Punjab-Haryana High Court
Mrs. Anju Sharma vs Krishan Kumar And Others on 18 October, 1995
Equivalent citations: AIR1996P&H162, (1996)114PLR549
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER
1. Tenant-petitioner (hereinafter referred to as 'the tenant'), who has been ordered to be ejected from the premises in dispute, has filed the present revision petition, which arises out of the following facts :
Respondent-landlords (hereinafter referred to as 'the landlords') sought the ejectment of the tenant from the premises in dispute, consisting of three rooms, situated in Mohalta Iqbal Ganj, Ludhiana, fully detailed in the head note of the petition and shown in red colour in the site plan attached to the petition, on the following grounds:--
"(a) The respondents ceased to occupy the premises for the last 4 years.
(b) The respondents did not pay the rent since 21-5-1978.
(c) The respondents have converted three shops in one hall and removed the separating walls.
(d) The respondents have also installed wooden cabins in the premises in dispute without consent of the applicants, as such, materially impaired the value and utility of the same."
2. Grounds A and B were rejected by the Courts below and do not arise for consideration in this Court. Reference to facts is, therefore, being made with regard to grounds C and D only.
3. Niranjan Dass, who was the previous landlord, had let out the premises in dispute to the original tenant Ved Vyas, vide rent note dated 15-4-1961. After the death of Niranjan Dass, the property was inherited by Mohin-der Lal Jain, who sold the same to the landlords by means of a registered sale deed dated 21-3-1972. Original tenant, Ved Vyas died in the month of October, 1976 leaving Mrs. Anju Sharma as his successor, who is in the exclusive possession of the property in dispute as a tenant. Vishnu Dev who was arrayed as respondent No. 2 in the petition, relinquished his tenancy rights in favour of Anju Sharma, tenant.
4. Regarding material impairment of the value and utility of the building, it has been averred in the petition that the tenant had materially impaired the value and utility of the premises in dispute as she had converted three shops into one big hall by removing the separation walls. It is claimed that due to the removal of the said walls, the building has become weak and there arc several cracks in the Avails and the building may fall down at any time. It is further alleged that the tenant has installed wooden cabins in the premises in dispute without the written permission and consent of the landlords,
5. In the written statement filed, it has been denied that the tenant had materially impaired the value and utility of the premises in dispute, as alleged in the petition. It has been averred that the premises in dispute were in the original condition and when the same were let out to the tenant, the three separation walls were not in existence; that the landlords had earlier filed an eviction petition against the tenant in which the same very grounds of eviction were taken. The said petition was contested but the same was got dismissed as withdrawn with permission to file a fresh petition subject to payment of Rs. 40-00 as costs. Similarly, two other petitions had been filed by taking the same grounds and both were dismissed and that the petition was barred by the principle of res judicata.
6. Rejoinder to the written statement was filed.
7. On the basis of the pleadings of the parties, following issues were framed:--
"1. Whether there exists relationship of landlord and tenant between the parties? OPA.
2. Whether the respondent is liable to be ejected on the grounds mentioned in para No. 2 of the application ? OPA.
3. Whether the application is not maintainable ? OPR.
4. Whether the application is barred by principles of res judicata ? OPR.
5. Whether the application has been moved with mala fide intention as alleged ? OPR.
6. Whether the applicant is entitled for the enhanced house tax, if so, at what rate and from what period and date ? OPR.
7. Relief."
8. Rent Controller decided all the issues in favour of the tenant and the rent petition was ordered to be dismissed, Aggrieved against the order of the Rent Controller, landlords filed an appeal. Before the appellate authority, the only point argued was with regard to material impairment of the value and utility of the building. Findings recorded by the Rent Controller on other issues were not contested.
9. The appeal was accepted and it was held that the tenant had removed the three separation walls of the premises in dispute and converted the same into a big hall which amounted to materially impairing the value and utility of the building. The tenant was ordered to be evicted from the premises in dispute, aggrieved against which, the present revision petition has been filed. Before this Court also, the only point canvassed is with regard to the material alterations made by the tenant impairing the value and utility of the building.
10. At the outset, it may be stated that the previous landlord, Niranjan Dass, had also filed an ejectment petition against the tenant on several grounds including material impairment of the value and utility of the building. The same was dismissed on some technical grounds. No findings on merits were recorded. Later on, after purchasing the property in dispute, the present landlords filed a petition in which they had taken the point regarding material impairment of the value and utility of the building by removing the three separation walls. The said petition was got dismissed as withdrawn with permission to file a fresh petition on the same cause of action. Another petition was, thereafter, filed, which must have been dismissed on some technical grounds but the orders passed by the Rent Controller have not been produced. Thereafter, the present revision petition was filed.
