A C BHANDARY Vs. V S J LOBO

JUDGEMENT

(1.) This is a tenant's revision petition against the order of the learned District Judge, Dakshina Kannada, Mangalore, dated 17-1-1985 made in C.R.P. No. 73/83. That Revision before the District Judge was filed against the order of the learned Munsiff, Mangalore, in H.R.C. No. 96/74, on his file, filed by the landlord-respondent under S.21(1)(a) and (c) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act') ordering eviction of the tenant-petitioner on the ground that he had errected a permanent structure in the leased premises without the written consent of the landlord as required by law. The District Judge has confirmed it. Therefore, the present Revision under Section 115 of the C.P.C.

(2.) This Court, while exercising jurisdiction under S. 115 C.P.C., will not act as a Court of Appeal or sift through the material that is in evidence once over again and come to a different conclusion. Therefore, on that account alone this Court must refuse to exercise its jurisdiction.

(3.) However, Sri U.L. Narayana Rao, learned Counsel for the tenant-Revision-Petitioner strenuously contended that on the admitted facts this Court should decide whether a structure erected with destructible material like ply-wood would constitute erection of a permanent structure. What is not disputed in this case is that the tenant who is the occupant of a Hall to run his Commerce Institute on the first floor of the premises in question, as lessee, has erected using ply-wood and other timber a small room which he uses as office of the Institute and which is blocking the passage that leads to the rear terrace of the building on the first floor. In other words, what is admitted is that he has created additional accommodation of a type which was not intended under the terms of the lease apart from interfering with the access that was available to all users of the rear terrace. In such a situation it will not be difficult for the Court to reach a conclusion whether a structure is a permanent structure or not as long as the intention is clear to use such structural alteration reasonably for a long period. The fact that destructible material was used to create such a structural change, does not, in my opinion, render such a structure any the less permanent. In fact, there is no structural building material which can claim absolute permanancy. Even a concrete wall made of cement can be destroyed by using appropriate instrument. A brick-wall can be bulldozed. A ply-board can be burnt. Type of the material used coupled with the intention of the maker of the alteration would be a more rational test than the test for deciding the permanent structure merely on the material used.