexation; (3) if the structure cannot be removed
without doing irreparable damage to the demised
premises then that would be certainly one of the
circumstances to be considered while deciding the
question of intention. Likewise, dimensions of the
structure; and (4) its removability had to be taken
into consideration. But these were not the sole tests.
(5) the purpose of erecting the structure is another
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relevant factor, (6) the nature of the materials used
for the structure, and (7) lastly the durability of the
structure. These were the broad tests. The High
Court applied these tests. So had the Trial Court as
well as the appellate Bench of Court of Small
Causes.”
Ultimately, Hon. Apex Court allowed the Appeals and restored
the decree of eviction. In 2001(2) Mah.L.J. 881—Hotel Rosalia
Pvt. Ltd. vs. M/S Metro Hotels, the learned Single Judge of this
Court held that tenant replacing water storage tanks was not
erecting a permanent structure. In the process in paragraph 14 it
is observed
“14. The dissection of the aforesaid pleadings would show
that the plaintiff has neither pleaded absence of written consent
nor mentioned any of the material facts constituting the erection of
the alleged construction on the premises as a permanent structure.
No nature of the construction was pleaded in the plaint. The nature
of construction or erection on the premises could be permanent,
semipermanent
or temporary. In order to prove erection or
construction of permanent nature, one has to plead material facts
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and place material particulars so as to establish the nature of
construction. No details are to be found in the plaint. The learned
counsel for the respondent, therefore, was right in his contention
that on the basis of the averments made in the plaint no cause of
action as required under section 13(1)(b) of the Bombay Rent Act
was made out by the plaintiff as such no decree for eviction can be
passed against defendantstenants.”
Division Bench of Nagpur High Court in AIR 1956
Nag. 60 – Smt. Savitri Devi vs. U.S. Bajpai considers provisions
relating to “act of waste” & hence, it is not relevant here.
Extension of wooden platform, construction of a door are held to
be not a permanent construction in The Pune Art Industries vs.
Narayan Kashinaath Date –1994(3) Bom.C.R. 68. In AIR 1990
Bom. 182Ramchandra
Dattatraya Gandhi, v. Sou. Pushpabai
Manohar Sheth, construction of gutter and putting pavement
thereon and also construction of kitchen platform are held not
permanent structures under S. 13(1)(b) of the Bombay Rents,
Hotel and Lodging House Rates Control Act (57 of 1947) after
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relying on "Venkatlal G. Pittie v. M/s. Bright Bros. (Pvt.)
Ltd."(supra). About burden of proof in the matter, it is observed
in paragraph 10 :“
10. However, Mr. Walawalkar submits that the
defendant has made admissions in the writtenstatement
and if those admissions are taken into
account, it can be said that allegations, as far as
Section 13(1)(b) is concerned, has been proved. But
I think it must be held that the plaintiff ought to
have led evidence with regard to the nature of the
construction, the situation of the wall and the
window, where it has been put up, the degree of
annexation and various other relevant factors so as
to make it a permanent structure within the
meaning of Section 13(1)(b) of the Rent Act. The
admission, as far as defendant is concerned, is that
he had spent a sum of Rs. 1500/ in
respect of the
otta, that is, the platform, the more, that is, the
sink and the wall and the window. The admission is
as to the expenditure for various items of repairs
and alterations, and this is one such item. There is
no other admission.
11.This takes me to the other allegation, namely,
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construction of a shed. The plaintiff's
evidence, as I have stated above, is nil.
as
to whether it would cause any
damage to the demised premises, etc.
However, it was pointed out across the bar
that this was put up outside the house in an
open space and the open space is a part of the
demised premises. In other words, it becomes
clear that the Appeal Court had come to the
conclusion without any basis whatsoever. If
that is so, certainly this judgment deserves to
be reversed under Article 227 of the
Constitution of India.
12. Relying on the case of Venkatlal G. Pittie
v. M/s. Bright Bros. (Pvt) Ltd. reported in AIR
1987 SC 1939 Mr. Walawalkar submitted
that it is not proper for this Court to come to
the conclusion which is different from the
conclusion of the lower Court unless it can be
said that there was no evidence whatsoever in
the lower Court. He submitted that this Court
could interfere, only if it could be said that
the finding is perverse in law, in the sense
that no reasonable person could have come to
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such a finding or there is a misdirection in
law or it can be said that the finding is based
on no material evidence or it has resulted in
manifest injustice. There is no dispute as to
these propositions at all. It is clear to my
mind that in the present case there is no
evidence worth the name to come to the
conclusion that the defendant had constructed
permanent structures within the meaning of
Section 13(1)(b) of the Rent Act. Most of the
things, as stated by the Appeal Court, are
based on surmises and conjectures, without
any evidence whatsoever from the plaintiff.
