1. By this petition filed under Article 227 of the Constitution of India, the petitioner-tenant is challenging the legality of the judgment dated June 29, 1976 passed by the Joint Judge. Poona, confirming the decree of eviction dated Jan. 30, 1974 passed by the Additional Judge of the Small Causes Court at Poona.
2. The respondent is the owner of House No. 768, Budhwar Peth. Poona. and the residential premises on the second floor of this house ars let out to the petitioner. The landlord is in occupation of the first floor, just below the premises occupied by the netitioner. The landlord instituted suit for recovery of possession on Nov. 13, 1972 in the Court of Small Causes at Poona under Section 13(1)(a) and (b) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Act'). The gravamen of the allegation made by the landlord is that the petitioner has constructed a kitchen platform in the premises let out to him without prior permission of the respondent, given in writing, and such construction has resulted into damage or waste to the building. It is not in dispute that the petitioner has constructed a kitchen platform admeasuring 2 1/2' in height, 3' in length and 1 1/2' in breadth in the demised premises. The respondent claims that due to the weight of the kitchen platform, the patai (wooden plank) of the premises below the platform fell down in the last week of October 1972. It is also claimed that Shahabad pavement o the ceiling in the premises of the landlord was also damaged to some extent.
3. The suit was resisted by the petitioner, inter alia, claiming that the kitchen platform was constructed 6 to 7 years prior to the institution of the suit. The petitioner admitted that no written consent was obtained prior to the construction, but submitted that the construction of the kitchen platform does not amount to a permanent structure attracting the provisions of Section 13(1)(b) of the Act. The petitioner denied that the patai eave wav due to the weight of the ota, but claimed that the water from the Mori near the platform used to leak and that has resulted into the patai giving way. On these pleadings, the parties went to the trial and the trial Court, after recording the evidence, came to the conclusion that the construction of the kitchen platform is not a permanent structure and the landlord would not be entitled to a decree of eviction on that ground. The trial Court held that the claim of the petitioner that the patai fell down because of the water leaking through the mori is false and the construction of the kitchen platform did result into damage in the plaintiff's property and the respondent is entitled to decree of eviction on that count. In appeal carried before the District Court, Poona, the learned Joint Judge confirmed the decree of eviction both on the ground that the construction of kitchen platform amounts to the erection of a permanent structure and such construction was an act contrary to the provisions of Clause (o) of Section 108 of the T. P. Act. 1882. The judgments of the two Courts below are under challenge in this petition.
4. Shri Abhyankar, the learned counsel appearing in support of the petition, submitted that the view taken by the lower appellate Court that the construction of kitchen platform amounts to erection of a permanent structure is entirely incorrect. Section 13(1)(b) of the Act provides that a landlord shall be entitled to recover possession if the Court is satisfied that the tenant has without the landlord's consent, given in writing, erected on the premises any permanent structure. It is not in dispute that the tenant had not secured prior consent in writing before constructing the kitchen platform. The question which arises for determination is whether the construction of the kitchen platform amounts to a permanent structure. The question whether the structure is of a permanent character or not must depend upon the facts of every case. There can be no rigid or hard and fast rule or formula denning a permanent structure, but there are certain factors which are required to be taken into consideration to determine whether a structure is of a permanent character. The nature of the structure and the purpose of annexation of the intention of the party in putting up the structure are two important factors to be considered to answer the issue.
5. Shri Agarwal, the learned counsel appearing on behalf of the landlord, invited my attention to the decision of the Gujarat High Court in the case of Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad reported in : AIR1965Guj152 . The Gujarat High Court observed that the Legislature has provided an objective test in using the expression 'permanent structure' and therefore, what is relevant to be considered is only the nature of the structure and the nature of material used and the manner in which the structure is erected. The Gujarat High Court observed that the intention of the tenant in putting up a structure is wholly irrelevant. In my judgment, it is not possible to reject the test of purpose of annexation. The fact that the annexation is intended for a short duration or that the annexation is made for the better enjoyment of the demised premises cannot be completely overlooked. The mere fact that the tenant would always assert that his intention is to use the annexation temporarily is no answer to hold that that intention should be completely ruled out. The intention can be gathered from the mode and decree of annexation, the nature of the structure and the surrounding circumstances and is not dependant on the mere assertion or denial of interested parties. The Gujarat High Court in a later decision in the case of Patel Ishwarbhai Lallubhai v. Patel Parshottam Ranchhodbhai reported in (1967) 8 G LR 665 has explained the earlier decision and has applied the test of intention to determine the character of the structure.
