Khatri, J.:— The IInd Joint Civil Judge (Junior Division), Jalgaon, passed a decree in favour of the present petitioner (hereinafter, ‘landlords’) for eviction of the respondents (hereinafter, ‘tenants’) under section 13(1)(b) of the Bombay Rent Act (for short, “the Act”) on the ground that the latter had erected a permanent structure on the suit premises without the permission of the landlords in writing. A decree for Rs. 380/- for arrears of rent and mesne profit was also passed. In appeal preferred by the tenants, the District Court reversed the trial Court's decree and dismissed the suit. Now the landlords have come up to this Court under Article 227 of the Constitution challenging the District Court decree.

2. The material facts that are no longer in dispute before me are these: There are in all 4 shops abutting a public road in Jalgaon town. There is common godown adjoining all these four shops in the South. Originally the tenants were holding the western two shops and the entire godown as month to month tenants. The rent per month was Rs. 45-/. On 25th February 1966, the landlords sold the entire godown to the tenants by a registered sale-deed and put them in possession thereof as vendees. On the same day, petitioner No. 2 Shriram Ramgopal Agrawal who was at the material time the Karta of the joint family of the landlords, entered into an agreement with the tenants agreeing to sell all the 4 shops, including the two rented out to the tenants.

3. As the landlords did not execute a registered conveyance pursuant to the aforesaid agreement, the tenants instituted Spl. Civil Suit No. 8 of 1967 against the landlords in the Court of the learned Civil Judge, (Senior Division), Jalgaon for specific performance of the agreement. This suit came to be dismissed on 11th September 1968 on the ground that the agreement entered into by the Karta on behalf of the joint family was not supported by legal necessity. The tenants carried an appeal from this decision to this Court which also came to be dismissed in November 1977. During the course of the hearing of this petition Shri Page for the tenants has informed the Court that they have approached the Supreme Court and their petition for Special Leave to appeal is pending in that Court.

4. During the pendency of the aforesaid litigation, the landlord issued a quit notice to the tenants Exh. 29 on 9th September 1971 demanding arrears of rent for 58 months from 1st November 1966 to 31st August 1971. The landlords also made a grievance that the tenants had erected permanent structures on the tenanted premises without their permission in writing. On these twin grounds, the landlords claim possession of the premises. Here it may be made clear that the premises as indicated in this notice are the ??? shops and the godown behind them. The rent was also demanded at the initial rate of Rs. 45/- per month meant for the two shops as well as the entire godown.

5. The tenants by their reply dated 22nd September 1971 Exh. 32 brought it to the notice of the landlords that after the sale of the godown in their favour, rent for the two shops as such, was not any time fixed by contract between the parties. According to them, the proportionate rent for the two shops premises could not exceed Rs. 20/-. They contended that a sum of Rs. 2483/- was due to them from the landlords on account of the price of goods sold to them and that in accordance with the old practice, this amount was liable to be adjusted towards the arrears of rent if any, claimable by the landlords. According to the tenants, on proper accounting @ Rs. 20/- p.m which would be the maximum rent for the two shops, nothing would be found due from them to the landlords. The tenants candidly admitted to have made certain temprorary alterations in the premises. They justified these works on the ground that they were by way of repairs and undertaken by them as prospective purchasers. They resisted the landlords' claim for eviction on both grounds.

6. The tenants having not complied with the landlords' demand, the latter filed an ejectment suit in the Civil Court, Jalgaon on the above-mentioned two grounds. The tenants raised several defences before the trial Court on the lines indicated above. By their written statement, they also requested the trial Court to fix standard rent.

7. The trial Court fixed the standard rent for the two shops premises at Rs. 20/- per month. It negatived the grounds of non-payment of rent. The other ground, however, found favour with it and it decreed the suit for eviction on that ground. In appeal, the District Court disagreed with the trial Court. According to it, the constructions made by the tenants were of a permanent nature within the meaning of section 13(1)(b) of the Act. It also held that the landlords' claim for arrears of rent stood satisfied in full, by adjustment of the sum of Rs. 2400/- which was due from the tenants on account of price of goods sold by them to the plaintiffs. In the result, it dismissed the landlords' suit with costs.