When the plaintiff files a suit under Section
13(1)(b) and alleges as against the tenant
that he has put up a permanent structure
within the meaning of Section 13(1)(b) of the
Rent Act, the plaintiff must lead evidence in
support of such a contention, giving all
particular so as to constitute such a structure
a particular one. It is only when he initially
discharges this burden, the burden shifts on
the other side and then the defendant can
point out as to how the structure cannot be
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said to be a permanent structure. In the
present case, the plaintiff made no effort
whatsoever to lead any kind of evidence,
being contented with what the defendant had
stated in his writtenstatement.
As I said
earlier, there is no such categorical admission
at all. The defendant was answering a case
under Section 13(1)(g) of the Rent Act and in
answer to that he pointed out as to how with
the consent and knowledge of the then
landlord he had carried out certain
alterations for making the place comfortable
for use and occupation. Even otherwise, if
admissions are to be relied upon, the plaintiff
cannot pick and choose only a part of the
admission. Admission must eye taken as a
whole and must be understood in the context
in which it is made. ” In Chhotalal Maganlal
vs. M/s Mayur Silk Mills – 1978 All.I.R.C.J.
71 Division Bench of Gujrat High Court has
applied the test of possibility of removal of
new structure ( a big partition wall there)
without damage to property.
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18. Manmohan Das Shah v. Bishun Das" (supra) relied
upon by landlords is appreciated by the Hon. Apex Court in "G.
Reghunathan v. K. V. Varghese" (supra) with other precedents
as under :“
This Court had considered the scope of the
analogous provision in sister enactments. The U.P.
Cantonments (Control of Rent and Eviction) Act was
involved in Manmohan Das v. Bishun Das (1967
(1) SCR 836). Even if the alterations did not cause
any damage to the premises or did not substantially
diminish its value, the alterations were material
alterations. On that basis alone, the landlord was
entitled to evict the tenant. That was in the context
of the provision which enabled a landlord to get an
order for eviction, if the tenant had, without the
permission of the landlord, made any construction
which has materially altered the accommodation.
Eviction could also be ordered even if that
construction or alteration was likely to substantially
diminish the value of the building. The difference
with the Kerala Act is that the two requirements
were disjunctive. It was enough to satisfy either one
of them. It was clarified that although the
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expression "material alteration" was not defined, the
question would depend on the facts of each case. In
that case the acts of the tenant were held to amount
to material alterations. In Om Prakash v. Amar
Singh (AIR 1987 SC 617) interpreting the same
provision, it was held that the question whether a
construction materially altered the accommodation
was a mixed question of fact and law. The
dictionary meaning of the expression "materially"
and "alter" were considered. It was held to mean "a
substantial change in the character, form and the
structure of the building without destroying its
identity". It had to be seen whether the constructions
were substantial in nature and they altered the
form, front and structure of the accommodation. No
exhaustive list of constructions that constitute
material alteration could be given. The
determination of that question depended on the
facts of each case. On facts, it was held that there
was no material alteration. It was also laid down
that the construction of a temporary shed in the
premises which could easily be removed did not
come within the mischief of the section. Brijendra
Nath v. Harsh Wardhan, 1988 (2) SCR 124 held
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that the construction of a wooden balcony in the
showroom did not amount to material alteration.
