JUDGMENT - M.N. CHANDURKAR, Ag. C.J.:---This petition under the Article 227 of the Constitution of India is filed challenging the decree for eviction passed against the petitioners by the Small Causes Judge, Poona, and confirmed by the IV Extra Assistant Judge, Pune. The premises in question are admittedly shop premises in which the defendants carry on sarafi business. The plaintiff-Landlord sought possession of the suit premises on several grounds, namely : (1) that the suit premises were bona fide and a reasonably required for his son's business; (2) that the defendants-tenants, without written consent or permission of the plaintiff, made several alterations and constructions in the suit premises as described in sub-paras (i) to (iv) of paragraph of the plaintiff; (3) that the defendants were in arrears of rent from 1st October, 1972 to 31st January, 1973; and (4) that the rent of the suit premises were Rs. 55/- per month plus education cess. while enumerating the structures of a permanent nature and the alteration said to have been carried out by the defendants therein the plaintiff had stated that the defendants had put up show cases by reducing the thickness of the pillars by two inches and that the said pillars were fixed within the wall and were protruding to the extend of 2 inches. Three other acts committed by the defendants were enumerated, which consisted of removal of the flooring, about 100 square feet; fixing coba in its place, lowering the level of the shop about four inches: and fixing of rolling shutters after removing the frame work of the wooden doors. 2. The defendants denied all the allegation of the plaintiff. According to them, the front portion of the shop was acquired for the purpose of the road widening, while necessarily required the plaintiff to fix rolling shutters in place of the wooden shutters, because they dealt in gold and silver, and that these alterations were made with the consent of the plaintiff. The dispute as to standard rent was also raised because of the deduction in the estimate of the suit premises available. 3. The trial Court held in favour of the plaintiff on the ground of bona fide and reasonable requirement of the suit premises for the purpose of the business of the plaintiff's son. The dispute as to standard rent was also raised because of the deduction in the estimate of the suit premises available. 3. The trial Court held in favour of the plaintiff on the ground of bona fide and reasonable requirement of the suit premises for the purpose of the business of the plaintiff's son. The second issue framed by the trial Court was as follow : "Does the plaintiff, prove that the debts, made material alterations and permanent constructions in the suit premises as described in para 2(i) to (iv) of the plaint?" On this issue the trial Court held in the negative, except that the fixing of the rolling shutters was held to be proved. It also held that the plaintiff was estopped from making a grievance about the fixing of the rolling shutters, because was done with his consent. Having held that the notice was proper, the trial Court passed a decree for possession in favour of the plaintiff. The defendants went in appeal against this decree to the learned Assistant Judge, Pune, who reversed the finding of thetria Court on the issue of the bona fide and reasonable requirement of the plaintiff. The learned Assistant Judge, however, while framing the points which arose for his consideration, framed point No. 2 as follows : "whether it is proved that the defendants have done certain acts which are destructive or permanently injurious to the suit premises." On this point the learned Assistant Judge held in favour of the plaintiff. Having reversed the finding on the issue of bona fide and reasonable requirement and on the ground of arrears of rent, the Appeal Court negatived the claim of the plaintiff under section 13(1)(b) and (g) of the Bombay Rents, Hotel Lodging House Rate Control Act, 1947 (hereinafter the Bombay Rent Act), but confirmed the decree for eviction in view of the finding under section 13(1)(a) of the Bombay Rent Act. This petition is now filed by the tenants. 4. The only contention which is relevant for the purpose for this petition and to which the arguments on both sides are restricted is whether on facts found, a claim for possession under section 13(1)(a) of the Bombay Rent Act could have been decreed by the Appeal Court. According to Mr. Naik who appear on the behalf of the petitioners-defendants Nos. The only contention which is relevant for the purpose for this petition and to which the arguments on both sides are restricted is whether on facts found, a claim for possession under section 13(1)(a) of the Bombay Rent Act could have been decreed by the Appeal Court. According to Mr. Naik who appear on the behalf of the petitioners-defendants Nos. 1 and 2, the case which pleaded by the plaintiff is not that the defendants have committed acts, which are destructive or permanently