Whether plaintiff can be granted eviction decree if he fails to prove that tenant has made structure of permanent nature?

The dissection of the aforesaid pleadings would show that the plaintiff has neither pleaded absence of written consent not 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, semi permanent or temporary. In order to prove erection or construction of permanent nature, one has to plead material facts 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 defendants-tenants.

He further submitted that the question whether particular construction is a permanent structure within the meaning of section 13(1)(b) of the Rent Act depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in this behalf. The nature of the structure, its mode of annexation, the Intention of the tenant and surrounding circumstances all have to be pleaded to raise an issue whether or not particular structure is a permanent structure for the purpose aforesaid. It is also necessary to plead whether the structure brings about substantial change in the character of the demised premises. What was the object and purpose behind such construction? If the object is not for better or more complete enjoyment of the demised premises, then different consideration will walk in.

17. Apart from the vague pleadings, if one turns to evidence led by the plaintiff then it would further be clear that no evidence was produced in support of the nature of construction.

IN THE HIGH COURT OF BOMBAY

Writ Petiton No. 3645 of 1987

Decided On: 22.02.2001

 M/s. Hotel Rosalia (P.) Ltd.  Vs. M/s. Metro Hotels & Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.
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