Replacing of wooden plank on the front door of the
building by a rolling shutter was held to be not an
alteration that caused any damage to the building
and that was held not to provide a ground for
eviction in Arunachalam (died) through L.Rs. and
another v. Thondarperienambi and another (AIR
1992 SC 977). In Vipin Kumar v. Roshan Lal Anand
(1993 (2) SCC 614) a claim under Section 13(2)
(iii) of the East Punjab Urban Rent Restriction Act,
1949, it was held that the impairment of the value
or utility of the building was from the point of the
landlord and not of the tenant. It had to be shown
that there was impairment of the building due to
acts of the tenant and, secondly, it had to be shown
that the utility or value of the building had been
materially impaired. The Court went on to say that
the statute on proof of facts gave discretion to the
Court to order eviction. The wording of the
provision was "if the tenant has committed such acts
as are likely to impair the value or utility of the
building or rented land". The Rent Controller had to
independently consider and exercise the discretion
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vested in him keeping in view the proved facts to
decree ejectment. It was for the landlord to prove
such facts which warrant the Controller to order
eviction in his favour. In Waryam Singh v. Baldev
Singh (2003 (1) SCC 59) construing the same
provision, it was held that enclosing a verandah by
constructing walls and placing a rolling shutter in
front, did not justify an inference that the value or
utility of the building had been impaired, in the
absence of evidence led by the landlord to prove that
the value or utility had been affected. So an order of
eviction could not be granted. ”
19. This necessitates consideration of S.108(O) which
requires alteration to be either destructive or permanently
injurious to the tenanted premises. S. 16(1)(b) of Rent Act
envisages erection of any permanent structure without landlords'
consent. Its explanation excludes any work carried out with
permission of municipal authority, where ever necessary , for
providing a wooden partition, standing cooking platform in
kitchen, door, lattice work or opening of a window necessary for
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ventilation, a false ceiling, installation of air conditioner, an
exhaust outlet or a smoke chimney. Whether there is any
evidence on record to show that chamber constructed by tenant
is permanent structure or then about nature of alleged floor
work so as to attract these legal provisions? Extent of work and
its nature or mode are therefore relevant. Question needs to be
first approached in the light of pleadings. In unamended plaint in
paragraph 5 only contention is unauthorized starting of change
of nature of block by using wood & aluminium. It is alleged that
tenant has no right to change structure or change the position of
shop from shop godown to office. Amendment vide paragraph
9A only adds relevant legal provisions i.e. S.16(1)(a)(b) of Rent
Act. Floor work or permanent / injurious nature does not figure
anywhere. In affidavit of chief, same grievance is aired only with
addition of words suggesting the change to be permanent by
Landlord. Paragraph 7 of his crossexamination
shows that office
is made by affixing cabins & partitions of plywood. Tenant made
flooring with cement as he wanted to convert premises in to
office. He deposed that due to said flooring cracks appeared in
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walls. He accepted that daily heavy goods are carried into
tenanted premises and disposed of and, that he did not carry any
repairs or colouring since inception of tenancy. He accepted that
he did not obtain any report from expert about flooring or
partition causing cracks or damages. His evidence therefore does
not show that cabin made or flooring done jeopardized the
strength of structure or that the work was of permanent
character. When lease is for shop & godown, why & how changes
made in flooring or by constructing office cabin were injurious
needed to be pleaded and established by the landlords. Why a
separate cabin or office in godown may not be erected by
aluminium & plywood or then why & how it affected the
structure and weakened it, whether alterations made by tenant
had destroyed or reduced value or utility of building materially
and permanently, whether its removal without damaging the
structure was possible or not are the essential facts which ought
to have been pleaded and proved. When landlords have not
spent anything on repairs or maintenance of shop and godown
for almost 15 years, looking to the heavy load being stacked
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therein & purpose of lease, expenditure by tenant on cement
flooring can not be viewed as impairing the structure or
prejudicial to the the interest of landlords. The law above shows
that initial burden in this respect was upon landlords and when
they fail to state anything concerning the floor in their plaint and
did not lead requisite evidence, decree on that count under S.
16(1)(a) &(b) could not have been granted by the Appellate
Court. It has lost site of ingredients of S.108(o) of TP Act or of S.
16(1)(a)(b) in this respect. Its findings are also contrary to facts
on record.
20. According to Adv. Kaptan, two types of nuisance are
established by landlords. First one is attempted door cutting to
create an access to the rear yard or back portion of plot while the
other is of parking of vehicles. In plaint para 4 i.e. before the
amendment only statement is tenant started creating nuisance in
premises. But then further part of said para does not elaborate
that claim and points out expiry of lease duration and suit filed
by the tenant to secure separate electric meter. Para 3 then
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speaks of criminal act of attempt to cut back door by gascutter
to take possession of backside premises unauthorizedly.
Paragraph 9E added later on is pressed into service by the
learned Counsel and it mentions misuse of the open space of the
plot without disclosing manner thereof. In next sentence, use of
said space as parking place for parking his and customers'
vehicles by tenant and resulting obstruction in way of the
landlords is pleaded. Small Cause court while recording its
findings against point no. 4 in paragraph 22 notes that not
making payment for electric charges was also projected as
nuisance. It has expressly declared that such nonpayment
or
then alleged attempted door cutting will not constitute nuisance
under S.16(1)(c) of the Rent Act. It found that said conduct can
not be viewed as one causing annoyance or nuisance and tenant
was not held guilty of illegal door cutting. About parking it found
that in absence of pleadings, the same can not be accepted. It
also found that there is road in front of suit premises which is
used by both parties for carrying steel by trucks or carts. These
vehicles of landlords as also tenant are parked on that road for
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unloading. This is admitted by PW3
Rajesh i.e. one of the
landlords. He accepted existence of common lane leading to
shops of both parties and that their shop was at the end while
the shop of the tenant was prior to it in that lane. Both the shops
are adjacent to each other and the photographs at Exh. 125 to
127 prove it. Trial court also relied upon Amarchand
Harakchand Kaswa vs. Ramanlal Shantilal Porwal—1981
Bom.C.R. 489 to record the findings in favour of tenant. In
paragraph 21 Appellate Court only narrates stand of tenant that
landlords were harassing him. It also noticed tenant's contention
that suit on the basis of alleged nuisance was not tenable and
that tenant was blaming landlords of committing acts of
nuisance. But then it nowhere records any finding on landlords'
complaint of nuisance. In Shantilal Kesharmal Gandhi v.