11. Council for the tenant argued that filing of repeated petitions by the landlords on the same grounds shows the conduct of the landlords that the pleas taken by them are not bona fide, otherwise they would not have got their petitions dismissed as withdrawn and that they are debarred from making repeated petitions on the same grounds.
12. I do not find any substance in this submission of the counsel for the tenant. None of those petitions have been decided on merits. In Ram Dass v. Smt. Sukhdev Kaur, (1981) 83 Pun LR 440: (AIR 1981 Punj & Har 301) a Division Bench of this Court held that the provisions of Order 23, Rule 1(3) of the Code of Civil Procedure, are not applicable to the proceedings under the East Pubjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act'). So, the dismissal of the earlier petitions would not debar the landlords from filing a fresh eviction petition on the same cause of action as the earlier petitions had not been decided on merits. Section 14 of the Act would, thus, not come into operation debarring the landlords from filing a fresh petition on the same cause of action as earlier petitions had not been decided on merit.
13. The next point to be considered is as to whether the tenant had removed the three separation walls.
14. All through, the case of the tenant was that there were no serving walls and the premises let out to her were a big hall in which she had put certain wooden partitions. Sat Dev Gupta, AW-2, expert witness produced by the landlords, in this statement, stated that there were no physical signs of removal of the walls but with his keen eyes he could observe that those walls had been removed. From this or from the statement made by the landlord, it cannot be concluded that the tenant had infact, removed any serving walls in the shop.
15. Even if it is assumed, for the sake of arguments, that the intervening walls had been removed by the tenant, the question which falls for consideration is as to whether simple removal of the intervening walls (Pardi Walls) would entitle the landlord to take possession of the property on the ground of material impairment without further proof that the removal of the wall has endangered the building. In this case, there is no evidence that removal of the walls have impaired the value and utility of the building. Walls removed were pardi walls which were not taking any load of the building. Landlord had constructed first and second floors on the building in dispute and if the value and.utility of the building had been impaired, it would not have been possible to construct first and second floors on the building. It shows that the walls removed were only intervening walls and not weight bearing walls. Mere removal of the intervening walls by the tenant, by itself, would not be sufficient to hold that it has materially impaired the value and utility of the building in dispute unless it was further proved by leading cogent evidence that the said wall was supporting the roof and its removal has endangered the building in any manner.
16. Since, on this point, there was a conflict of opinion in this Court, the matter was referred to a larger Bench. On reference, a Division Bench of this Court in Bhupinder Singh v. J. L. Kapoor, 1992 Har Rent R441, held that whether the construction has materially impaired the value and utility of the building, would depend on the facts and circumstances of each' case, depending on the evidence led by the parties. Simpliciter proof of alteration by itself, would not entitle the landlord to have an order of ejectment against the tenant. Landlord has further to prove that the alterations made have materially impaired the value and utility of the building. A learned single Judge of this Court in Walaiti Ram (Sangrur) v. Sohal Lal, 1986 Har Rent R 137, while dealing with the removal of a wall, held as under :-
"I have heard the learned counsel for the parties and have also gone through the pleadings and the case law cited at the Bar. The only allegation in the ejectment application was that by removing the intervening wall etc. the tenant has made material alteration of which he has right. No such allegation was made as to in what manner the said alteration had impaired the value and utility of the demised premises. The learned Appellate Authority after discussing the entire evidence observed that only the land-lord stated that the shop had been rendered useless. but there was no evidence on the record to show that the intervening wall was supporting the roof and its removal had rendered the premises as dangerous. It was further observed that the tenant had merely removed the intervening wall and had constructed it at a different place. The demolition of a wall does not amount to alteration which, materially impairs the value and utility of the building. It is finding of fact based on the appreciation of evidence. Unless the landlord proves that the wall which was removed was supporting the roof and because of its removal it has damaged the building in any manner, it could not be successfully argued that its removal had impaired the value or utility of the shop in dispute. It will be a question of fact in each cage as to whether a particular act or alteration made fay the tenant has materially impaired the value and utility of the demised premises or not. On the facts of the present case, it could not be successfully argued that the mere removal of the intervening wall has impaired the value and utility, unless it was further proved that in what manner it has endangered the building. No cogent evidence