injurious to the suit premises, which fall within the last clause in section 108(o) of the Transfer of Property Act 1882, and the contention of the learned Counsel is that what is averred in sub-para (i) of paragraph 2 of the plaint is that the tenants have made a construction, which is of a permanent nature, and alterations in the suit premises. Therefore, according to the learned Counsel, the Appeal Court could not have made out a new case for the plaintiff, when the case before the trial Court was not one of any act which is destructive or permanently injurious to the suit premises, but was expressly a case of an alteration which really fell under section (3)(1)(b) of the Bombay Rent Act. Mr. Baadkar, appearing on behalf of respondent No. 1-plaintiff, vehemently urged that the case which is brought to the Court by the plaintiff is that the defendants, by reducing the thickness or width of the pillars in the premises in the occupation of the defendants, have caused damage, which is of a permanent and injurious nature. According to the learned Counsel for the plaintiff, there is no error in the decree passed by the Appeal Court, and in any case, according to the learned Counsel, if this Court comes to the conclusion that the finding recorded by the Appeal Court has any infirmity, then the matter should be remanded back to the trial Court for a appointment of a proper Commissioner and with a further direction that the defendants should remove the show cases so as to make it possible for the Commissioner to find out the extent of the damage which has resulted from the chopping off of two inches of thickness of the wooden pillars in the walls. 5. 5. It is necessary at the outside to point out that the grounds specified in Clauses (a) and (b) of section 13(1) of the Bombay Rent Act are independent of each other. Clauses (a) and (b) of section 13(1) read as follows :--- "13(1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15-A, a landlord shall be entitled to recover possession of any premises in the Court is satisfied--- (a) that the tenant has committed any act contrary to the provision of Clause (o) of section 108 of Property of Act, 1882; or (b) that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure; or .................." It will be convenient at this stage to reproduce the provisions of section 108, Clause (o) of the Transfer of Property Act. Section 108(o) reads as follows :--- "108, in the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to liabilities mentioned in the rule next following, or such of them as are applicable to the property leased : (o) 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, pull down or damage building 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". A bare perusal of section 13(1)(a) and (b) of the Bombay Rent Act and section 108(o) of the Transfer of Property Act will show that the ground on which it is permissible to recover possession as contained in section 13(1)(b) it is not covered expressly by any part of the provisions of section 108(o), which is almost incorporated by reference in section 13(1)(a). The real question in the instant case is, under what provisions does the claim made by the landlord fall? The real question in the instant case is, under what provisions does the claim made by the landlord fall? On the issue framed by the trial Court, which I have reproduce above, the trial Court has treated the averment in the plaint as one making out a case under section 13(1)(b) of the Bombay Rent Act. The Appeal Court, from the tenor of the point framed for the determination, which also I have reproduced above, as well as the judgment, shows that it treated the case as one falling under section 13(1)(a) of the Bombay Rent Act. 6. Now before I refer to the manner in which this matter has been handled differently by the trial Court and the Appeal Court it has to be made clear that on a plain reading of the averments in the plaint the case pleaded appears to be one under section 13(1)(b) of the Bombay Rent Act. Before setting out the nature of the alterations made, it is necessary to mention that the plaintiffs in his plaint, which is a Marathi, has stated, izfroknhus ck;e Lo:ikps cka/kdke o QsjQkj dsysys vkgsr-** Plainly read, there is no doubt that what the plaintiff wanted to set out was the extend of the permanent construction ¼^^dk;e Lo:ikps cka/kdke**½ and alterations ¼QsjQkj½ carried out by him. Before the plaintiff was examined in the case, it appears that he had asked for an appointment of a Commissioner. A lawyer by name Mr. Garode was appointed as a Commissioner. He made his report Ex. 29. In the report he gives the description of the suit premises as follows :--- "The shop premises appears to be irregular inasmuch as it is 25 feet east-west, and its width north-south is 4 feet and 9 inches the extent of 15 feet, and thereafter for the remaining dept the width is 7 feet and 3 inches." He found that on the inner side of the shop the defendant had fixed a