Sau. Suman Ramesh Samant v. Arun R. Patil

1. The Civil Revision Application is filed under section 115 of the Civil Procedure Code, 1908 (‘CPC’ for short) by original Plaintiff/landlady against Respondent/original Defendant/tenant, challenging the judgment and decree dated 22/09/2006 passed by 3rd Ad-hoc Additional District Judge, Kalyan in Civil Appeal No. 44 of 2003. Under the said impugned judgment and decree, the Appeal filed by Respondent/tenant was allowed, thereby akn 1 setting aside the judgment and decree dated 15/02/2003 passed by 3rd Joint Civil Judge, Junior Division, Kalyan in RCS/797/1996, thereby dismissing the said suit. The Trial Court had decreed the suit by directing the Respondent to hand over possession of the suit premises. This eviction decree is reversed by the Appeal Court.

2. The Applicant / landlady filed the said suit under provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“the Bombay Rent Act’ for short) seeking eviction of the Respondent on the grounds of damages to the suit premises and for not using it with care under section 13(1)(a) of the Bombay Rent Act being contravention of section 108(o) of the Transfer of Property Act, 1882, erection of permanent structure under section 13(1)(b), nuisance under section 13(1)(c), change of user under section 13(1)(k) and reasonable and bonafide requirement under section 13(1)(g) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (‘Bombay Rent Act’ for short)

3. The area admeasuring 2546 sq.ft on the first floor of the building known as ‘Avadhoot Chintan’ situated at Rajaji Path, Dombivali (E) is the suit premises.

4. The Applicant/landlady contended that the Respondent was inducted as tenant of the suit premises on monthly rent of Rs.1,145/-. Initially area of two rooms admeasuring 400 sq.ft. was given to Respondent for residential use and remaining area of 2146 sq.ft. was given to run a hospital. She contended that Respondent has not been using suit premises with due care and has damaged the same. She contended that Respondent has demolished walls of the suit premises and taken out plaster of the walls, fixed tiles creating cracks to the other walls and has fixed water tank as well as airakn 2 conditioning machine by puncturing the slab and walls. She contended that Respondent changed the construction of internal rooms. She contended that these alterations amount to permanent structure carried out without her permission or permission of the local Municipal Corporation. She contended that the water from the water tank flows creating unhygienic atmosphere. She contended that doors and windows are removed and flooring has been demolished. She contended that Respondent is creating nuisance by keeping the hospital premises in unhygienic condition by throwing medical waste such as needles, blood stained cotton and waste. She contended that visitors to the hospital create noise and behave in indecent manner creating nuisance. She contended that the terrace of the building has been illegally broken open and is being used by ward boys and Ayas for objectionable and indecent purposes. She contended that Respondent has illegally converted rooms given for residence into hospital thereby committing illegal change of user. She contended that she bona fide requires the suit premises for her own use and occupation for starting institute of commercial training. She submitted that she does not have financial capacity to purchase new premises, however, Respondent is a medical practitioner and can easily afford other premises. She therefore claimed greater hardship.

5. The Respondent filed written statement resisting the suit. He submitted that by paying huge sum towards construction loan, he has taken suit premises on rental basis and he has been using the same with care and caution. He denied damages to the suit premises. He submitted that when suit premises were taken on rent, there were heavy leakages in the walls and in order to protect further damage, he had fixed tiles. He denied carrying out permanent construction. He contended that he is running a hospital in the name of Sanjivani Surgical and Maternity Hospital in the suit premises akn 3 and considering the nature of profession, he has to keep the suit premises clean and tidy. He contended that he was required to fix tiles and air condition for making part of suit premises as ICCU for which he got rooms repaired. He submitted that Applicant was called upon to make necessary repairs but it was not complied. He denied creating nuisance. He denied that visitors to the hospital create noise and also denied use of terrace by ward boys and Ayas as alleged. He contended that Applicant's son had assaulted some of his staff members and therefore he was required to file police complaint. He denied illegal change of user. He contended that Applicant has got possession of a room at ground floor, possession of a gala and three rooms adjoining her own flat on the second floor from various tenants and therefore the requirement is not bona-fide. He contended that Applicant has made unauthorized construction on the back side of the building thereby obstructing free movement of Respondent and his patients.

6. The learned Trial Court framed various issues and decreed the suit on the ground of damage to the suit premises as well as on the ground of permanent structure without permission of the landlady. Rest of the grounds were held in favor of the Respondent/tenant. The Respondent filed Appeal in the District Court and challenged the decree of eviction. The Appellate Court after framing various points for consideration has reversed the findings on the ground of damage to suit premises as well as erection of permanent structure and has confirmed findings on other grounds. Thus the Appeal Court has held all grounds against Applicant thereby dismissing the suit.

7. In these circumstances the Applicant/landlady is before this Court challenging the differing judgments on the ground of damage to the suit akn 4 premises as well as erection of permanent structure i.e. 13(1)(a) and 13(1) (b) of the Bombay Rent Act and against concurrent findings about other grounds u/s 13(1)(c), 13(1)(g) and 13(1)(k) of the Bombay Rent Act.

