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A.C. Bhandary Vs. V.S.J. Lobo - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1032 of 1985
Judge
Reported inAIR1986Kant241; ILR1986KAR929
ActsKarnataka Rent Control Act - Sections 21(1)
AppellantA.C. Bhandary
RespondentV.S.J. Lobo
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateT.S. Pai and ;Radesh Prabhu, Advs.
Excerpt:
.....that on the admitted facts this court should decide whether a structure erected with destructible material like plywood would constitute erection of a permanent structure.order1. this is a tenant's revision petition against the order of the learned district judge, dakshina kannada, mangalore, dated 17-1-1985 made in c.r.p. no. 73/83. that revision before the district judge was filed against the order of the learned munsiff, mangalore, in h.r.c. no. 96/74, on his file, filed by the landlord-respondent under s. 21(l)(a) and (c) of the karnataka rent control act, 1961 (hereinafter referred to as the 'act') ordering eviction of the tenant petitioner on the ground that he had erected a permanent structure in the leased premises without the written consent of the landlord as required by law. the district judge has confirmed it. therefore, the present revision under section 115 of the c.p.c.2. this court, while exercising jurisdiction under s. 115 c.p.c., will.....
Judgment:
ORDER

1. This is a tenant's revision petition against the order of the learned District Judge, Dakshina Kannada, Mangalore, dated 17-1-1985 made in C.R.P. No. 73/83. That Revision before the District Judge was filed against the order of the learned Munsiff, Mangalore, in H.R.C. No. 96/74, on his file, filed by the landlord-respondent under S. 21(l)(a) and (c) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act') ordering eviction of the tenant petitioner on the ground that he had erected a permanent structure in the leased premises without the written consent of the landlord as required by law. The District Judge has confirmed it. Therefore, the present Revision under Section 115 of the C.P.C.

2. This Court, while exercising jurisdiction under S. 115 C.P.C., will not act as a Court of Appeal or sift through the material that is in evidence once over again and come to a different conclusion. Therefore, on that account alone this Court must refuse to exercise its jurisdiction.

3. However, Sri U. L. Narayana Rao, learned Counsel for the tenant-Revision Petitioner strenuously contended that on the admitted facts this Court should decide whether a structure erected with destructible material like plywood would constitute erection of a permanent structure. What is not disputed in this case is that the tenant who is the occupant of a Hall to run his Commerce Institute on the first floor of the premises in question, as lessee, has erected using ply-wood and other timber a small room which he uses as office of the Institute and which is blocking the passage that leads to the rear terrace of the building on the first floor. In other words, what is admitted that he has created additional accommodation of a type which was not intended under the terms of the lease apart from interfering with the access that was available to all users of the rear terrace. In such a situation it will not be difficult for the Court to reach a conclusion whether a structure is a permanent structure or not as long as the intention is clear to use, such structural alteration reasonably for a long period. The fact that destructible material was used to create such a structural change, does not, in my opinion, render such a structure any the less permanent. In fact, there is no structural building material which can claim absolute permanency. Even a concrete wall made of cement, can be destroyed by using appropriate instrument. A brick-wall can be bulldozed. A ply-board can be burnt. Type of the material used coupled with the intention of the maker of the alteration would be a more rational test than the test for deciding the permanent structure merely on the material used.

4. I, therefore, see no reason to find fault with the reasoning of the District Judge in confirming the order of the Munsiff. This is not a, case for interference.

5. It is represented by Sri U. L. Narayana Rao, that the Commerce Course for the academic year 1985-86 has already commenced and about hundred students will be thrown out on the streets if this Court were not to grant sufficient time for the tenant to vacate the premises. Mr. Tukaram S. Pai appearing for the landlord has no objection for this Court to give reasonable time. In the finites of things, this Court is of the, opinion that the reasonable time would be till the end of the present academic year. Therefore, the time given by the learned District Judge is extended to mean that the tenant shall vacate and deliver vacant possession of the premises on or before 31st March 1986.

6. This Petition is dismissed subject to the extension of time.

7. Order accordingly.


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