show case made of sunmica and that it what not possible to ascertain whether any pillars had been cut. The show case is 9' x 3' 6". He, however, mentioned that in the walls there were wooden pillars. We are not concerned with the other features of the premises. Now, when the Commissioner forwarded this report, the plaintiff made a second application to the trial Court, which is an Ex. The show case is 9' x 3' 6". He, however, mentioned that in the walls there were wooden pillars. We are not concerned with the other features of the premises. Now, when the Commissioner forwarded this report, the plaintiff made a second application to the trial Court, which is an Ex. 31, stating that the Commissioner was appointed in order that he should be able to make a report with regard to the alterations made by the defendants, but the Commissioner did not have the show cases removed and has made no report about the alterations. The plaintiff, therefore, prayed that the Commissioner should be called upon to make a fresh report. 7. The trial Court then appointed and expert Commissioner, namely, Mr. Gokhale, who was an engineer, at the suggestion of the plaintiff, the expert Commissioner once again went to the shop premises and made his report Ex. 34. In his report the Commissioner stated that except for ascertaining as to whether any pillar were chopped off, he had seen everything else. According to him, because of the show cases fixed to the walls he was not able to ascertain how much part of the pillars had been chopped off. In his report he stated that when he asked the Counsel for the defendant whether it would be possible to remove the show cases, the Counsel told him that the interior decoration was permanently fixed and since expenses were involved in the same it was not possible to remove the show cases. The Commissioner was, therefore, not able to complete the work. He requested the Court to make an order that the defendant should remove the interior decoration, as was desired by the Commissioner, and should corporate with the Commissioner. On this report the Court made an order that the defendants should comply with the requirements of the Commissioner without fail. 8. The expert Commissioner once again went to the shop premises and made his report Ex. 35. In this report the Commissioner stated that the defendants had not kept any carpenter present, and he expressed inability to remove the show cases. 8. The expert Commissioner once again went to the shop premises and made his report Ex. 35. In this report the Commissioner stated that the defendants had not kept any carpenter present, and he expressed inability to remove the show cases. Nothing further was, therefore, possible to be done by the Commissioner, and after referring to the other parts of the shock the Commissioner in his report stated that on the question as to whether the wooden pillars were chopped off because they obstructed the interior decoration, he was not in a position to make any specific statement, because inspite of the order of the Court the defendants had not made the necessary arrangement to remove the interior decoration and show to the Commissioner the wooden pillar inside. The Commissioner in his report, however, made a further addition that the pillars which were inside the walls were, from the engineering point of view "structural members" of the building and that the building which was the old one, was standing on "wooden structure framework". According to the Commissioner this pillars were columns on which the building was standing and, therefore, they were of great importance. He stated that it was necessary to ascertain whether they had been chopped off and if so how much. But he was not able to give any decisive opinion. 9. I have referred extensively to these reports of the Commissioner because a large part of the judgment of the Appeal Court is devoted to what transferred after the Commissioner was appointed and to the conduct of the defendants in refusing to remove the show cases in order to enable the Commissioner to ascertain whether the wooden pillars have been chopped off and if so how much. Now before I go to the judgment of both the courts, it is necessary to state the plaintiff's version so far as his claim in paragraph 2 of the plaint is concerned. In his examination-in-chief he stated, "the defendant narrowed down the width of the 'guardur' (sic) and fixed cupboards in the premises. Those were wooden poles. They reduce the thickness of the wooden poles by about 2". In cross-examination he stated: "there is no evidence except my word that the defendants cut the pillars as alleged by me." 10. In his examination-in-chief he stated, "the defendant narrowed down the width of the 'guardur' (sic) and fixed cupboards in the premises. Those were wooden poles. They reduce the thickness of the wooden poles by about 2". In cross-examination he stated: "there is no evidence except my word that the defendants cut the pillars as alleged by me." 10. In so far as the plaintiffs was concerned, therefore, there is nothing in his evidence to indicate that the alleged chopping off of the pillars was an act which was destructive or permanently injurious to the property. 