TMI Blog1987 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... iterate the relevant facts. The second appellant being plaintiff no. 2 in the Original Suit leased out the premises involved herein being a godown measuring 11,500 sq. ft. at 156 A, Tardeo, Bombay-7. The said premises was given by the landlord to the tenant, the respondent herein-M/s Bright Brothers (Pvt.) Ltd. on lease vide the registered lease dated 14th April, 1947 for a period of ten years commencing from 1st September, 1946. By 1953, the respondent company began to fall into arrears in payment of rent. The respondent-tenant filed an application before the appropriate Rent Court for fixing the standard rent. On 14th June, 1958, the advocate of the second appellant sent a notice to the respondent-tenant calling upon them to pay up the arrears for the period from September, 1956 to May, 1958 (both months inclusive), as well as for earlier arrears of rent of ₹ 20,850. On 1st December, 1958 a second notice was issued on behalf of the original plaintiff no. 1 calling upon the respondent to quit and vacate the premises in question on the grounds, inter alia, (a) unauthorised construction of permanent nature; (b) obstructing roadways; and (c) the damage to walls and floor, and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 8th December, 1965, the appellant made an application for amendment of the plaint to include change of user as an additional ground of eviction. The respondent also made an application for amendment to the effect that permanent structure had been made with the knowledge and consent of the appellant. The said amendments were allowed in December, 1965. On or about 31st March, 1967, the trial court in suit no. 1450/ 8318 of 1959, ordered eviction of the tenant on the ground of permanent construction. Mesne profit from the date of the decree was also ordered. There was an appeal to the appellate bench before the CoUrt of Small Causes and cross appeal being appeal nos. 323 and 629 of 1967. By the judgment delivered on 14th June, 1973, the division bench of the Court of Small Causes confirmed the decree for eviction on the ground of permanent construction and granted eviction on change of user as well in the cross objection filed by the appellant. It also ordered mesne profit from the date of the suit and the monetary claims to the extent of arrears. The High Court on or about 3/4th July, 1979, by judgment and order of the High Court in SCA 2052 and 174 of 1974 under Articles 226 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stanchions into the flooring. it was stated in the deposition that these pillars and stanchions mentioned in the plaint were only those which were the posts supporting the cabins and lofts complained of and none else. These pillars and stanchions went along with the construction of lofts and construction of several rooms, that is cabins. The learned trial court discussed the details and found those cabins marked A, B, C, D, E, F, G, H, I, J, K, L etc. There were lofts marked cabins A, B, C, D, E, F, J, K, other lofts marked as F, G, H and I. The third loft over the cabin at L and the lofts over the portions M N. These were, according to the engineer, an architect, Shri Divecha, who was examined on behalf of the plaintiff, permanent structures. The learned judge examined the plan prepared by the said architect and his deposition. The learned judge was of the view that it was clear from the architect's evidence that lofts A, B, C, D, E, J, K. as well as the lofts over F, G, H and I were meant to carry weight of over 100 Ibs. per sq. ft. and this statement according to the learned judge was not challenged in the cross-examination. The structures over A, B, C, D, E, J. and F.C.H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of the evidence, the learned judge observed that Mr. D'silva had stated that the tenant had requested Mahindra Mahindra for a design of a slotted angle cabin with a loft, that the same was supplied and Mr. D'silva was the designer who did the work. Analysing all these evidence, the learned trial judge came to the conclusion that permanent structures were carried out without the consent in writing of the landlords or either of them. Such permanent structure was outside the tenancy and the landlord had not given any consent. The matter on this issue went up before the appellate court and the appellate court dealt with this again and discussed these allegations. It was pointed out by the appellate court that the allegations were that the appellants had (a) made an opening by demolishing a part of the wall dividing the two portions of the demised premises; (b) constructed lofts in the suit-premises, (c) dug upon the flooring of the premises at various places, (d) sunk in pillars and stanchions into the flooring, (e) constructed several rooms and laid new and permanent floorings in parts of the demised premises at different levels. So far constructing lofts, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no answer could be given. in a slightly different context, before Calcutta High Court in the case of M/s Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar. A.I.R. 1965 Calcutta page 408, Chatterjee, J., one of the judges of the Division Bench observed that the phrase 'permanent structure' for purposes of clause (p) of section 108 of the Transfer of Property Act meant a structure which was capable of lasting till the term of the lease and which was constructed in the view of being built up as was a building. In that context the learned judge observed that a reservoir was not, however, a permanent structure for purposes of clause (p) of section 108 of the Transfer of Property Act. Sen, J. of the same Bench was of the view that no hard and fast tests could be laid down for determining the question whether a particular structure by the tenant was a permanent structure for the purpose of clause (p) of section 108 of the Transfer of Property Act. The answer to the question depended on the facts of each case. Chatterjee, J., however, took the view that where the tenant created a permanent structure in the premises leased to him, as the lease continued in spite of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a conclusion. Judged in the aforesaid light on an analysis of the evidence the trial court as well as the appellate court had held that the structures were permanent. The High Court observed that in judging whether the structures were permanent or not, the following factors should be taken into consideration referring to an unreported decision of Malvankar J. in special civil application No. 121 of 1968. These were (1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irrepairable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) the purpose of erecting the structure is another relevant factor. (6) the nature of the materials used for the structure and (7) lastly the durability of the structure. These were the broad tests. The High Court applied these tests. So had the Trial Court as well as the appellate bench of Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 147. Similarly the evidence of D'silva who was an employee of Mahindra and Mahindra as also of Shri Kirtikar, were discussed. It is not necessary to refer in detail to these evidence. So far as to what extent the factors are structures have been exhaustively referred to in Surya Properties Private Ltd. and others v. Bimalendu Nath Barkar and others (supra) and M/s Surya Properties Private Ltd. v. Bimalendu Nath Sarkar (supra) and in our opinion these lay down correct position in law. As a matter of fact the tenant is no longer carrying on any business there but one Messrs Quality Plastics is carrying on the business. Therefore the original purpose is gone. In this connection reference may be made to Annexure IV appearing at page 428 of the Paper Book which is a letter dated both July, 1964 written by the Concord of India Insurance Company Limited to the Secretary. The Insurance Association of India where it was stated clearly that Bright Brothers Pvt. had shifted to Bhandup as from 29th April, 1963 and at the relevant time, they had only their Administrative Officer there and they were stocking finished goods in the premises in question. Further, they have recently installe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a proper court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures were permanent in nature which were violative of section 13(1)(b) of the Rent Act as well as section 108 clause (p) of Transfer of Property Act and such a finding, is possible, it cannot be considered to be perverse. In such a situation, the High Court could not have and should not have interfered. In India Pipe Fitting Co. v. Fakruddin M.A. Bakar and Anr., [1978] 1 SCR 797, this Court reiterated that the limitation of the Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset the conclusions of facts, however., erroneous these may be. It is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so. That will not be justice administered according to law to which Courts are committed notwithstanding dissertation in season and out of season, about philosophies. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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