Prabhakar Balkrishna Mahanubhav(
2007) 2 SCC 619 ,the
judgment cited by Adv. Kaptan, the building was governed by
the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 . The landlord of the building, the respondent before
Supreme Court had filed a suit for eviction of the tenant under
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Sections 13(1)(a), (c) and (k) of the Act. The landlord pleaded
that by installing the machinery and by dumping of the products
and the blocking of an “ota”, the tenant had caused nuisance to
the plaintiff and the other occupiers of the same building
belonging to the plaintiff and had rendered himself liable to be
evicted under Section 13(1)(c) of the Act. Observations of Hon.
Apex Court reveal that the finding is based on the effect of
installation and working of machinery by the tenant, the
blocking of an “ota” (passage) by putting up a tin sheet partition
and the dumping of articles in the passage and in the open space
in the premises. These aspects were found relevant and the
effect of these acts also relevant by the Hon. Apex Court while
entering a finding on nuisance under Section 13(1)(c) of the Act.
The argument there whether the photographs relied on by the
landlord to prove the dumping were duly proved did not impress
it. Similarly, the attempted explanation of the tenant that the
goods did not belong to him but to his relatives was held as
rightly rejected by the trial court and the appellate court.
Therefore, Hon. Apex Court saw no reason to interfere with the
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decree for eviction under Section 13(1)(c) of the Act. Hon. Apex
Court also found that appellate court being final on facts, has to
apply its mind independently to the pleadings & evidence before
recording its conclusion either accepting or reversing the
findings of the trial court. There is no such appraisal here though
the Appellate Court has written a reversing judgment. I am not
in position to conclude that Appellate Court has ordered
petitioner tenant's eviction on the ground of nuisance here.
21. The premises are let out for use as shop or godown.
The plaintiffs i.e. landlords are in same business as that of
tenant. Lease is granted with knowledge of geographical
situation. Trucks & carts with material or goods to be stored or
transported are bound to frequent the tenanted premises as also
landlords' shopcumgodown.
The purpose of lease itself
envisaged this. Parking or some problem therefor depending
upon the frequency of such vehicles can not by itself therefore
be viewed as nuisance. In any case, it can not suddenly become a
nuisance. No change in the mode & manner of regulation of his
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business by tenant is even alleged by landlords. Landlords have
accepted in crossexamination
that this parking practice is going
on since 20 years. The landlords have not pointed out any special
instructions in the matter of regulation of use of said lane or
road by tenant. Moreover it is not very clear from evidence in
cross in para 6 of landlord whether these vehicles wait on public
road or on private plot of landlords. Said cross also shows that it
is not his grievance that such vehicles are unnecessarily kept
standing on road. Parking therefore has not been proved to be a
nuisance at all by the landlords. S.16(1)(c) of the Rent Act
contemplates nuisance due to conduct or activity of tenant as
tenant as such. Test is of nuisance or annoyance to the adjoining
neighbour or occupier. Such nuisance or annoyance has to
emanate from activities of tenant undertaken by tenant because
of his user of tenanted premises. Whether solitary instance like
attempted door cutting here would fall in it or then isolated
violation of rights of lessor stands covered under this provision is
the moot question. As parties have not addressed this Court on
it, I avoid to record any final answer to it. A distinction may have
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to be drawn in acts of annoyance or nuisance actionable under S.
16(1)(c) of Rent Act and acts in defiance of rights of landlord
not envisaged therein. But, in present facts even if attempted
door cutting is presumed to be established , landlords have not
pleaded it as an act of nuisance and have narrated it as criminal
act for which prosecution was initiated They have not pointed
out that the tenant is found guilty thereof by competent court.