6. Shri Abhyankar placed reliance upon the decision of this Court in the case of Dharsibhai Panachand Shah v. Samaratbai Lalchand Shah reported in : (1978)80BOMLR586 . The judgment did take the view that the construction of a kitchen platform could never in law be considered as a permanent structure. Shri Abhyankar also placed reliance on some unreported decisions of this Court in support of his contention that the construction of a kitchen platform would not amount to an erection of a permanent structure. The first decision is dated January 25/28, 1972 delivered by Shri Justice Malvankar in Spl. Civil Appln. No. 121 of 1968. The learned Judge took the view that the construction of a kitchen platform is not permanent structure. The decision in Spl. Civil Appln. No. 743 of 1969 decided on January 25, 1974 also takes the identical view. In my judgment, the question as to whether a particular construction is a permanent structure must be decided with reference to the nature and the situs of the structure, the mode of annexation, the intention of the tenant and all the surrounding circumstances. The test of removability is not the conclusive test. If the structure can be removed without doing irreparable damage to the demised premises, then that would be certainly one of the circumstance to be considered for deciding the question of intention. If the object and purpose of annexation was only for better or more complete enjoyment of the demised premises, such a structure cannot be treated as a permanent structure. It is also necessary to consider in this connection whether the structure brings about a substantial change in the character of the demised premises.
7. In the present case, Shri Agarwal submits that the construction is made in brick, cement and sand and the ton of the platform is of Shahabad floor. Taking into consideration the measurement of the platform and the fact that the kitchen platform is an essential requirement of the modern day living, in my judgment, the construction of a kitchen platform cannot be held to be a permanent structure to attract the provisions of Section 13(1)(b) of the Act. In this connection, it must be noted that of her tenants in the premises and the landlord also have erected kitchen platform in their respective premises. In my judgment the trial Court was right in relying upon the judgment of this Court and holding that the construction of a kitchen platform is not a permanent structure within the meaning of Section 13(1)(b) of the Act, and the lower appellate Court was clearly in error in reversing the finding of the trial Court
8. Shri Abhyankar then submitted that the two Courts below were in error in passing the decree of eviction against the tenant on the ground that the tenant has committed an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Section 13(1)(b) of the Act provides that if the tenant commits an act contrary to the provisions of Clause (o) of Section 108 of the T. P. Act. 1882, then the landlord shall be entitled to recover possession. Section 108 of the T. P. Act defines rights and liabilities of the lessor and lessee and Section 108(o) provides:
'that the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, or pull down or damage the buildings belonging to the lessor or work mines or quarries not open when the lease was granted, or commit any other act which is destructive Or permanently injurious thereto.'
The sub-section demands that the lesseemust use the property as a person ofordinary prudence and shall not commitany act which should damage or causewaste to the building of the lessor. Thesub-section confers an obligation on the lessee not tocommit any voluntary acts which wouldresult into damage or waste of the property. In this connection a referencecan be usefully made to a passage fromHalsbury's Laws of England, SecondEdition, Vol. 20. page 196:
'213. Waste is either voluntary or permissive. Voluntary waste implies the doing of some act which tends to the destruction of the premises, as by pulling down houses, or removing fixtures; or to the changing of their nature, as the conversion of pasture land into arable, or pulling down buildings and erecting new buildings, even though of greater value. Permissive waste implies an omission whereby damage results to the premises, where, for instance, houses are suffered to fall into decay.
But to constitute voluntary waste bv destruction of the premises, the destruction must be wilful or negligent it is not waste if the premises are destroyed in the course of reasonable user, and any user is reasonable if it is for a purpose for which the property was intended to be used, and if the mode and extent of the user is apparently proper, having regard to the nature of the property and what the tenant knows of it, and in the case of business premises, to what, as an ordinary businessman, he ought to know of it.'
