JUDGMENT
Bhimrao N. Naik, J.
1. This is a petition field by the landlord under Article 227 of the Constitution whereby he has challenged the dismissal of his suit by the learned II Extra Assistant Judge, Pune dated 25th August, 1981, in Civil Appeal No. 551 of 1979.
2. Few facts which are relevant for the purpose of this petition are as follows:
The petitioner field Civil Suit No. 51 of 1975 in the Court of Civil Judge, Junior Division, Daund, for possession on the ground of arrears of rent or non-paymnet of rent, secondly on the ground of sub-letting and thirdly on the ground of carrying on permanent construction of Bhatti {oven) in the suit premises and replacing the door and ventilator by fixing at its place a rolling shutter. The learned Judge delivered his judgment and order on 31st August, 1979 and decreed the suit for non-payment of rent and on the ground of permanent construction.
3. Being aggrieved and dissatisfied by the aforesaid judgment and order the respondent-tenant filed Civil Appeal No. 551 of 1979. The learned Extra Assistant Judge, Pune, accepted the oral testimony of the respondent-tenant and recorded a finding that the petitioner failed to establish that tenant was in’ arears from 1st January, 1973. He further recorded that nothing was due and payable by the tenant, and hence no cause of action for filing a suit for nonpayment of rent. He held that the suit premises was let out to one Mulay and Mulay was running a sweet meat shop in the premises and therefore in all probability he used to prepare sweet meat in the shop for which he needed the Bhatti or furnances and since only Bhatti is repaired that will not amounted to permanent construction. He also recorded a finding that removal of old wooden door frames and shutters and ventilators will not entitle the landlord to get the possession. In view of this he allowed the appeal and dismissed the suit of the plaintiff.
4. Being aggrieved and dissatisfied by the aforesaid order the petitioner filed this writ petition under Article 227 of the Constitution. Shri. Apte learned Counsel appearing for the petitioner pointed out to me that the reasoning given by the appeal Court for accepting the testimony of the tenant is totally incorrect. In fact the petitioner-landlord’s oral testimony ought to have been accepted and there was no reason to interfere with the finding recorded by the trial Court. He also pointed out that construction of Bhatti and removal of old wooden door frame and shutter and ventilator was done without the consent of the landlord and fixation of the new rolling shutters was also without the consent of the landlord and thus the decree ought to have been passed on the ground of permanent construction. In any event Shri Apte pointed out that the case is covered by Section 12(3)(a) because after the receipt of the notice within one month the tenant neither filed any application for standard rent nor tendered rent as demanded and thus the appellate Court ought to have passed decree for possession for non-payment of rent by holding that the case is covered by Section 12(3)(a).
5. It is true that the present case is covered by Section 12(3)(a) in the sense that after the receipt of notice dated 7th October, 1974 on 11th October, 1974 though the tenant replied the notice on 3rd November, 1974 he did not sent the amount as demanded nor did he raise any dispute of standard rent and therefore a finding will have to be recorded that the case is covered by Section 12(3)(a) in which case the only defence available for the tenant is nothing is due and payable by him on the date of the issuance of the notice. This was precisely the stand taken by the tenant. His oral testimony which was discarded by the trial Court was accepted by the appeal Court by criticising the conduct and evidence of the petitioner, landlord. I see no reason to disagree with the finding recorded by the lower appellate Court firstly because it is a pure finding of fact and secondly because the acceptance of the evidence of the tenant it a possible view to be taken by the appeal Court. Hence the contention of Shri Apte that a decree ought to have been passed under Section 12(3)(a) cannot be accepted. The Bhatti-furnace constructed by the tenant or the ventilators replaced by shutters, according to me, will not constitute erecting any permanent construction and thus no decree can be passed on the ground that tenant carried out any permanent construction or any permanent alteration. This is more so in view of the newly added explanation 2 to Section 13(1)(b) and in any case whatever was done was for the beneficial enjoyment of the tenanted property and thus they will not constitute permanent construction and thus the landlord is not entitled to get a decree. In view of this there is no substance in the petition. Hence the petition is rejected, rule discharged and in the circumstances there will be no order as to costs.