Moreover, a door already existed to access open plot on backside
of the tenanted premises and it was closed by grill and iron tin
sheet. Tenant's alleged attempt to open it therefore ought to
have been demonstrated to be annoyance or nuisance to
neighbors or adjacent occupiers. Here landlords have their shop
& godown in vicinity of tenanted premises and still necessary
facts to show such annoyance or nuisance are neither pleaded
nor deposed to. Hence, argument of Adv Kaptan that Appellate
Court has ordered eviction also under S.16(1)(c) of Rent Act due
to nuisance of parking or door cutting can not be accepted. In
any case, such grant , if nay can not be and could not have been
sustained.
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22. Bona fide need of landlords accepted by the Appellate
Court now needs consideration. It is seen above that plaint as
filed originally did not contain this plea and it has been added
subsequently. Paragraph 9D added on 4/4/2001 states that
plaintiff no. 3 Rajesh & 4 Nandlal are the unemployed sons of
plaintiff no.1 Kundanlal. Rajesh is stated to be not interested in
or concerned with business of his father & wanted to have
separate business as he is grown up & married. Nandlal also
intended to start some independent business. Kundanlal was
therefore insisting for vacation of tenanted premises for starting
new business for his unemployed sons. Unemployment of both
the sons with their desire to start independent business is thus
the need pleaded with specific case that plaintiff no. 3 Rajesh is
not either interested or concerned with the father's business.
Defendant tenant stated that Rajesh & Nandlal were already well
established and earning a lot. They were not unemployed and
premises with landlords were big enough to meet their alleged
need. S.16(2) prohibits the court from passing a decree on this
ground if after considering the circumstances of the case
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including the question whether other reasonable accommodation
is available for landlord or the tenant, it finds that greater
hardship would be caused by passing the decree than by
rejecting it. It enables the court to order eviction only from part
of tenanted premises if court is satisfied that no hardship would
be caused either to the tenant or the landlord thereby. Thus
availability of such other premises with landlord or tenant is a
relevant fact & a balancing element thereunder. Here, neither
landlords plead absence of such accommodation with them or
availability thereof with the tenant. Kundanlal's cross
examination in para 5 reveals that his sons are income tax payee
and they deal with shares in the name “Nandlal” and they also
assist him in his business of Sunayana Steel & Hardware.
Paragraph 10 of his cross shows that he has constructed building
of 2500 sq. feet and except 924 sq. ft. Area in tenant's
possession, remaining area is occupied by landlords. He took
time to answer the question about extent of area lying open
beyond building. He stated that plot area was 26000 sq. ft. He
stated that if his financial condition permits he could construct
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on said area. He stated that he or his family did not have any
other landed property. Rajesh in his chief stated that he &
Nandlal were unemployed and he was not concerned with or
interested in business of his father Kundanlal. He stated that
both of them are married. He further mentioned that 924 sq. ft.
Area was with tenant while 1500 sq. ft. was with his father.
Both the brothers had been assisting the father and have
acquired sufficient knowledge & experience in steel & iron
business. They have sufficient amount to invest, loan can be
obtained and material can also be procured on credit. They
wanted to start business of iron & steel fabrication. The suit
premises were / are in iron & steel market and suitable for their
purpose. Then he has given details of various other properties
with the defendant tenant to urge that more hardship would be
caused to them by denying the decree for possession. In cross
examination he stated that as he was assisting his father in
business, his occupation was disclosed as business in affidavit.
He denied that he was not unemployed. He stated that 450 sq. ft.
of construction shown in photograph Sr. No. 2 with list Exh.
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117 is made by his father on their plot. He denied that it was a
permanent structure. He accepted that he himself, his brother
and mother were income tax payees but then he could not tell
his income and stated that it was known to his chartered
accountant. He could not tell what amount was invested in
shares by his brother or his business disclosed in income tax
return. He stated that he does not have any knowledge about the
business of his father. He however stated that he was assisting
his father in business since 10 years and his brother also used to
assist. In evidence of tenant , no material has been brought on
record to show the other or alternate accommodation available
to him.
23. Trial court i.e. Small Cause court has in paragraph 24
of its judgment found that Rajesh & Nandlal were not
unemployed & dealt with share business, assisted their father
and are income tax payees. It therefore found that bona fide
need as pleaded did not exist and both brothers have business,
source of income. Appellate Court has found that burden in this
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respect on landlords was very light and onus was upon the
tenant to establish that requirement of landlords was not bona
fide. In paragraph 19 it has given importance to alternate
accommodation with tenant and factors relevant therefor
perhaps with a view to judge comparative hardship. However, in
para 19 it has not recorded any finding in this connection. Then
in paragraph 20 it has proceeded to consider the “need” for
Rajesh & Nandlal. In para 21 it considers requirement of
landlords giving necessary details and in last subpara
thereof
while narrating the contention of tenant about his harassment
by the landlords, it mentions nuisance to tenant and challenge
about tenability. Thus till this stage it does not record any
finding on bona fide need or comparative hardship either way.
