Monday, 5 November 2018

Whether suit can be decreed if defendant has not entered into witness box?

 Unfortunately, the learned Appellate Judge was disturbed by the fact that the petitioner-tenant had not entered into the witness box. He has said so repeatedly in para 13 of his judgment which I have quoted above and the approach of the learned trial Judge seems to be that if a tenant had not examined himself, though he had led other evidence, the version of the plaintiff could be accepted straightway and should not be dis-believed. It is difficult to appreciate such a general proposition of law and the approach, in my view, is totally erroneous if not perverse. Assuming that, in a given case, the tenant did not examine himself, if the evidence led by the landlord was not enough to substantiate the case sought to be made out by him, his case ought to be rejected. The trial Court rightly thought that decree cannot be passed merely because the tenant did not choose to examine himself by entering into the witness box.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1942 of 1983

Decided On: 10.11.1994

Somnath Krishnaji Gangal  Vs. Moreshwar Krishnaji Kale and Ors.

Hon'ble Judges/Coram:
A.V. Savant, J.

Citation: 1995(3) BomCR 327


1. This petition is by the original defendant No. 1 - tenant against whom the Appeal Court has passed a decree for eviction solely on the ground that the tenant has erected on the premises a permanent structure in the sense that a window on the western wall of the premises was closed after it was damaged due to theft resulting in the removal of the window frame itself. The few facts necessary for the disposal of the petition are as under :--

2. The first respondent Moreshwar Kale is the landlord of the premises which consist of gala No. 3 on the ground floor of House No. 107, a chawl at Karjat, Dist. Raigad. The petitioner is a tenant since 1942. The rent of the premises is barely Rs. 6/- p.m. plus educational-cases of Rs. 1.34p.m. The tenant, therefore, pays to the landlord Rs. 7.34 p.m. The premises are used as residential house. On the night between 19th and 20th July, 1976, there was a theft and this resulted in the removal of the window on the western wall of the premises occupied by the petitioner-tenant. The tenant thought it necessary, with a view to having additional safety and security, to close the window.

3. Taking advantage of this development, the landlord issued a notice at Ex. 24 on 28th November, 1976 terminating the tenancy of the tenant on four grounds, viz. (i) erection of a permanent structure without consent of the landlord within the meaning of section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the said Rent Act); (ii) the tenant being guilty of conduct which is nuisance and annoyance to the adjoining or neighbouring occupier within the meaning of section 13(1)(c) of the said Rent Act; (iii) reasonable and bona fide requirement of the landlord within the meaning of section 13(1)(g) and (iv) the tenant having acquired vacant possession of suitable residence within the meaning of section 13(1)(l).

4. The suit was filed on 7th December, 1976 being Reg. Civil Suit No. 74 of 1976. Written Statement at Ex. 21 was filed by the tenant on 30th April, 1979 denying the allegations of the landlord. It was denied that there was erection of any permanent structure on the premises. Other allegations of nuisance, annoyance, bona fide and reasonable requirement and acquisition of suitable alternate premises were also denied. I am not concerned with the last three allegations since the Appeal Court has passed a decree only on the sole ground falling under section 13(1)(b) of the Bombay Rent Act, namely, closure of the window amounting to erection of a permanent structure on the premises.

5. At the trial, the landlord examined himself as P.W. 1. He also led evidence of Parvatibai Godbole P.W. 2, a neighbour in the said chawl and of Hasan Hussain Shaikh P.W. 3, the mason who closed the opening with bricks. The petitioner also examined another neighbour Laxman Hinganekar as D.W. 1. Incidentally he was one of the two panchas for the panchanama at Exh. 43 dated 20th July, 1976 after the theft during the night between 19th and 20th July, 1976.,

6. In view of the above pleadings, necessary issues were framed and the trial Court came to the conclusion that there was no merit in any of the contentions raised by the landlord on the other three points, with which I am not concerned in this petition. Even on the question of erecting a permanent structure, it was held that it was because of the removal of the window frame during the theft that it was necessary for the tenant to close the opening by bricks. The work was carried out by the tenant, since it was necessary for the better enjoyment of the suit premises and in the absence of it, it was dangerous to live in the premises with the opening of 2' x 2'. In the result, the trial Court held that no permanent structure was erected by the tenant within the meaning of Clause (b) of sub-section (1) of section 13 of the Bombay Rent Act so as to justify passing of a decree for eviction in the facts and circumstances of the case. In the result, the learned trial Judge dismissed the suit on 29th December, 1980.

