Shri Subhash Dshala Kinjle Vs Smt. Indra Rani Uggarsen

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 5636 OF 1988

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 Shri Subhash Dhala Kinjle ... Petitioner

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V/s

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 Smt. Indra Rani Uggarsen ... Respondent

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 Mr. N.V. Walawalkar for the petitioner.

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 Mr. R.A. Thorat with A.N. Maniyar for the respondent.

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CORAM: P.V. KAKADE, J.

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DATED: 18TH APRIL, 2006

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ORAL JUDGMENT:

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 1. Heard learned counsel for both sides. Perused the
 record.

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 2. The petitioner has preferred this petition against
 the judgment and order dated 13th October, 1988 passed
 by the lower appellate Court dismissing his appeal and
 confirming the judgment and order passed by the Trial
 Court dated 8th/11th April, 1983 decreeing the suit for
 possession of the suit premises under Sec. 13(1)(b) of
 the Bombay Rent Act.

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 3. The respondent plaintiff filed the suit for
 possession of the suit premises through her constituted
 attorney alleging that the petitioner defendant was
 tenant and without consent and knowledge of the
 plaintiff landlady constructed a loft of permanent
 nature in the rear side of the suit premises i.e. Room
 No. 10, Chawl No.2 in the plaintiff’s property known as
 Indra Colony, situated at Kurar Village, Daftary Road,
 Malad (East), Bombay - 400 064. According to the
 plaintiff, the said loft is embedded in three sides of
 the wall and the said construction caused damages to the
 walls of the suit premises and thereby the defendant was
 not ready and willing to pay the rent and he was in
 arrears of rent since August, 1974. Hence advocate’s
 letter dated 25.11.1974 terminating the tenancy of the
 defendant was issued but it was neither replied to nor
 complied with and hence the suit came to be filed.

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 The defendant challenged the suit inter-alia denying all
 the allegations made by the plaintiff submitting that
 the impugned loft was in the property since the
 beginning of the tenancy and there was no question of
 any new construction being made without permission of
 the landlady.

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 On the basis of the pleadings, issues were settled by
 the Trial Court and the matter was adjudicated on merits
 on the basis of available evidence. The Trial Court
 came to the conclusion that the plaintiff had proved
 that defendant had unauthorisedly constructed a loft of
 a permanent nature in the rear side of the suit premises
 causing damage to the suit premises. It is further held
 by the Trial Court that the plaintiff had proved that
 defendant is guilty of an act of waste. However, it was
 held that defendant was defaulter in payment of rent and
 on such and other grounds, the suit came to be decreed.

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 4. The appeal was carried to the lower appellate Court.
 The lower appellate Court came to the conclusion that
 the defendant had made unauthorised construction of the
 loft in the rear side of the suit premises which had
 also caused damage to the suit property and on that
 count the appeal came to be dismissed. Hence the
 present petition.

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 5. At the outset, it is to be noted that the defendant,
 in the course of his evidence has changed his stance as
 a result of which the record now reflects that it is a
 case sought to be made out by the defendant that he
 admits that the construction was made of the loft in the

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 suit premises and has stated that he had obtained oral
 permission from the plaintiff for construction of the
 same. There is, however, nothing on record to show that
 the defendant had obtained oral permission either from
 the plaintiff landlady or from her husband for
 construction of the loft. In view of this situation,
 there is no doubt thwatosever that the construction was
 made without consent of the landlady and that the
 construction in question is of permanent nature. It is
 also to be noted that the construction is embedded in
 the walls. There is also material on record to show
 that due to such construction the walls are damaged and,
 therefore, I have no doubt whatsoever that both the
 Courts below have recorded correct and concurrent
 findings to the effect that the matter is squarely
 covered by the provision of Sec. 13(1)(b) of the Bombay
 Rent Act.

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 6. The learned counsel for the petitioner submitted
 that the tenor of the Issue No.1 framed by the Trial
 Court show that the Court has framed the issue in fact
 under Sec. 13(1)(a) and not under Sec. 13(1)(b).
 However, I prefer to disagree with this proposition.
 The plain wording of Sec. 13(1)(b) would show that the
 facts revealed from the record are squarely covered by

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 the provisions of Sec. 13(1)(b) even though the Issue
 No.1 framed by the Trial Court mentions the word
 "damage" to the property.

