Punjab-Haryana High Court
Suraj Bhan vs Dewan Chand And Ors. on 8 March, 2006
Equivalent citations: (2006)143PLR611
Author: Hemant Gupta
Bench: Hemant Gupta
ORDER Hemant Gupta, J.
1. The tenant is in revision petition aggrieved against the order passed by the learned Appellate Authority whereby the petitioner has been ordered to be evicted on the ground that he had caused such acts which have materially impaired the value and utility of the tenanted premises.
2. The respondent-landlord has sought ejectment on the ground that the tenant has constructed a partition wall inside the room, water tank and a drain which acts have materially impaired the value and utility of the disputed premises. To prove such impairment, the landlord has examined building expert AW1 Dhanna Singh. The tenant has examined another expert RW4 Kehar Singh. Apart from such experts, the parties have stepped into the witness box as their own witnesses and also produced other oral evidences.
3. The allegation of material impairment is in three parts. Firstly, the tenant has constructed a wall to divide the shop into two. The said wall has a door as well. Secondly, the tenant has constructed a water tank for the storage of water and also a drain in the room to discharge waste water. Thirdly, the dampness on the wall is on account of waste water.
4. To prove that the tenant has constructed a wall which has impaired the value and utility of the demised premises, the expert of the landlord has stated that the wall has been built up on the pucca floor of cement and concrete of the shop. It has no foundation. There is no inter-gripping teething with both the walls of the room on either side. This wall is 9 inches thick and has got no connection with lintel at the roof level as well. A perusal of the said statement would show that the wall has been raised by the tenant without any foundation and is not permanently fixed in the adjoining wall as well. The said wall even does not touch the roof Therefore, the said wall is a temporary wall and it cannot be said that such construction has impaired the value and utility of the building. In fact, the witness produced by the tenant shows that such wall can be dismantled at a nominal cost of Rs. 40/-. Therefore, mere construction of a wall, which is temporary and can be removed at a nominal cost, cannot be said to impair the value and utility of the building.
5. Learned Counsel for the respondent has referred to Shiv Ram (Dead) through LRs. v. Sham Lal and Anr. 2003(2) Rent Control Reporter 285, to contend that mere construction of a wall is an act which entitle the landlord to seek eviction of the tenant. A perusal of the judgment does not show the nature of construction of the wall. But a finding has been returned that out of one room, the tenant has made two rooms. But in the present case, there is a positive evidence that the wall constructed is without any foundation or without joining the walls on either side and that it has no connection with the lintel at the roof level. Therefore, it is purely a temporary construction and, thus, this judgment is not applicable to the facts of the present case.
6. The other allegation of installation of water tank and provision of a drain is again not sufficient to return a finding of materially impairing the value and utility of the building. Admittedly, the tank has been put by the tenant in the open area. Since the tenant is a barber, therefore, he requires water to carry out his business. The tank is in the open area, for the purposes of utilisation of the building, therefore, it cannot be said that merely by putting water storage tank, the tenant has impaired the value and utility of the building. There is no evidence that the Khura or a Nali allegedly raised by the tenant damages the floor or is permanent in nature. A drain has been provided by the tenant for the purposes of drawing of water. It cannot be said to be act of impairing the value and utility of the building.
7. Lastly, it has been argued that AW1 Dhanna Singh in his report has stated that there is dampness on the wall adjoining drain upto the height of 7 feet and, therefore, the dampness has damaged the building. The said statement as well as statement of the landlord stand belied by the expert examined by the tenant who has stated that there is no dampness. The dampness itself is denied by the expert produced by the tenant in the cross-examination. Even if dampness is arrived, it could be for more than one reason. Still further, mere dampness is not shown how it affects the utility of the building.
8. In view of the above, I am of the opinion that the order of eviction passed by the learned Appellate Authority is not sustainable in law. Accordingly the revision petition is allowed and the impugned order passed by the learned Appellate Authority is set aside.