has been led by the landlord in this behalf except a bald statement that the shop had been rendered useless. In some what similar case reported in M/s. Ram Dhan Dass Ramji Dass Sethi, Ferozepur City's case (1985 (1) Ren CR 520) (Punj Har) (supra) it was held by me that since the wall was only 7/8 feet above the ground and was not upto the roof level it was for the landlord to prove as to in what manner the removal thereof has impaired the value and utility of the building for which no evidence was led on behalf of the landlord. Similarly, in the present case there is nothing on the record to prove as observed by the Appellate Authority as well, that the intervening wall was supporting the roof and its removal has rendered the premises as dangerous. In the absence of any such allegation or proof it could not be successfully argued that the mere removal of the intervening wall has materially impaired the value and utility of the demised premises. The authorities relied upon by the learned counsel for the petitioners are clearly distinguishable and are not applicable to the facts of the present case. The nearest case to the fact of the present case is reported in Rajagopal alia Setty's case(AIR 1984 Kant 128) (supra). The head note A is somewhat misleading. In that case the learned District Judge reversed the finding of the trial Court and came to the conclusion that it was not proved that the tenant had demolished the previous existing wall or put up a new wall. The High Court agreed with the bald proposition laid by the District Judge that the demolition of the existing wall or putting up a new one in another place would amount to material alteration but on facts as noticed above the position was different. Moreover, whether the removal of a wall amounts to materially impairing the value or utility of the demised premises or not is a different matter. The question to be decicted under the Rent Restriclion Act is as to whether an alteration is of such a nature which is likely to impair the value or utility of the demised premises. Such was not a question before the Karnataka High Court The landlord in order to eject the tenant on this ground is required to prove that the tenant has committed such Acts as are likely to impair the value or utility of the building or rented land. The mere removal of the wall by the tenant by itself will not be sufficient to hold that it has materially impaired the value and utility of the shop in dispute unless it was further proved by cogent evidence that the said wall was supporting the root' and its removal has endaneered the buildineing any manner. Such an evidence is lacking in the present ease. Thus I do not find any illegality or impropriety in the findings of the Appellate Authority as to be interfered within revisional jurisdiction. Consequently, the petition fails and is dismissed with no order as to costs."
17. I respectfully subscribe to the views expressed by the learned single Judge of this Court in Walaiti Ram's case (1986 Har Rent R 137) (supra). In the present case, except the bald statement of the landlord, there is no other evidence on the record to show that the removal of the separation walls, in any way, has materially impaired the value and utility of the building. Sat Dev Gupta, AW-2, expert witness produced by the landlord, has not categorically stated that removal of the walls have, in any way, materially impaired the value and utility of the building. I have examined the site plan which has come on the record. It shows that the weight of the building is on two pillars and the beam. The walls which have been removed did not take the weight of the building which had been constructed on the first and the second floors. They are pardi walls, which have been removed.
18. As against this, the evidence of the tenant is that there has been no material impairment of the value and utility of the building in dispute. Tenant also produced Bodh Raj Dhall, RW-1, as her expert witness, who stated that removal of the walls, in any way, would not cause any material impairment of the alue and utility of the building.
19. Counsel appearing for the landlords relied upon Martar Singh v. Kesar Singh, (1980) 1 Ren CJ 1, The Hosiery Industry Federation (Regd.), Ludhiana v. Shri Ram Maini, (1988) 93 Pun LR 611 : (AIR 1989 NOC 11) and M/s. Suman Light Hosiery v. Jaswant Singh, (1985) 2 Ren CJ 20, to contended that whereever any intervening wall is removed, that itself, would amount to impairing the value and utility of the building. In Shri Ram Maini's case (supra) and Jaswant Singh's case (supra), findings had been recorded by the learned Judges on the evidence produced in these cases that removal of the wall would materially impair the value and utility of the building. So far as Kartar Singh's case' (supra) is concerned, that was considered by the Division Bench in Bhupin-der Singh's case (supra) and the reasoning given by the learned single Judge was not approved. In the present case, there is no evidence to show that removal of the walls caused any material impairment of the value and utility of the building. The burden of proof was on the landlords, which they have failed to discharge and the findings recorded by the appellate authority are liable to be reversed on this ground.
20. For the reasons stated above, this revision petition is accepted. Order of the appellate authority is set aside and that of the Rent controller is restored. The eviction petition filed by the landlord-respondents is ordered to be dismissed with no order as to costs.
21. Order accordingly.