SRI JAYANTA BARUAH AND SADHIN PRINTERS REPRESENTED BY THE PROPRIETOR, SRI JAYANTA BARUAH Vs. SRI DILIP BARUAH

JUDGEMENT

(1.) The applicants are the original defendants-tenants of the suit premises. The learned Judge, Small Causes Court No. 10, Ahmedabad allowed H.R.P. Civil Suit No. 513 of 1996 instituted by the present opponents-original plaintiffs, and passed a decree of eviction directing the applicants-defendants to handover possession of the suit premises on or before 26th April, 2003. Thereafter defendants preferred appeal before the Appellate Bench of the Small Causes Court, Ahmedabad being Civil Appeal No. 69 of 2003, which came to be dismissed by the Appellate Bench on 07th March, 2012. Thereafter, the defendants-applicants herein preferred Review Application No. 195 of 2012, which was rejected vide order dated 18th October, 2012. The applicants have therefore approached this Court under Section 29(2) of the Bombay Rents, Hotels, Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). The suit being H.R.P. Suit No. 513 of 1996 was instituted by the opponents-original plaintiffs on twin grounds that defendants-tenants were in arrears of rent and secondly that they had erected permanent structure and therefore, they are liable to be evicted under Section 13(1)(b) of the Act as they had breached condition of tenancy. The premises, which was let-out, consisted of one room admeasuring 11 X 9 ft. The suit premises was rented by executing a rent note dated 16th September, 1967 in favour of one Laxmanbhai Prahladji, who died on 14th June, 1995 and the present tenants are the heirs of original tenant Laxmanbhai staying in the premises. It was pleaded by the plaintiff that tenants had changed the roof and raised the height of walls by 2 ft. by using bricks and had further encroached upon the area. It was the further case that on the encroached portion, an otta and a bathroom were constructed, which was obstructive to the other passers and tenants going to their premises. Raising aforesaid grounds, the plaintiff-landlord gave notice dated 12th February, 1996 to the tenant terminating the tenancy with effect from 31st March, 1996. The suit was contested by the defendants-tenants inter alia denying allegations.

(2.) It is required to be noted that during the pendency of the appeal before the Appellate Bench of the Small Causes Court, an application Exhibit 20 came to be preferred by the tenants stating inter alia that on account of cyclone, northern side wall had collapsed and the same was required to be repaired. The said application Exhibit 20 was disposed of by order dated 07th August, 2008 permitting the defendants-tenants to repair the roof of the suit room by substituting new iron sheets in place of old one.

(3.) Assailing the decree of eviction on the ground of raising permanent structure on the premises passed by the Trial Court and confirmed by the Appellate Bench of the Small Causes Court, learned advocate Mr. Harshal Shah for the applicants submitted that tenants had only replaced roof as per the order passed below Exhibit 20. With regard to finding that height of the wall was raised by using bricks, it was submitted by him that the said construction was in existence even prior to the order below Exhibit 20. As he could not gather any support from the record for his submission that the extended wall was in existence even before order below Exhibit 20, he submitted that in any view, said erection could not be said to be of permanent nature inasmuch as only bricks were used. Learned advocate relied upon the Apex Court decision in Purshottamdas Bangur and another v. Dayanand Gupta, 2012 2 RCR(Rent) 447to support his submission that the structure in question cannot be termed as permanent structure within the meaning of Section 108(p) of the Transfer of Property Act.