7. Being aggrieved by the said judgment and decree, the landlord preferred Civil Appeal No. 13 of 1981 in the District Court. The only point pressed in the appeal was regarding erection of the alleged permanent structure, namely, closure of the opening of the window which was removed during the theft. The learned Appellate Judge emphasised the fact that the petitioner-tenant had not entered into the witness box and, therefore, he did not see any reason as to why the evidence of the plaintiff regarding permanent structure should be disbelieved. In fact, in para 13 of the judgment, the learned Appellate Judge has observed as under :

"As the defendant Krishna has not entered into the witness box and has not washed off the allegations made by the plaintiff I do not see any reason as to why the evidence of the plaintiff regarding the permanent structure and material alterations done by the defendants, should be disbelieved."
Again in the same para. it has been further observed as under :

"The defendants could have stated the compelling circumstances, by entering into the witness box, stating that the plaintiff did not do anything even after he was informed of the facts."
8. The learned Appellate Judge then referred to the observations of the Hon'ble Supreme Court in the case of Manmohan Das Shah and others v. Bishun Das, reported in MANU/SC/0248/1966 : [1967]1SCR836 . That was a case under the U.P. (Temporary) Control of Rent and Eviction Act (3 of 1947) and the question was as to what is the meaning of the words "material alterations in the accommodation". The learned Appellate Judge also referred to a decision of the Rajasthan High Court and another of the Calcutta High Court as to what is meant by the words "material alterations" and "permanent alterations" and concluded that since the tenant had not entered into the witness box, it cannot be said that there are only minor repairs of insignificant character which were not of voluntary nature. It was, therefore, held that the closure of the opening of 2' x 2' caused by theft during which the window frame was removed amounted to erection of permanent structure within the meaning of section 13(1)(b) of the Rent Act and this justified passing of a decree for eviction. In the result, the Appeal Court allowed the appeal on 22nd March, 1983 and passed a decree for eviction of the petitioner-tenant. It is this judgment which is challenged before me in this writ petition.

9. I have heard both the learned Counsel at some length. The short controversy is as to whether the closure of the opening of 2' x 2' caused by the theft during which the window frame was removed amounts to "erecting a permanent structure on the premises" within the meaning of Clause (b) of sub-section (1) of section 13 of the Rent Act. The said provision, in so far as it is material, reads as under :

"13.(1) : Notwithstanding anything contained in this Act (but subject to the provisions of sections 15 and 15-A) a landlord shall be entitled to recover possession of any premises if the Court is satisfied--

(a) :--

(b) : that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure

(Explanation : For the purposes of this clause, the expression "permanent structure" does not include the carrying out of any work with the permission, wherever necessary, of the local authority for providing a wooden partition, standing cooking platform in kitchen, door, lattice work or opening of a window necessary for ventilation, a false ceiling, installation of air conditioner, an exhaust outlet or a smoke chimney; or)

10. My attention has been invited to the evidence on record by both the learned Counsel. The evidence of the landlord Moreshwar Kale P.W. 1 clearly shows that the opening in the western wall was closed by the tenant. The witness of the landlord, namely, a neighbour in the chawl P.W. 2 Parvatibai Godbole categorically states that a theft had taken place in the tenement of the petitioner-tenant by breaking open the window. The mason P.W. 3 Hassan Shaikh examined by the landlord is clear on the point that the closure was only of the opening of 2' x 2' where the window earlier was. Considered in the background of this evidence led by the landlord, the evidence of D.W. 1 Laxman Hinganekar, another neighbour in the chawl who was examined by the petitioner-tenant, clearly shows that removal of the window frame was during the theft and this is also supported by the panchanama drawn on 20th July, 1976 after the theft. The said panchanama is at Ex. 43. The above evidence clearly indicates that closure of the window was necessitated because of the theft that had taken place in the premises of the tenant and all that has been done is that a small opening of 2' x 2' has been closed by putting bricks and mortar.