RIVAL SUBMISSIONS

8. Learned Counsel Ms. Walimbe appearing for the Applicant/landlady submitted that the admissions of the Respondent/tenant has been considered perversely by the Appeal Court. She submitted that Clause 5 of the lease document dated 10.02.1980 whereunder changes in suit premises from residential into hospital purpose was permitted, has been perversely appreciated. She submitted that the aspect of local Municipal Corporation sending notice to the Respondent about illegal construction has not been considered by the Appeal Court in proper perspective. She submitted that landlady being the best judge of her requirements still requires the suit premises as she has two sons, one son being married and other being unmarried. She relied upon the judgement of Somnath Tukaram Kuber versus Meghraj Medeppa Kadali (Writ Petition No. 5547 of 1998 Judgment dated 07.08.2025) to contend that even without filing cross objections, the Applicant/Landlady could challenge the findings of the Trial Court in Appeal filed by Respondent. She relied upon judgment of Hon’ble Supreme Court in Anil Joginder Sachdev and Another versus Balasaheb Hiralal Zad and Another [(2024) SCC OnLine Bom 2961] to support her contention about construction of permanent structure without permission of landlady and permission of the Municipal Corporation.

9. On the other hand, Mr. Hegde, learned Senior Advocate appearing for the Respondent submitted that Clause 5 of the lease agreement clearly permitted the Respondent to make necessary changes in the residential akn 5 portion of the suit premises for converting it into hospital and Applicant's No Objection Certificate (NOC) is already given under said clause. He submitted that it has come on record that the condition of the building was such that it was not plastered from outside and it was necessary to put tiles to prevent leakage. He submitted that the alleged permanent construction carried out by Respondent has not diminished the value of the suit premises and therefore, it cannot be taken as a ground for eviction. Inviting the Court's attention to the evidence appreciated by the Appeal Court, it is contended that Appeal Court was justified in rejecting the case of the Applicant on all grounds. He submitted that concurrent findings of fact about change of user, nuisance and bonafide requirements should not be interfered in the limited available jurisdiction u/s. 115 of the CPC. He submitted that the permission of Municipal Corporation was not required for the ‘internal changes’ made by the Respondent and Section 108 of the Transfer of Property Act is subject to ‘contract to contrary’ and therefore, the alleged damages to the suit premises has to be considered in the light of permission given by landlady under Clause 5 of the lease agreement. He submitted that none of the alleged permanent structure or construction is destructive or permanently injurious to the building and therefore, no case for eviction on the said ground is made out.

10. Mr. Hegde further submitted that the landlady who has consented for converting residential portion into hospital by making suitable changes is estopped from contending both ‘change of user’ as well as ‘permanent structure’. He submitted that construction carried out by the Respondent is for better enjoyment of the suit premises and even if Municipal Corporation had issued notice, no action was taken thereon and therefore no interference is required in the impugned order. He relied upon the explanation to section akn 6 13(1)(b) of the Bombay Rent Act to contend that the expression ‘permanent structure’ does not include any work with the permission of local authority, if necessary, for providing door, opening of window necessary for ventilation, false ceiling, installation of air-conditioner etc.

REASONS AND CONCLUSIONS

11. I have considered the rival submissions carefully and perused the record. So far as the ground of bonafide requirement is concerned, both the Courts have concurrently held that The Applicant/landlady had already got one big room on the ground floor from one tenant Mr. Patel, two more tenants - Mr. Vasekar and Mr. Sardarji have vacated tenanted premises, another tenant Mr. Thakur has also vacated three rooms adjoining the flat of Applicant/landlady on second floor and it has come on record that the family of the Applicant is in possession of about 800 to 1000 sq.ft area already on the second floor. It has come on record that Applicant has admitted that one room on the ground floor is lying vacant and even prior to filing suit, possession of two rooms from tenants - Mr. Patel and Mr. Sardarji was obtained. With such evidence on the record, I do not find that the conclusion drawn by both the Courts below requires any interference. It is most probable finding based on material evidence.

12. So far as the ground of change of user is concerned, Clause 5 of the lease agreement itself permits the Respondent/tenant to convert the residential portion of suit premises into hospital by making suitable changes. In that view of the matter, the conclusion drawn by the Courts below that no case of change of user is made out is also most probable one, based on evidence on the record. Therefore, it does not require any interference. Same is the case with the ground of nuisance, in as much as, the Courts akn 7 below have concurrently held that the allegations of nuisance and its denial is ‘word against word’ and there is no cogent evidence to indicate any use of terrace by ward boys and Ayas for indecent purpose. The Applicant has not examined any tenant or independent witness to show that medical waste is being thrown, creating nuisance. In that view of the matter, even the ground of nuisance does not require any interference.

13. Now, coming to the bone of contention between the parties or the apple of discord, as they call it classically, it is in respect of the grounds of permanent structure under section 13(1)(b) and damage to suit premises as contemplated under section 13(1)(a) of the Bombay Rent Act, for committing acts contrary to section 108(o) of the Transfer of Property Act,