Paragraphs 22 to 24 of its judgment mention rival stands on
alleged fabrication of renewal documents. In paragraph 25 it
goes to angle of material alteration. In paragraph 26 it suddenly
records a conclusion of sufficient alternate accommodation with
tenant without evaluation of rival evidence. Finding at the end of
said paragraph is “Thus, the appellants have succeeded in
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establishing that the respondent has alternative accommodation
and already shifted his business over the property belonging to
him and merely using the suit premises for office cum chamber”.
As already demonstrated above this finding is in conflict with
version of landlord Kundanlal. In paragraph 27 duty of tenant to
pay rent regularly finds place. In para 28 expiry of alleged
renewed period on 2/9/2005 due to disputed renewals is
recorded. Then in paragraph 29 which is the last paragraph of
the judgment conclusions are quoted. These conclusions are
already mentioned by me in earlier part while demonstrating the
manner in which the Appellate Court has dealt with the issues in
Appeal. It concludes that the bona fide need for Rajesh &
Nandlal is established and as tenant has sufficient alternate
accommodation, less hardship will be caused to him by asking
him to vacate. Thus it has not evaluated the material brought on
record by both the sides to find out one which deserved
acceptance and which side was weak and has not assigned any
reasons therefor. It has not even pointed out any fault with
findings of Small Cause court in this respect.
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24. Consideration above shows that Appellate Court has
failed to discharge its obligations. I find it apt to reproduce the
law as laid down by the Hon. Apex Court in Santosh Hazari vs.
Purushottam Tiwari reported at AIR 2001 SC 965 :“
While writing a judgment of reversal the appellate
Court must remain conscious of two principles.
Firstly, the findings of fact based on conflicting
evidence arrived at by the trial Court must weigh
with the appellate Court, moreso when the findings
are based on oral evidence recorded by the same
presiding Judge who authors the judgment. This
certainly does not mean that when an appeal lies on
facts, the appellate Court is not competent to reverse
a finding of fact arrived at by the trial Judge. As a
matter of law if the appraisal of the evidence by the
trial Court suffers from a material irregularity or is
based on inadmissible evidence or on conjectures
and surmises, the appellate Court is entitled to
interfere with the finding of fact (See Madhusudan
Das v. Smt. Narayani Bai, AIR 1983 SC 114). The
rule is and
it is nothing more than a rule of
practice that
when there is conflict of oral evidence
of the parties on any matter in issue and the
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decision hinges upon the credibility of witnesses,
then unless there is some special feature about the
evidence of a particular witness which has escaped
the trial Judge's notice or there is a sufficient
balance of improbability to displace his opinion as
to where the credibility lies, the appellate Court
should not interfere with the finding of the trial
Judge on a question of fact (See Sarju Pershad
Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh,
AIR 1951 SC 120). Secondly, while reversing a
finding of fact the appellate Court must come into
close quarters with the reasoning assigned by the
trial Court and then assign its own reasons for
arriving at a different finding. This would satisfy
the Court hearing a further appeal that the first
appellate Court had discharged the duty expected of
it. We need only remind the first appellate Courts of
the additional obligation cast on them by the
scheme of the present Section 100 substituted in the
Code. The first appellate Court continues, as before,
to be a final Court of facts; pure findings of fact
remain immune from challenge before the High
Court in second appeal.”
This binding precedent has not been followed in the
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present matter by Appellate Court at all. Reliance by Adv Kaptan
on AIR 1988 S.C. 367 "
Uday Chand Dutt v. Saibal Sen" to urge
that this Court can not interfere with findings on questions of
facts is therefore unwarranted here.