11. In the light of the above position, the learned Counsel invited my attention to some of the judgments on the question of erection of permanent structure by tenant as a ground for eviction of the tenant under the Rent Act.

12. Before dealing with the authorities cited by both the learned Counsel, I may first refer to the decision of the Supreme Court in the case of Manmohan Das Shah and others v. Bishun Das, reported in MANU/SC/0248/1966 : [1967]1SCR836 to which a reference has been made by the learned Appellate Judge in para 14 of his judgment. That was a case under U.P. (Temporary) Control of Rent and Eviction Act, 1947. The relevant ground was under section 3(1)(c) of the said U.P. Act where the wording is as under :

"Section 3(1)(c):

(c) : That the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the Court, has materially altered the accommodation or, is likely substantially to diminish its value."

The Supreme Court considered some of the earlier decisions including some English cases on the point and observed that the expression "material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially changed the front or the structure of the premises. This has been so observed in para 7 of the judgment at pages 645-646. Then in para 8 of the judgment at page 646, the Supreme Court observed that lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises.

13. In my view, there is no similarity whatsoever in the facts of the present case and the facts of Manmohan Das Shah's case, before the Supreme Court. Hence, the ratio of the abovementioned Supreme Court judgment, with respect, can have no application whatsoever to the present case. The observations in para 8 of the Supreme Court decision quoted above show that the tenant in that case had indulged in making large scale material alterations as distinguished from closure of an opening of 2' x 2' in the present case and that too when the opening was caused by theft and closure was necessary with a view to securing the safety of the inmates of the house.

14. I may also refer to the Supreme Court decision in the case of Om Prakash v. Amar Singh and another, reported in MANU/SC/0791/1987 : [1987]1SCR968 . That was a case under U.P. Cantonments (Control of Rent and Eviction) Act, (10 of 1952). All that the tenant had done in the said case was that he had constructed a partition wall in the hall and a tin shed in the open Court-yard adjacent to the building. It was held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. The Supreme Court observed that meaning of the words "materially altered" would show that the expression means a substantial change in the character, form and structure of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of essential and important nature. The Supreme Court then referred to its earlier decision in the case of Manmohan Das Shah's case, MANU/SC/0248/1966 : [1967]1SCR836 and observed in para 6 of the judgment at page 619 as under :--

"In determinating the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as inspite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation".
In this view of the matter, the Supreme Court allowed the tenant's appeal and set aside the decree for eviction.

15. Bearing in mind the above guidelines indicated by the Supreme Court, one will have to approach the facts of the present case where all that has been done by the tenant is to close an opening of 2' x 2' which opening was caused by theft that had taken place in the premises. It was more an act of necessity out of a consideration for the safety and security of the inmates of the premises that the tenant thought it proper to have the opening of 2' x 2' closed. The fact that theft had taken place cannot be disputed. Apart from the evidence of Laxman Hinganekar D.W. 1 and panchanama at Ex. 43. Parvatibai Godbole P.W. 1 a resident of the chawl who was examined by the landlord has categorically admitted that there was a theft in the premises. It is true that the first respondent-landlord had feigned ignorance about the theft. That is not surprising. The evidence of the mason P.W. 3 Hassan Hussain Shaikh shows that only bricks and mortar have been used for closing the small opening. Unfortunately, the learned Appellate Judge was disturbed by the fact that the petitioner-tenant had not entered into the witness box. He has said so repeatedly in para 13 of his judgment which I have quoted above and the approach of the learned trial Judge seems to be that if a tenant had not examined himself, though he had led other evidence, the version of the plaintiff could be accepted straightway and should not be dis-believed. It is difficult to appreciate such a general proposition of law and the approach, in my view, is totally erroneous if not perverse. Assuming that, in a given case, the tenant did not examine himself, if the evidence led by the landlord was not enough to substantiate the case sought to be made out by him, his case ought to be rejected. The trial Court rightly thought that decree cannot be passed merely because the tenant did not choose to examine himself by entering into the witness box.