11. Now when we come to the judgment of the trial Court we find that the trial Court took the view that the purpose of the Commissioner was frustrated by the unco-operative attitude of the defendants and there was room to infer that in the circumstances the defendants had materially tampered with the pillars in the framework of the building and had undoubtedly committed acts of damages within the meaning of section 108(o) of the Transfer of Property Act. The trial Court drew an adverse inference against the defendants and held that the case under section 13(1)(a) of the Bombay Rent Act was proved. The trial Court seemed to have been influenced by the facts that the defendants should have removed the show cases at their own cost, and since they did not do so an adverse inference should be drawn. 12. The Appeal Court, after noticing the direction of the trial Court that the defendant should comply with the requirements of the Commissioner, found that the trial Court was perfectly justified in drawing an adverse inference against the defendants that the defendants must have broken the wooden poles, thereby causing damage within the meaning of section 108(o) of the Transfer of Property Act. The Appeal Court proceeded further to draw another adverse inference that scrapping of wooden poles is destructed or permanently injurious to the suit premises, and the Appeal Court confirmed the finding of the trial Court. 13. Two questions arise for determination in this petition. The first question is, the claim made by the plaintiffs in the plaint the one which falls under section 13(1)(a) of the Bombay Rent Act? 13. Two questions arise for determination in this petition. The first question is, the claim made by the plaintiffs in the plaint the one which falls under section 13(1)(a) of the Bombay Rent Act? The other question is, even assuming that it does so fall within section 13(1)(a), were the trial Court and the Appeal Court justified in relying on the principle of the adverse inference even to the extent of holding that the chopping off of two inches of the pillars were injurious to the premises in question? Now, so far as the first question is concerned, it is difficult to see how the trial Court and the Appeal Court could have relied on the provision of section 13(1)(a). I have reproduced part of the plaint, and it is difficult to see how, when case is expressly made of a permanent construction and alterations, a case under section 108(o) of the Transfer of Property Act could be made out at the stage of evidence. The word ^cka/kdke* and ^QsjQkj* are repeated in the plaint, and it is obvious that ^cka/kdke* and ^QsjQkj* where intended to be referred to in the plaint in the context of a further statement that as a result of the permanent construction and alterations the premises have undergone a permanent change ^feGdrhph loZ ifjfLFkrh dk;e Lo:ikph cknywu Vkdyh vkgs-* and there is not even a whisper in the plaint about any damage to the building caused. Both the Courts were clearly not justified in converting a case expressly pleaded under section 13(1)(b) into one under section 13(1)(a) of the Bombay Rent Act. A bare look at the plaint leaves nobody in doubt that the reason why the plaintiff felt impelled to serve a notice of termination of the suit premises was that the defendants had made a permanent construction and alterations in the building. I have already referred earlier to the evidence of the plaintiff. The plaintiff himself does not even refer to the fact that he treated these constructions and alterations as damaged to the building or being injurious to or destructive of the building. As the matter of facts, Mr. I have already referred earlier to the evidence of the plaintiff. The plaintiff himself does not even refer to the fact that he treated these constructions and alterations as damaged to the building or being injurious to or destructive of the building. As the matter of facts, Mr. Baadkar was very fair in conceding that the case of the plaintiff did not fall within the last part of section 108(o), but according to the plaintiff it fell under the third clause under the section 108(o) of the Transfer of the Property Act. The last part requires a finding that the act committed by the tenant is "destructive or permanently injurious" to the premises. This is a question of fact, and unless the plaintiff pleads in the plaint that a particular conduct or act on the part of the defendant was destructive or permanently injurious to the premises, the plaintiff cannot be permitted to canvass such a case at the stage of argument, more so when in his own evidence he does not even refer to this aspect. The Appeal Court has expressly found in paragraph 14 that," the adverse inference also would be further to hold that scrapping of the wooden poles is destructive or permanently injurious to the suit premises". This finding is obviously intended to bring the plaintiff's case within the last part of section 108(o). On the argument advance before me that the case of the plaintiff does not fall within the last part of section 108(o) but within the third category in the second part of section 108, this finding must be held to be completely vitiated. 