Woodfall on Landlord and Tenant also cites the same passage with approval in connection with the liability for waste.
9. Shri Abhvankar submits that before the liability arises under Section 13(1)(a) of the Act, it must be established that the tenant has committed a voluntary act which has resulted into damage or waste of the property. The voluntary act may be either wilful or negligent action on the Dart of the lessee. Shri Abhyankar submits that in the present case, it is not the case of the landlord that the kitchen platform was erected with an intention to cause damage to the premises of the landlord. Shri Abhvankar did not dispute the concurrent finding of facts recorded by the two Courts below that the act of tenant in constructing kitchen platform has resulted into damage to the property. Shri Abhvankar submits that no decree of eviction can be passed against the tenant unless it is established that the action of the tenant was not of a reasonable and prudent man or the tenant has done the act in spite of the knowledge that such act would result into damage or waste of the property. The submission of Shri Abhvankar is of considerable merit. It is not every act done by the tenant which would amount to breach of Section 108(o) of the Transfer of Property Act merely because some change or waste is suffered by the premises. An act which a person of ordinary prudence using his own property would commit is not waste although it damages the property. The act of the lessee is reasonable provided it is for the purpose for which the property was intended to be used. The premises are leased for the purpose of residence and a kitchen platform is erected for the better enjoyment of the estate. The mere fact that such act has resulted into some damage to the building would not entitle the lessor to complain that provisions of Section 108(o) of the Act are contravened. It must further be established that the act of the tenant was not that of a reasonable and prudent man.
10. In this connection, Shri Abhyankar invited my attention to a decision in the case of Saner v. Bilton reported in (1878) 7 Ch. D. 815. It was held in that case that an injury to or the destruction of demised premises, resulting from the use of them by the tenant in a reasonable and proper manner having regard to the class of tenement to which they belong, is not waste. A warehouse was leased for storing grain. After some duration, a beam which supported one of the floors gave way and ultimately the external walls sank and bulged outwards, and the lessor was required to spend a large sum in repairing the premises, In an action by the lessor to recover from the lessee what he had expended, it was held that the lessee had not been guilty of waste, on the principle that the use by the lessee was reasonable and proper having regard to the class of tenement. The decision of the Chancery Division was followed in a latter decision in the case of the Manchester Bonded Warehouse Co. Ltd. v. Carr, reported in (1880) 5 CPD 507 by the Judges of the Common Pleas Division. In that case, the plaintiffs demised to the defendant certain floors in a warehouse for 7 years and the lessee covenanted to repair, maintain, and keep the inside of the premises in good and tenantable repair and condition. The defendant-lessee sublet some of the floors without the written consent of the plaintiffs. The sub-lessees put a quantity of floor into one of the upper storeys and, in fact, overloaded it, in consentience of which, the whole building fell. The plaintiffs rebuilt it and lodged a claim against the defendant for damages occasioned by the fall. The defendant disputed the liability and Lord Coleridge. Chief Justice, while dealing with that question observed as follows:
'Fourthly-- We have to consider whether the defendant is liable for the fall of the building, This covenant to repair the demised premises clearly is not extensive enough to render him liable to rebuild the whole warehouse; but itwas contended that as he or his undertenants in fact overloaded the building and caused its fall, he is liable to rebuild it, although there may be no ex-Dress covenant On his cart binding him so to do. It was contended that he was liable for waste and destruction, and it was argued that whenever a tenant actually destroys the property demised he must restore it or compensate his landlord for its loss, unless, of course, in cases where destruction is contemplated, as in mines and quarries. We have no doubt that this contention is well founded where the destruction is wilful or negligent; but there is no authority to show that it applies to destruction by using the property demised in what was apparently a reasonable and proper manner, having regard to its character and to the purposes for which it was intended to be used. On the other hand, this-very Question had to be considered by Mr. Justice Fry in Saner v. Billon, and he came to the conclusion that in such a case the tenant was not liable for the destruction of the property. The question in these cases is whether it is the tenant's duty to ascertain what he can do with safety to the property, or whether he is not entitled to assume that it is fit to be used for the purposes for which it is let and for which it is apparently fit. We are of opinion that the latter is the true view, and that, in the absence of an express agreement to that effect, a tenant is not liable for the destruction of the property let to him if such destruction is in fact due to nothing more than a reasonable use of the property, and any use of it is in our opinion reasonable provided it is for a purpose for which the property was intended to be used, and provided the mode and extent of the user was apparently proper, having regard to the nature of the property and to what the tenant knew of it and to what as an ordinary businessman he ought to have known of it. To hold a tenant liable for the destruction of the property by its reasonable use as above explained, would be to hold him liable for latent faults and defects in the property demised. We are of opinion that he is not liable for such faults and defects, in the absence of some express agreement on his part imposing such liability upon him.'