16. Shri Damle, the learned Counsel for the petitioner-tenant has contended that for determining as to what is a permanent structure within the meaning of Clause (b) of sub-section (1) of section 13, one must have regard to the character of the structure, nature of the same and the mode and degree of annexation to the premises. One has also to see what was the intention of the tenant when he put up the said structure or annexation. He contends that the test of removability is not the conclusive test. If the object and purpose of annexation was only to better the enjoyment of the demised premises, such structure cannot necessarily be termed as a "permanent structure". The construction of the work or addition of the work must cause and bring about a substantial improvement and change in the nature and form. In support of this contention, Shri Damle has placed reliance on the following four decisions of this Court viz.:

i) Suka v. Ranchooddas, reported in 1972 MLJ 477. This was a case where the tenant had put up a tin shed for running his shop and because of the theft of his goods, he had constructed a brick and mortar wall towards the right side of his tin shed as protection from theft and also put up a partition wall for storing the goods on the side of the shop. It was held that the walls were small annexures and this was not a case of substantial improvement or permanent structure within the meaning of section 13(1)(b) of the Rent Act.

ii) Alisaheb Abdul Latif Mulla v. Abdul Karim Abdul Rehman Mulla and others, reported in MANU/MH/0325/1981 : AIR1981Bom253 . This was a case where the existing mori in the premises was dug out. The mori area was extended and three purposes for which the single mori was used had been divided into three parts for three purposes namely (i) one for bathing by erection of 6' high wall to provide privacy. (ii) another for washing clothes and (iii) for washing utensils. It was held that extension of mori and erection of wall did not constitute permanent structure because the construction was for better enjoyment and was being put to same use as before.

(iii) Pitambardas Kalyanji Bakotiva v. Dattaji Krishnaji, reported in 1981 Mah.L.J. 290. This was a case where construction was of a kitchen platform. It was held that since the premises were used for residence, this was a reasonable use of the property. Mode and extent of the construction was proper and it was for a better and more complete enjoyment of the demised premises. Hence, the construction of the kitchen platform could not amount to construction of a permanent structure within the meaning of section 13(1)(b) of the Rent Act.

(iv) Ratanlal Ramgopal Agarwal and others v. Messrs. Kurban Husain Gulamali Lahri and another, reported in MANU/MH/0369/1986 : (1986)88BOMLR510 . This was a case where the tenant was required to repair the roof of tin sheets (patra-chat) in order to protect his stock-in-trade lying in the shop premises. Such alterations carried out by the tenant though without the written permission of the landlord were held not to be unreasonable so as to warrant a decree for eviction on the ground under section 13(1)(b) of the Rent Act. In my view, Shri Damle is justified in placing reliance on these decisions.

17. As against the above decisions, Shri Ghaisas, the learned Counsel for the landlord has invited my attention to the following decisions to contend that what the tenant did in the facts of the present case was obviously without the written permission of the landlord and amounted erection of a permanent structure within the meaning of section 13(1)(b) of the Rent Act. Reliance is sought to be placed by Shri Ghaisas on the decision of this Court in the case of Vimalabai w/o Jayant Pawar v. Laxmibai w/o Jaywantrao Nandrekar, reported in MANU/MH/0302/1983 : 1984(1)BomCR177 . This was a case where it was found by the Appeal Court that the roof of the tenement had collapsed in the rainy season and the tenant had constructed a new roof and covered it by marble tiles without obtaining the permission of the landlord. This Court took the view that no case of necessity was made out and what the tenant had done was construction of a totally new roof of permanent character without obtaining the consent of the landlord and was, hence, liable to be evicted under section 13(1)(b) of the Rent Act. I do not think that the ratio of this decision can have any application to the facts of the present case.

18. Shri Ghaisas then invited my attention to another decision of this Court in the case of Shridhar Govind Natu v. Ankush Krishnaji Sawant, reported in A.I.R. 1985 Bom 267. This was a case where a bathroom was constructed in the gallery of the premises without obtaining permission of the landlord. This had resulted in creating additional burden in the gallery and it was found to be harmful to the structure of the building. It was, in these facts, that the Court held that the tenant was liable to be evicted under section P13(1)(b) of the Rent Act. In my view, the ratio of this decision also cannot help the respondent-landlord.