25. Several precedents on various facets of “reasonable
requirement” are placed before me for consideration by both
learned Counsel. Same deal with appropriate details of the bona
fide need or other accommodation both with landlords & tenant
and importance of its true discloser i.e. making clean breast of
matter before the court for said purpose in their respective
pleadings, effect of suppression thereof. Also question of burden
on either about proving need, about proving bona fides, about
proving alternative accommodation, relevance thereof with need
or to tilt the balance of comparative hardship is argued at length
with reference to S.16(1)(g) & (2) of Rent Act. I find that the
Small Cause court answered the issue in favour of tenant and in
appeal, though landlords made sincere efforts to assail said
findings, the Appellate Court did not discharge its obligations as
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per law. The stage at which bona fide need surfaced, the
circumstances in which it was pleaded, sufficiency of those
pleadings, correctness thereof, aptness of reply thereto by the
tenant, critical appreciation of evidence adduced on record by
both sides about need or respective hardship, its admissibility,
relevance of pleas in defense by tenant for that purpose, impact
of availability (if any) of alternative accommodation and validity
of approach by Small Cause court are various facets having
significant bearing on bona fide need here. As the Appellate
Court could not look into it and as I find that it will not be
proper to deny the advantage of that forum to one of the parties
before me, it is proper to send the matter back to Appellate Court
to consider only said aspect of bona fide need. I, therefore do not
find it fit to express any opinion on all these facets or on case law
being used by parties to canvass their respective cause. Same
needs to be left open for consideration before the Appellate
Court as per law.
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26. The story of alleged renewal for next 5 years after
16/5/2000 & two disputed documents needs to scrutiny in two
parts. First is about fact of fabrication. Second part is of proof of
such renewal as a matter of fact. Jurisdiction of the Small
Causes court under S. 16(1) of Rent Act has been invoked in the
matter by the landlords. Jurisdiction under S.24 is not available
at all in the matter and in any case that court is not competent to
look into S.24 grievance. Alleged fabrication of memo for
renewal of the lease beyond 1999 or then of agreement of lease
itself with story of signing it on 2/9/2000 or scheduled
execution & registration thereof on 4/9/2000 and oral evidence
about all this does not clothe the landlords with any additional
rights against such erring tenant under the Rent Act. There is
no effort to connect that grievance with any of the grounds
mentioned either in S. 16 of Rent Act or elsewhere by the
landlords. No attempt is made even before this Court to
capitalize on it for any purpose. Decree for eviction is not
sustainable only on that ground in present matter. The
documents examined by the handwriting experts are only xerox
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copies and they have examined xerox of his alleged signatures
to opine either way in favour of their respective clients. I find
alleged xerox signatures on alleged xerox copies of alleged
documents a dangerous combination to comprehend the
correctness of rival contentions either way. One expert Shri
Athale has pointed out that xerox copy does not reveal all details
as original. Admission by Kundanlal that first xerox page of
disputed document i.e. Exh. 16/1 bears his signature (xerox) can
not be accepted as decisive in the matter as xerox of his original
signature can be superimposed on xerox copy of any document.
Reliance on AIR 1976 Orissa 236 "
Subarna Barik v. State" by
Adv. Gandhi to urge that xerox document Exh.16/1 ought to
have been treated as proved is erroneous because there the
evidence of plaintiff about taking photograph of document in
office with permission of Tahsildar was not questioned and that
Tahsildar also accepted his signature as appearing in
photograph. Hence the photograph of document was held
admissible there as secondary evidence. In any case, even if
fabrication of these two documents by the petitioner tenant is
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presumed, it is not sufficient by itself to grant decree of eviction
to the landlord. The learned Counsel have attracted attention to
the evidence of respective handwriting experts and parties or
witness Shri Kulkarni to make good their stance about such
renewal. That evidence is not enough to return a finding of
fabrication of these two xerox documents by tenant. Entitlement
of landlords to decree for eviction due to reasonable & bona fide
need alone now needs to be scrutinized. Moreover the burden to
prove alleged renewal with satisfactory evidence was upon the
tenant. His evidence shows that the document was ready for
signatures with landlords even before the negotiations. His cross
examination shows that agreement on 2/9/2000 to remain
present before the sub registrar on 4/9/2000 was oral and
actually an understanding to that effect appears in xerox copy of
memorandum dated 2/9/2000. Tenant did not in his chief
utter/write a word about letter Exh. 159 forwarded by him on
5/9/2000 to Kindanlal for his alleged failure to turn up before
the subregistrar
on 4/9/2000. In cross, he accepted that this
letter dated 5/9/2000 was drafted by his accountant Sanjay
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Rathi on 2/9/2000. His version about sending telegram
immediately on 4/9/2000 itself to landlords for absence before
the sub registrar also can not be accepted as he claims to have
sent it on 4/9/2000 from Post office, Civil Lines, Nagpur. Its
certified copy is produced by him. Adv. Kaptan has pointed out
that tenant did not depose about such telegram or that certified
copy in affidavit in chief. Learned advocate made efforts to point
out inconsistencies appearing on face of it like seal of post office
or date etc. Adv. Gandhi had tried to explain it by stating that
seal is of delivering post office and of date of delivery. I can not
indulge in such guess work as parties had opportunity to lead
evidence and all such factual matters should have been put to
tenant when he was in witness box giving him opportunity to
explain the same. What is important to note for present purposes
is that receipt of such telegram and fact of not replying to it is
not disputed by the landlords. None of the parties have made
serious efforts to find out the person from whom or by whom
and when the stamp papers for writing memorandum of
understanding or renewal of lease were procured. I also find oral
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evidence available on record inadequate to conclude that there
was any such renewal on 2/9/2000 or that parties had agreed to
register such renewed lease deed on 4/9/2000. Hence, I hold
that the petitioner tenant has failed to prove any renewal of
lease beyond 16/05/2000 and respondent landlords have failed
to establish that tenant fabricated the xerox copies of
memorandum or renewed lease deed.