8. Shri Jahagirdar for the landlords made two principal submissions before me. According to him, the District Court was wrong in holding that the structures erected by the tenants were not of a permanent nature. He pointed out that inasmuch the tenants had failed to pay the arrears of rent or come to Court for fixation of standard rent within one month of service of demand notice on them, the trial Court had no jurisdiction to fix the standard rent. According to the learned Counsel, the arrears should have been computed by the Courts below at the rate of Rs. 45/- per month and the landlords' claim for eviction should have been decreed on both grounds. As against this, Shri Page for the tenants supported the judgment of the District Court.

9. I shall first dispose of the ground under section 13(1)(b) of the Act. The three structures put up by the tenants are: (a) replacement of old wooden shutters in front of the shops by iron shutters; (b) removal of old asbestos partition wall between the two shop premises and substitution thereof by a brick wall and (c) changing the structure of the roof and increasing the height of the northern and the southern walls in the process.

10. The trial Court has found as a fact that the aforesaid wooden shutters had gone utterly rotten, and therefore, needed replacement. The Court also found that the absestos partition wall was just 5 feet in height, and that its substitution by a brick wall did not amount to construction of a permanent structure. So far as the change in the roof is concerned, the trial Court found that originally the roof was sloping Southwards from North. Here it may be recalled that the godown purchased by the tenants lies on the South of the shop premises. The tenants reversed the slope of the roof Northwards. For doing so, they had to increase the height of the northern and the southern walls correspondingly. According to the trial Court this change in the structure of the roof amounted to a permanant structure. Eventually it granted eviction on this ground.

11. In appeal, the District Court came to the conclusion that the change in the roof could not be treated as a permanant structure for more than one reasons. In the first place the tenants were obviously acting as prospective purchasers of the shops under the agreement dated 25th February 1966 The District Court also took note of the fact that in 1970-1971 there were communal riots at Jalgaon. The original roof which was of ordinary sheets had gone rotten, as well as the wooden door shutters. All this made the premises vulnerable to theft and rampage by possible rioters. Thus according to the learned Judge the alterations effected by the tenants were in the nature of repairs.

12. The question whether a particular construction is a permanent structure or not, has to be decided with reference to the nature and situs of the structure, the mode of annexation, the intention of the tenant and all the surrounding circumstances. I need not refer to various authorities which lay down the aforesaid tests, but just one decision of Pendse, J., in 1981 Mah. L.J 290 1(Pitambardas v. Dattaji). The fact that the wooden shutters in front of the shops were rotten and required replacement is not seriously disputed. Apart from the oral evidence of the tenants, there is also a Commissioner's report on record at Exh. 18. One Advocate Chaudhari was appointed as Commissioner by the trial Court to make a report on the condition of the premises. This report states in clear term that the entire construction was old. It also indicates that the tenants were required to repair the Patra Chhat (roof of sheets) in order to protect their stock-in-trade lying in the shop premises. There is no dispute that when all these repairs were going on, the landlords did not raise any objection. It is true that under section 13(1)(b) of the Act, the permission has to be in writing. There is no such written permission in the present case. However, when all the relevant facts are cumulatively taken into consideration, the conclusion of the District Court that the tenants carried out the alterations in the suit premises by way of repairs, cannot be branded as unreasonable. I may again point out that the Commissioner's report Exh. 18 supports the aforesaid conclusion of the District Court. I do not find good justification to distrub the finding that the works carried out by the tenants do not amount to a permanent structure within the meaning of section 13(1)(b) of the Act.

13. The next ground of eviction relied upon by the landlords is the failure of the tenants to pay arrears of rent. It is an admitted position that the parties settled their account on 16th July 1965 and arrears of rent upto 31st October 1966 stood wiped off. Exh. 33 is the counterfoil produced by the landlords themselves which clearly establishes the aforesaid position. It is pertinent to note that at the time of this settlement, the arrears of rent were computed at the rate of Rs. 45/- per month which was the agreed rent for not only the two shop premises, but also the godown adjoining all the four shop premises on the South. It is also pertinent to note that this settlement of the rent upto 31st October 1966 took place on 16th July 1965, that is about 7 months before 25th February 1966 on which date the landlords sold away the entire godown to the tenants for good and also agreed to sell away the four shop premises. Shri Jahagirdar for the landlords relies on this particular settlement to support his submission that the parties had reached a new agreement to accept Rs. 45/- as the rent for the two shop premises only. It is difficult to accept this submission. The sale of the godown which took place in February 1966 was not even in contemplation of the parties in July 1965 when the aforesaid settlement took place. It is rationally impossible to infer from this settlement that the parties had reached a new contract that the rent for the two shop premises would also continue to be Rs. 45/- after February 1966.