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 7. The learned counsel for the petitioner also
 submitted that the landlady did not enter the witness
 box and therefore adverse inference is required to be
 drawn against her. However, it is to be noted that the
 evidence of landlady’s husband is recorded on her behalf
 and, in my considered view, the evidence of husband of

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 the landlady would be still in better position as for
 all practical purposes he would be a person who is
 looking after the management of the property. No doubt
 that the defendant has tried to submit that construction
 made was within the knowledge of the landlady and,
 therefore, it could be a case of acquiescence on the
 part of the landlady. However, for want of any iota of
 evidence to that effect it cannot be said that it is a
 case of acquiescence by the landlady in making
 construction of the said loft.

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 8. The learned counsel for the petitioner also brought
 to my notice that the lower appellate Court did not
 frame proper point for determination so as to point out
 the correct controversy between the parties. The point

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 in question which was framed by the appellate Court is
 thus :-

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 "Whether the impugned judgment and order of
 the trial Court dated 8th/11th April, 1983 is
 legal and proper ?"

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 The point is answered in the affirmative. It was
 submitted that the point framed by the lower appellate
 Court does not give proper indication as to the scope of
 controversy between the parties. No doubt, it is
 directed that the point for determination framed by the
 lower appellate Court is vague. However, in my
 considered view, it would not be fatal to the appeal and
 certainly would not change the fate of the dispute
 between the parties especially when the body of the
 judgment reveals that both the parties were given
 opportunity to argue the matter. It also reflects the
 application of mind of the lower appellate Court Judge
 to the entire set of evidence regarding disputed facts
 and, therefore, there is no infringement of the
 procedural aspects committed by the lower appellate
 Court. In this regard, reference must be made to the
 ruling of this Court in the case of Genba Sahadu Modak
v/s Suryakant Vitthal Modak & ors., reported in (2006) 1

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A.I.R. Bombay High Court Reports 347, wherein it was

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 held that the appellate Court having each and every
 issue for discussion, appreciating it properly and
 applying his mind to the facts and legal aspects
 involved in the case, then there is material compliance
 with the provisions of order 41 Rule 31 of the Code of
 Civil Procedure and no prejudice is said to be caused to
 the appellant. Under such circumstances, failure to
 formulate detailed points for determination by the lower
 appellate Court would amount to mere irregularity.

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 10. The learned counsel for the respondent brought to
 my notice the Supreme Court ruling in the case of
Venkatlal G. Pittie and anr. v/s M/s. Bright Brothers
(Pvt.) Ltd., reported in AIR 1987 SC 1939, wherein the
 Apex Court has observed that simply because another view
 is possible and on that view a different view is taken,
 it would be interfering under jurisdiction under Art.
 227 of the Constitution of India which would be
 unwarranted. In other words, what is laid down is the
 aspect that if two views are possible from given set of
 circumstances of fact on record and one view is taken by
 the lower Court, then it would not be a fit case for
 interference under Art. 227 of the Constitution of
 India, which, in fact has happened in the present case.

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 On perusal of the judgment of both the Courts below, it
 is apparent that they have chosen to take a particular
 view which is not only possible but also probable on the
 basis of facts and circumstances and, therefore, it
 cannot be said to be perverse especially when the Courts
 below have recorded concurrent findings holding that the

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 tenant has made unauthorized construction without
 consent of the landlady.

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 11. In view of this position, I have no doubt
 whatsoever that the reasoning adopted and finding
 recorded by both the Courts below on the relevant issue
 appears to be just, legal and proper and, therefore, it
 would brook no interference.

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 12. In the result, the petition stands dismissed with
 no order as to costs.

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 13. At this stage, the learned counsel for the
 petitioner sought stay of the abovesaid order. In view
 of the facts and circumstances, the decree for
 possession shall not be executed for the period of 12
 weeks from the date of this order. During the period of
 stay, the petitioner shall not create third party

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 interest in the suit property and shall continue to pay

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 the rent as per the agreement.

Shri Subhash Dshala Kinjle v. Smt. Indra Rani Uggarsen

Case brief

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Shri Subhash Dshala Kinjle v. Smt. Indra Rani Uggarsen

Case brief

What is this about?

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What the court decided

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