19. My attention was then invited to the decision of the Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand and others, reported in AIR 1993(1) CJ 468. This was a case where the tenant had constructed a wall in the verandah of the demised premises and put up a door which permanently impaired the value and utility of the building. The ground pleaded was under section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 where the wording is as under :

"If the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
The Supreme Court referred to its earlier observations in the case of Omprakash v. Amar Singh and another, reported in MANU/SC/0791/1987 : [1987]1SCR968 (supra) and observed that in determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. In my view, the ratio of the Supreme Court decision in the case of Vipin Kumar is of no assistance to the landlord in the peculiar facts and circumstances of this case.

20. It was also faintly suggested by Shri Ghaisas that this is a petition under Article 227 of the Constitution of India and hence, if the Court of Appeal had come to a conclusion on facts, this Court should not interfere in the limited jurisdiction under Article 227 of the Constitution of India. Reliance is placed on the observations of the Supreme Court in the case of Venkatlal G. Pittie and another v. M/s. Bright Bros., reported in MANU/SC/0824/1987 : [1987]3SCR593 . Head note in the said report reads as under :

"If a proper Court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of construction, the annexation and other relevant factors that the structure erected by the tenant on the demised premises were permanent in nature which were violative of section 13(1)(b) of the Rent Act as well as section 108 Clause (p) of the Transfer of Property Act and such a finding is possible, it cannot be considered to be perverse. In such a situation, the High Court cannot interfere with the finding of the Court under Article 227."
There can be no doubt about the proposition of law laid down by the Supreme Court. However, in my view, in this case, the Appeal Court has approached the problem in a manner which is totally perverse. I have already indicated the approach of the Appeal Court by quoting its observations in para 7 of this judgment. The Appeal Court was un-necessarily disturbed by the fact that the tenant had not entered into the witness box and, therefore, there was no reason to reject the plaintiff's version, regarding the permanent structure and material alternations done by the defendant. In fact, the evidence which was available on record was not even considered by the Appeal Court. The fact of the theft having taken place is clearly established which necessitated closure of the opening of 2' x 2' only for the purpose of better and safer use of the demised premises which were let out for residential purpose. In my view, this is a fit case where this Court should interfere in its jurisdiction under Article 227 of the Constitution. It would result in failure of justice if the petitioner-tenant is to be evicted on such a flimsy ground when all that he did was to close the opening of 2' x 2' causes as a result of the theft and this was done for the purpose of having a better and safer use of the premises. There is no material change in the structure or in the building. The impugned judgment and order is, therefore, wholly unsustainable.

21. In view of the decisions of the Hon'ble Supreme Court and of this Court, my conclusions are as under :

(i) In deciding the question as to what is a "permanent structure", it is necessary to consider the mode and degree of annexation as also the intention of the party putting up the structure. The creation of such a wore or addition thereof in order to amount to a permanent structure must cause and bring about a substantial improvement and change in the nature and form of accommodation.

(ii) If what has been done it by way of minor repairs for the better enjoyment and use of the premises, it cannot be regarded as a permanent structure. Similarly, if the object and purpose of annexation was only to better the mode of enjoyment of the demised premises as in the case of construction of the kitchen platform, it does not amount to a permanent structure within the meaning of section 13(1)(b) of the said Rent Act.

(iii) The essential element which needs consideration is as to whether the construction is substantial in nature and whether it alters the form, front and structure of the accommodation.

(iv) If what the tenant does in large scale renovation like replacement of the entire roof, covering it with marble tiles, without obtaining permission of the landlord, it may amount to permanent structure within the meaning of section 13(1)(b) of the Rent Act.

(v) Similarly, if the tenant constructs a bathroom in the gallery which puts additional burden in the gallery which is harmful to the structure of the building, it would amount to a permanent structure.

22. In view of the above, I am of the opinion that enclosing the opening of 2' x 2' in the window on the western wall of the premises which was damaged due to theft resulting in the removal of the window frame itself, does not amount to erecting on the premised a permanent structure within the meaning of section 13(1)(b) of the said Rent Act.

23. The petition, therefore, succeeds. The judgment and decree dated 22nd March, 1983 passed by the Appeal Court is set aside and the suit filed by the first respondent-landlord is dismissed.

24. Rule made absolute with no order as to costs.




Print Page

No comments:

Post a comment