14. It is significant to note that by their demand notice Exh. 29 dated 9th September 1971, the landlords do not even remotely aver that Rs. 45/- was agreed to be paid as rent for the two shops only, notwithstanding the sale of the entire godown to the tenants. Indeed the description of the tenanted premises as given in the quit notice includes the godown as well. In their reply Exh. 32, the tenants took a specific stand that the past rent of Rs. 45/- could not continue to be the rent for the two shops only after the sale of the godown to them. In the above circumstances, it is clear that after the sale of the godown to the tenants, the parties never fixed the quantum of the rent payable for the shop oremises alone, by the contract, express or implied. Such a contract cannot be implied from the settlement of July 1965 for the reasons I have already indicated above.

15. The legal position is plain that when part of any tenanted premises (in the present case about 3/4th of the total area) are sold away to the tenants, the previous amount of rent cannot continue to be legally payable for the portion that remains with the tenants as lessees, unless the parties confirmed it by express or implied contract. Proportionate abatement must follow. This position obtains even under the general law, de hors constraints of standard rent arising under rent legislations. In our case the true position is that the parties never revised the rent for the shop premises. Shri Jahagirdar for the landlords relies on the Supreme Court decision reported in (1977) 1 SCC 575 : A.I.R 1976 S.C 2005 2(Harbanslal v. Prabhudas), and the decision of this Court reported in 1985 Mah. L.J 254 3(Chhaganlal v. Narayan Jagannath) for his submission that because of the tenants failure to prefer an application to the trial Court for fixation of standard rent within a month of the service of the demand notice, the trial Court had no jurisdiction to fix standard rent for the shop premises alone. In my humble opinion, the aforesaid rulings do not apply to a case where proportionate abatement of rent is called for, because part of the tenanted premises are sold away in favour of the tenants for good. The Supreme Court decision and the other decisions resting on it are obviously distinguishable on account of this particular factual aspect. The constraint advanced by Shri Jahagirdar, therefore, does not apply to the present case, which squarely attracts section 11(c) of the Act. In the peculiar circumstances of the case, the trial Court was right in entertaining the request of the tenants to fix the standard rent. The position would have been different, had the parties refixed the new rent by contract, express or implied. The correctness of the quantum of standard rent fixed for the shop premises, namely, Rs. 20/- per month is not disputed before me.

16. Further there is concurrent finding of the two Courts below that there was a practice followed by the parties, whereunder the price of goods sold by the tenants to the landlords was adjusted towards the arrears of rent. One has only to refer to the notice Exh. 36 dated 12th August 1969 issued by the tenants to the plaintiffs demanding Rs. 2400/- by way of price of goods sold by them to the landlords, and the reply Exh. 37 given by the latter on 29th August 1969. In their reply, the landlords themselves expressly bank on the aforesaid practice. There is no dispute that the tenants were entitled to recover Rs. 2400/- from the landlords on account of price of good sold. The arrears of rent from November 1966 to August 1971 (demanded by the landlords by their quit notice) at the rate of Rs. 20/- work out to Rs. 1160/-. It is thus clear that on the date of service of the demand notice on the tenants, there were no arrears of rent due from the tenants. On the other hand the tenants had to recover Rs. 1240/- from the landlords. On this state of facts, the inference is inescapable that nothing was due to the landlords from the tenants on account of arrears of rent on the day the demand notice was served on the latter. The Courts below were thus right in holding that the ground of arrears of rent did not enure to the benefit of the landlords.

17. The result of the aforesaid discussion is that the landlords have failed to make out either of the grounds of eviction against the tenants. They are not entitled to get possession of the shop premises. The decision of the District Court does not deserve any interference. This petition is accordingly dismissed. Rule discharged. In the circumstances of the case, there will be no order as to costs.

Petition dismissed.