27. Small Cause court recorded a finding that it had no
jurisdiction to find out fabrication or otherwise of disputed
documents. Adv. Gandhi has raised issue of jurisdiction of that
court by placing reliance upon judgment of learned Single Judge
of Hon. Gauhati High Court in case of Ram Prasad Kumar vs.
Suuraj Nath Goala reported at 2006(1) Civil LJ 646. There the
tenancy had expired due to efflux of time and there was no
renewal or extension. Consent of landlord to continuing
possession of tenant was not established. Tenant was found not
holding over or the tenancy by operation of law was not proved.
It was also found that lease expired on 5/2/1971 & no rent was
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tendered by the predecessors in title of defendantan
alleged
tenant or by defendant to the plaintiff or his predecessors in title.
Plaintiffa
subsequent purchaser then on 24/2/1989 issued
notice terminating the lease and then filed a suit. This suit filed
by landlord for ejectment of such person as tenant was found not
maintainable. Here merely because the lease agreement has
expired the tenant does not cease to be the tenant. As pointed
out by Adv. Kaptan, such tenant continues to be the tenant in
view of S.7(15) of Rent Act and till decree for his eviction is
passed under S.16 thereof. As retention of possession by tenant
in Gauhati case was not proved to be with assent of landlord, the
learned Single Judge found that tenancy by operation of law
under S. 116 of TP Act was not established. It is also seen from
paragraph 3 of this report that tenants there were pointing out
acquisition of suitlands
by the State Government under Assam
ceiling law and grant of independent status as “khatians” to their
predecessors. I have already mentioned provisions of S. 24 of
Rent Act above. S.7(5) defining licensee requires a “subsisting
license” for that status to continue but there is no such
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requirement for the tenant. (1979) 4 SCC 219 V.
Dhanapal
Chettiar v. Yesodai Ammal, relied upon by Adv. Kaptan shows
that the action of the landlord in instituting a suit for eviction on
the ground mentioned in any State Rent Act is an expression of
his intention that he does not want the tenant to continue as his
lessee and the jural relationship of lessor and lessee will come to
an end on the passing of an order or a decree for eviction. This
was not the position before the Gauhati High Court. Ram Prasad
Kumar vs. Suuraj Nath Goala (supra) is therefore not relevant
here. It is also apparent that filing of suit to obtain any
declaration about fabrication of two disputed documents was not
necessary. Declaration either way would not have resulted in an
order of eviction. As the jural relation continues & alleged
disputed documents were between the landlord and tenant and
effort of tenant was to show the subsisting right to continue,
Small Cause court had the jurisdiction to adjudicate the
controversy. The alleged renewal, had it been established, might
have diluted the bona fides of landlords.
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28. In the circumstances, judgment & decree dated
29/8/2006 delivered by Additional District Judge, Nagpur in
Regular Civil Appeal no. 301 of 2004 is set aside and decree for
eviction of petitioner tenant granted thereby under S. 16(1) of
Rent Act is quashed. Regular Civil Appeal no. 301 of 2004 is




restored back to the file of said court to consider entitlement of
Appellant landlords before it to the decree under S.16(1)(g) of
Rent Act only & afresh in accordance with law. Rejection of
decree for eviction on remaining grounds vide its judgment &
decree dated 30/4/2004 in Reg. Civil Suit 165 of 2000 by
Additional Judge, Small Cause Court, Nagpur to landlords is
restored. As the matter is old, Additional District Judge, Nagpur
to attempt to decide the appeal as restored as early as possible
and in any case by 31/7/2010. As the issue of bona fide need
and comparative hardship is only to be considered by it, it is
made clear that observations made by this Court in that respect
are only to emphasize the need of remand of that ground and
those observations shall not influence the Appellate Court while
resolving said controversy as per law.

29. Writ Petition is thus partly allowed, however, there
shall be no orders as to costs by making the Rule absolute
accordingly.

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