14. It must, therefore, be held that the plaintiff had failed to prove his case that there was any permanent construction or alteration which enabled him to invoke the provisions of section 13(1) (b) of the Bombay Rent Act. Assuming for a moment, notwithstanding what I have said earlier, that the plaintiff was entitled to urge his case which, according to Mr. Baadkar, was one which fell in the third category in the latter part of section 108(o) of the Transfer of Property Act, I fail to see how even that the case can be said to be proved. Section 108(o) is really in two parts. Baadkar, was one which fell in the third category in the latter part of section 108(o) of the Transfer of Property Act, I fail to see how even that the case can be said to be proved. Section 108(o) is really in two parts. The first part refers to the general obligation of the tenant to use property in the same manner as a person of ordinary prudence would use it if the property was his. The second part is a negative mandate to the tenant, setting out that he shall not do any acts specified in the latter part of section 108(o), and the relevant clause is that the tenant must not "pulled down or damage buildings belonging to the lessor". Here, Mr. Baadkar contended that what the plaintiff wanted to show by asking the Commissioner to go to the spot and make a report was that the defendants had damaged the building. This damage consisted, even according to the plaintiff, of cutting or reducing the thickness of the wooden pillars by two inches in order to enable the defendants to fix the show cases. For according of finding about the damage, according to the learned Counsel for the plaintiff, the lower courts were justified in taking the recourse to the doctrine of adverse inference. The defendants had denied the very fact that they had reduced the thickness of the wooden pillars. Two facts were, therefore, required to be independently established by the plaintiff. The first basis fact was that the defendants had so cut the pillars so that the thickness thereof was reduced by two inches. A further fact had to be proved, if reliance were to be placed on section 108(o), and that fact was that this cutting of the pillars has damaged the building. 15. Now it is not necessary for me to go into the argument as to whether the defendants should have been compelled by the Commissioner to remove the show cases and that it was for the plaintiff to have brought his own carpenter to get the show cases removed. Even assuming for a moment that an adverse inference could be drawn against the defendants for not co-operating with the Commissioner in having the show cases removed, can this adverse inference be drawn in this case? The only relevant provision is section 114 of the Indian Evidence Act, 1872. Even assuming for a moment that an adverse inference could be drawn against the defendants for not co-operating with the Commissioner in having the show cases removed, can this adverse inference be drawn in this case? The only relevant provision is section 114 of the Indian Evidence Act, 1872. The only relevant illustration in the said section 114 would be illustration (g) which says that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, now it is extremely doubtful whether the alleged failure of the defendants to get a carpenter and have the show cases removed can be equated with his failure to produce evidence. But even assuming for a moment that the defendants avoided to remove the show cases, I fail to see how Court was entitled to draw the presumption against the defendants that a part of the pillars were cut. The plaintiff himself does not know anything personally about the cutting of these pillars. He does not say that he has seen the pillars before and after the fixation of the show cases. He has, therefore, no personal knowledge about the cutting of the pillars. There is no other evidence of any person whatsoever to show that the pillars had been cut. In the absence of any evidence of the pillars having been cut, the alleged refusal on the part of the defendants could not have been made the basis for drawing any adverse inference against the defendants. 