The two decisions of the English Courts were approved by Mr. Justice Beaman in a judgment in the case of Doongersey Lakhmidas v. Keshavji Meghaji & Co. reported in : AIR1917Bom34 . In the case before Mr. Justice Beaman, a godown was let out and the lessees stacked rice bags against its four walls and out of the four doors of the godown in the northern wall only one at each end could be opened while the other two doors could not be opened as the rice bags were stacked right against the said doors. By reason of such excessive and improper storage and on account of the weight of the rice bags, the southern wall of the godown gave way and fell along with some rice bags on and against the wall of the neighbouring godown. The plaintiffs carried out the repairs and then instituted claim against the defendants for damages. Mr. Justice Beaman while dismissing the suit, observed that in order to succeed the plaintiff must satisfy the Court that the defendant has committed voluntary waste, that is to say, he has not used the demised premises in a fair, reasonable and tenantable way. The learned Judge approved the observations made in the two English cases noted hereinabove. The principle laid down by these three cases is also approved by the Madras High Court in the case of P. Damodararn v. K. Loganathe Chettiar reported in AIR 1956 Mad 54.
11. From these decisions, it is clear that before decree of eviction is passed under Section 13(1)(a) of the Act, it must be established that damage or waste was caused to the premises either because of act of wilful destruction or negligence of tenant. The provisions of Section 108(o) of the T. P. Act are not contravened if the premises are damaged in the course of reasonable user and user is reasonable if it is for a purpose for which the property was intended to be used. The act done by the lessee would amount to wilful destruction if it is done with the intention of knowledge that such user would damage the property. The knowledge could be attributed to the lessee provided the defects in the property are patent and not latent. In either of the cases, the damage or waste to the premises could be described as voluntary. Neither the fact of the damage nor the evidence that act of lessee has resulted into damage is sufficient to warrant a conclusion that Section 108(o) of Transfer of Property Act is breached, but the proof that the act which caused the damage was voluntary is necessary.
12. Applying the test to the facts of the case in hand, it is obvious that decree of eviction under Section 13(1)(a) of the Act cannot be sustained. The tenant has not constructed kitchen platform with an intention to cause damage to the demised premises or the other part of the building. Shri Agarwal submits that the damage was voluntary because the tenant was conscious that the building was old and the floor could not stand the load of construction. It is true, the building is old but there is nothing to hold that there was any defect in the flooring or the tenant was aware of the same. The knowledge that construction of Kitchen platform would cause damage can be attributed to the petitioner provided the defect in the building was patent and could be seen with naked eve. The construction made by the petitioner was a reasonable use of the property, the premises being leased for the purpose of residence. The mode and extent of the construction was apparently proper and, therefore, the action of the petitioner was not that of an unreasonable and imprudent man. The submission of Shri Agarwal that the consequences flowing from the act of the tenant are conclusive to determine whether the provisions of Section 108(o) of the T. P. Act are contravened, cannot be accepted. In my judgment, both the Courts below were in error in holding that the provisions of Section 13(1)(a) of the Act were attracted and the petitioner is liable to be evicted.
13. Accordingly, the petition succeeds and the rule is made absolute and the decree passed by the Joint Judge, Poona, on June 29, 1976 and that by the Additional Judge. Small Cause Court at Poona on Jan. 30, 1974 are set aside as far as the claim for recovery of possession is concerned. In the circumstances of the case, there will be no order as to costs.
14. Petition allowed.