1. The defendant is the appellant. The respondents filed the suit for permanent injunction restraining the appellant from making any construction or repairs or any superstructure to the premises bearing No. 4-1-156 situated at Subhash Road, Secunderabad, and also for mandatory injunction directing the defendant to dismantle and remove the construction already made by him on the premises. The trial Court decreed the suit and the appellate Court confirmed the same. Thus the Second Appeal.
2. The admitted facts are that the premises bearing No. 4-1-156 situated at Subhash Road Secunderabad was let out to the appellant and he has been continuing in possession and enjoyment thereof. On November 5, 1975, the roof portion had fallen down and as a consequence the walls also got damaged and door also has fallen. The appellant has put up the door that was fallen down and he also restored the roof to its original position.
3. The case of the respondents is that the appellant did these things without obtaining their prior permission. Therefore, it is unauthorised and unwarranted. According to the respondents, the entire building has been collapsed and the appellant re-constructed the house without their permission which is illegal and unauthorised. Therefore, mandatory and perpetual injunctions for the reliefs referred to above can be granted. That was accepted by the Courts below.
4. In this appeal, Sri Krishnamurthy learned counsel for the appellant contends that the approach of the Courts below is illegal and requires interference in this appeal. According to him, the Ist plaintiff as P.W. 1 admitted in the cross-examination that there is still some roof which has not fallen down. The photographs Exs. A-1 and A-2 show the existence of the condition of the building prior to the filing of the suit and that shows that a part of the roof was existing and the walls have not been collapsed. What all the appellant did was that with a view to make it habitable, he put up the roof and he restored to the position to which the structure was standing and that it is not a material alteration and it is not unauthorised. Though it is his case that he sought for permission and reconstructed but in view of the findings of the Courts below that permission was not given and that by virtue of the definition contained in S.2 (iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as 'the Act') it is a building within the definition of the act and therefore the appellant being admittedly a tenant, entitled to continue in occupation. If that be so no injunction can be granted. Though the respondents have been served with notices on 20-12-1980 and 27-13-80 respectively, neither they appeared personally nor through any counsel. I requested Sri Krishna Murthy, to take me through the entire judgments of the appellate Court and he read them in extenso.
5. Upon the above contentions, the question that arises for consideration is, whether the Courts below are justified in granting mandatory and perpetual injunction agnating the appellant? Admittedly the appellant is the tenant in occupation of the building and according to the respondents, the entire building collapsed on 5-11-1975. P.W. 1 has admitted in the evidence and also has established by Exs. A-1 and A-2 that only part of the roof had collapsed and the walls were also existing. If that be so, then as defined under S.2 (iii) of the Act, a part of the building also is a building with super structure standing thereon. The structure standing in the suit premises thus come within the meaning of definition of S.2 (iii) of the Act. If the landlord requires the premises for reconstruction or alteration, a right is provided under S.12 of the Act to seek permission of the Rent Controller and make alterations. He is also enjoined thereunder to give an undertaking that on reconstruction he shall deliver the property reconstructed to the tenant. The tenancy of the appellant gets deprived only if he contravenes any of the provisions prescribed under S.10 of the Act. Otherwise he has got right to continue in occupation as tenant so long as the building exists. In view of the admission made by P.W. 1 only part of the building has been collapsed. The landlord is under an obligation to effect repairs to the part of the building collapsed due to natural calamities. But on that account he has no right to put an end to the tenancy and the occupation of the tenant cannot be said to be unauthorised or illegal so long as he is not ejected under the provisions of the Act. The putting up of the roofing and the door way without the permission of the landlord as found by the Courts below, it cannot be said to e in transgression of any provision of law. At the most the appellant is forfeited to claim any expenditure he incurred in putting up the superstructure. But that does not disentitle him to continue in possession. a novel theory has been invented to say that the appellant does not continue in occupation of the demised premises and the order of injunction is used as an aid to put an end to the statutory tenancy the appellant has under the Act. Both the Courts have thoroughly misconstrued the scope, power and the jurisdiction of the Court and granted the injunction. It is wholly unwarranted. Accordingly the judgments of both the Courts below are set aside and the suit is dismissed.
Accordingly, the second appeal is allowed, but since the respondent is not appearing in person or through a counsel no costs.
6. Appeal allowed.