16. There is a further difficulty in the way of the plaintiff, because assuming on the basis of the adverse inference it is said to be established that some part of the pillars has been chopped off, there can be no further adverse inference in respect of the effect of this act on the part of the defendants. Section 108(o) of the Transfer of the Property Act requires inter alia that a tenant may not pull down or damage the building belonging to the lessor. The question is, do the provisions of section 13(1)(a) of the Bombay Rent Act read with section 108(o) of the Transfer of the Property Act contemplate that even a small damage will entitle the landlord to ask for a decree for eviction? The question is, do the provisions of section 13(1)(a) of the Bombay Rent Act read with section 108(o) of the Transfer of the Property Act contemplate that even a small damage will entitle the landlord to ask for a decree for eviction? Undoubtedly, in view of the decision of a Division Bench of this Court in (Bright Brothers (Pvt.) Ltd. and Company v. Venketlal G. Pittie and others)1, 1979. Mh.L.J. 894, it is not possible to contend that the damage must be destructive or permanently injurious, because the Division Bench has taken the view that the words "which is destructive or permanently injurious thereto" qualify only the words' commit any other act and that those words do not contemplate a requirement of all the other earlier categories of acts which are prevented to be done by the tenant. In paragraphs 7 and 8 of the said decision the Division Bench has observed as follows : "7. It will be, firstly noticed that the five categories of the prohibited acts under the second part of the Clause(o) are distinct in nature and independent of each other. Secondly, first four categories are self-descriptive. The concluding words are obviously intended to furnish identity of the fifth category of undescribed 'any other act'. Thirdly, all the five category of these are act are separated by cases and disjunctive 'or' restricting the application of the descriptive concluding wording to the last category and disconnecting it from the earlier other four categories. "8....... the concluding portion of the clause is thus wholly inact to the context of the first four categories of the prohibited acts." 17. Notwithstanding the fact that the clause with regard to the act being destructive or permanently injurious thereto is not an ingredient of the clause relating to pulling down or damaging the buildings, it appears to me that, that clause do not take in every kind of damage, however small and inconsequential it may be section 108(o) of the Transfer of Property Act is to some extent an embodiment of the doctrine of waste under the English common law. Section 108(o) thus deals with voluntary waste, and as observed by Mulla in his Transfer of Property Act, Sixth Edition, at page 727, "An act which a person of ordinary prudence using his own property would commit is not waste although it damages the property." Dealing with "voluntary waste", it is observed in Halsbury's Law of England, Fourth Edition, Volume 27, in paragraph 279, at pages 217-8, as follows: "Voluntary waste implies the doing of some acts 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......... 'In order to constitute voluntary waste by destruction of the premises, the destruction must be wilful or negligent; the destruction of a building in the course of using it in what was apparently a reasonable and proper manner, having regards to its character and to the purposes for which it was intended to be used is not waste." 18. Mr. Baadkar, appearing on behalf of the plaintiff, has brought to my notice a decision of the Madras High Court in (P. Damodaram v. K. Loganatha Chettiar and another)2, A.I.R. 1956 Madras 54, in which the learned Judge has taken the view that to constitute voluntary waste by destruction to the premises, the destruction must be wilful or negligent, and 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. In the same decision the learned Judge further observed as follows :--- "It is not every act of waste on the part of the tenant which will entitle the landlord to obtain an order of eviction and what should be the nature and extent of the waste will depend on the circumstances of each case : 'Govindaswami Naidu v. Pushpalammal', AIR 1952 Mad. 181 (q). 181 (q). The principle is that a lessee is bound to take care of the demised premises as a man of ordinary prudence would under similar circumstances take of his own property". It is, therefore, clear that every act of waste does not result in a liability of the tenant being evicted. In a case where reliance is placed on section 108(o) of the Transfer of Property Act, the damage must be a wilful damage, and if the damage is of a minor nature resulting from doing something which is necessary for the proper user of the property for which it has been let, it is difficult to hold that the plaintiff will be entitled to a decree for eviction. The premises in question were admittedly set out for business purposes. Admittedly the shops in the locality are all sarafi shops. One must take judicial notice of the fact that in a sarafi shop articles are normally exhibited in show cases. Putting up of show cases is therefore, necessary for normal use of the premises, and indeed for a proper use of the premises as a sarafi shop