B.A. Masodkar, J.
1. This is tenant's petition that questions the order made by the appeal Court, directing eviction of the petitioner tenant under section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). That is done on the basis of the finding that the petitioner tenant put and erected a permanent roof covered with Mangalore tiles on the tenanted premises without written permission from the respondent-landlady.
2. In this Court, Mr. Apte, the learned Counsel appearing in support of the petition, argued that in the context of the facts available in the present litigation, section 13(1)(b) of the Act should not have been applied. He submitted that the roof of the tenanted premises was covered with Shahabadi stone and the respondent-landlady was trying to remove it and, therefore, to protect the tenement, the petitioner, tenant had to resort to this construction. As against this, the appeal Court has found that the tenement collapsed in the rainy season and, therefore, except the petitioner-tenant, everyone left the premises and the petitioner-tenant constructed the roof itself and covered it by Mangalore tiles. In the submission of Mr. apte in the very nature of things, the petitioner-tenant was actuated by necessity and for better enjoyment of the tenanted premises and resorted to cover the same by providing for a roof which was according to him, of a temporary character.
3. Now, it is indeed difficult to accept this submission. The findings recorded by the appeal Court clearly go to show that after examining the report of the Court Commissioner and appreciating the evidence, it has been concluded that the petitioner tenant constructed entirely new roof over his tenement and has covered it with Mangalore tiles at the cost of Rs. 600/-. The roof is affixed to the tenement. Looking to the nature of construction of the roof and its attachment to the building, it cannot but be said that the view taken by the appeal Court that it is a permanent structure constructed by the petitioner tenant without permission of the respondent- landlady is reasonable. On that footing, the other submission of the learned Counsel will have to be considered.
4. As the facts found, the requirements of section 13(1)(b) of the Act are fully satisfied and the decree is thus clearly supportable. It is also not in dispute that the petitioner tenant did not resort to issuing of the notice and seeking relief for repairs of the tenanted premises.
5. In the context of this petition, further narrow question is whether the petitioner-tenant can still be protected by reason of the doctrine of necessity? At the outset, it must be observed that when the statutory conditions are satisfied, it is doubtful whether the principles of the doctrine of necessity would still be available to the petitioner-tenant so as to defeat the claim of the respondent-landlady for possession. In this regard, it was faintly submitted that it was the case of the respondent-landlady herself that the tenanted premises were affected, initially, by an earthquake in the year 1967 followed by the heavy rains in the year 1970 and because of this natural calamity, the tenanted premises developed cracks and the structure on the first floor also collapsed. It is further the case of the respondent landlady that when the first storey collapsed, the petitioner-tenant was asked to vacate the premises like the other tenants, who vacated the premises, but the petitioner-tenant refused to vacate and instead constructed the permanent roof. These facts, in the submission of the learned Counsel, suggest the necessity to erect such a construction and, therefore a valid defence to the petitioner-tenant. It must be stated that such a submission is being made for the first time and it cannot be forgotten that the case in defence was one of denial of these facts and alleging that the respondent-landlady had erected a shahabadi stone roof, and in its place the petitioner had constructed a roof which was of a temporary nature. That aspect has been overruled for good reasons.
6. The doctrine of necessity, as a matter of defence, has its root firstly in the principles of fieriness to do justice and, secondly, in the recognition of its availability in English common Law. See (Cope v. Sharpe), (No.2) (1912)1 K.B. 496 And R.V. Bourne (1939) 1 K.B. 687. However that doctrine has no universal or absolute application and even at common law applied as a matter of exception. The doctrine itself is treated to be circumscribed. See Southwark London Borough Council v. Williams (1971) Ch. 734. The question is, whether, in the context of section 13(1)(b) of the Act, which permits the making of a decree for possession, this doctrine could at all have any application? Could this afford to a tenant, who is faced with the situation of having no roof, to construct a roof by himself without following the procedure of law? This is a case where these questions need not be examined.
7. Though the learned Counsel half-heartedly referred to this doctrine of necessity, as far as the stand taken by the petitioner-tenant is concerned, that was not the defence expressly taken up or made out. On the other hand, the defence appears to be one that of mala fide removal of the part of the roof by the respondent-landlady. That could not be equivalent to a defence based on necessity. For invoking the principles of this doctrine the minimum that is necessary is that there should be a specific plea in defence and further a clear proof in its support. As the facts stand, neither there is any specific plea nor is there any definite evidence. The attempt is merely to inter the necessity by reason of the fact that the respondent landlady has stated the structure collapsed and the other tenants vacated. What the petitioner-tenant has done clear enough, is that he erected the roof which is of a permanent character and that too without obtaining consent of the respondent-landlady. No case of necessity is made out nor does the doctrine help the petitioner-tenant.
8. In view of this, the Rule is discharged with no order as to costs.