show cases are normally an absolute necessity. If for the purposes of such user a tenant has cut a part of the pillars and there is no evidence to show that this had the effect of in any way making the pillars unsafe or infirm, it is difficult to hold that the tenant can rely on this act of the defendant to seek a decree for eviction under section 13(1)(a) of the Bombay Rent Act. It has to be noted that it is not the plaintiff's case in the plaint that as a result of the reduction in the thickness of the pillars the strength of the pillars has been reduced. Apart from this, the damage cannot be said to be wilful, in the sense that the pillars were cut with a deliberate motive to damage the pillars themselves. This is not even alleged in the plaint. Indeed, the case put up by the plaintiff that the pillars were cut in order to fix the show cases itself negatives the case of damage being caused wilfully. 19. This is not even alleged in the plaint. Indeed, the case put up by the plaintiff that the pillars were cut in order to fix the show cases itself negatives the case of damage being caused wilfully. 19. Now, undoubtedly, there is no evidence of the pillars having become weak or infirm, and the only statement which is relied upon both by the trial Court and the Appeal Court and the learned Counsel for the plaintiff appearing before me is the statement made in the Commissioner's report Ex. 35 where he has stated that the pillars were structural members and the building is supported on a wooden structural framework. Mr. Naik, appearing on behalf of defendants Nos. 1 and 2, has raised an objection to this part of the report. According to the learned Counsel, the Commissioner was appointed only to verify and report on the fact whether the pillars have been cut, and the Commissioner has exceeded his authority while making his observations. I do not see much substance in this objection. If the Commissioner has noticed that the whole building stands on a wooden framework and the pillars were structural members, he was bound to so mention this fact in the report, but I fail to see how this takes the case of the plaintiff further. What was necessary was evidence to show that the pillars, if they were cut by reducing their thickness, had become infirm. This is a matter of evidence and the plaintiff should have given independent expert evidence to prove this fact. Even so far as this fact was concerned, both the courts seem to have drawn an adverse inference. The learned Assistant Judge has expressly observed in the end of paragraph 14 of his judgement that the scraping of the wooden poles is destructive or permanently injurious to the suit premises. Putting a construction favourable to the plaintiff on this observation and assuming it to mean that what is intended to be pointed out was that an inference of damage to the building could be drawn, I fail to see how this is a matter of an adverse inference. Putting a construction favourable to the plaintiff on this observation and assuming it to mean that what is intended to be pointed out was that an inference of damage to the building could be drawn, I fail to see how this is a matter of an adverse inference. The burden to prove this fact was on the plaintiff, and unless the plaintiff discharged this burden there was no question of the defendants being called upon to produce any evidence, and there was, therefore, no question of drawing any adverse inference against the defendants. 20. The Commissioner in the instant case has obviously been appointed under O. XXVI, r. 9 of the Code of Civil Procedure, 1908, for a local investigation. Under Order XXVI, Rule 9 a Commissioner can be appointed if the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. The Commissioner's report can undoubtedly be treated as evidence, but so far as the extent of the damage and the effect thereof were concerned it had to be independently established, because in the Commissioner's report there was nothing to show the extent of the damage or the effect thereof. In my view, therefore, the evidence of both the courts is wholly vitiated by an entirely erroneous approach on the facts of the present case. 21. At this stage, Mr, Baadkar argued that the matter should be remanded back with a proper direction to the Commissioner and to the defendants to make the necessary facilities available for inspecting the suit premises. I do not think in view of my finding with regard to the nature of the claim originally made by the plaintiff any useful purpose would be served by remanding the matter. It is not, therefore, possible to accede to the request of Mr. Baadkar for a remand. In the view which I have taken, the judgments and decrees of both the courts below have to be set aside and the plaintiff's claim for possession of the suit premises on the ground stated in section 13(1)(a) of the Bombay Rent Act must stand rejected. These were the only contentions advanced before me. 22. The petition is thus allowed with costs. -----