Punjab-Haryana High Court
Baldev Singh vs Waryam Singh on 14 March, 2000
Equivalent citations: (2000)125PLR728
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Baldev Singh (hereinafter described as "the petitioner") directed against the judgment of the learned Appellate Authority, Gurdaspur, dated 26.5.1989. The learned Appellate Authority had set aside the order passed by the learned Rent Controller, Gurdaspur, dated 9.11.1987 and instead passed an order of eviction against the petitioner.
2. The relevant facts are that the respondent landlord Waryam Singh had filed a petition for eviction against the petitioner-tenant from the shop in dispute. The surviving ground which requires consideration is as to if the petitioner-tenant has made material additions and alterations in the property without the written consent of the respondent-landlord. As per respondent-landlord, the petitioner-tenant has broken the original door and has raised the walls in the verandah and shutter has been placed in the verandah on the railway road side. It has materially impaired the value and utility of the property.
3. The petitioner-tenant contested the eviction application. He admitted himself to be a tenant but denied that material additions and alterations have been made which impaired the value and utility of the suit property. The case of the petitioner-tenant has been that it is the respondent-landlord who got the shutter fixed when the shop was let to the petitioner-tenant. He had received Rs. 1,000/- as advance. The petitioner-tenant denied that the walls in the verandah had been raised. It was pleaded that the petitioner-tenant has not effected any change in the shop in dispute.
4. The learned Rent Controller framed the issues and concluded after recording of evidence that there was no cogent evidence to prove that additions and alterations have been effected by the petitioner or that it has impaired the value and utility of the property. The petition for eviction was dismissed.
5. Aggrieved by the same, the respondent-landlord preferred an appeal. The learned Appellate Authority rejected the plea of the petitioner-tenant that Rs. 1,000/- has been given as advance for fixing the shutter. It also rejected the contention of the petitioner-tenant that the changes that were effected had been made by the respondent landlord. It was concluded that a wall had been raised, door had been removed and a shutter had been set up. In this process, the verandah had been covered. The learned Appellate Authority held that the structural changes are of far reaching nature. It has materially impaired the value and utility of the suit property. Accordingly, an order of eviction on the said ground was passed.
6. Aggrieved by the same, present revision petition has been preferred.
7. The law is well settled that under Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") this court can only look into the legality or propriety or the order. The scope for interference is, thus, limited. This Court ordinarily would only interfere if the findings recorded on facts are absurd and not supported by evidence.
8. The learned Appellate Authority scanned through the evidence and concluded that the plea of the petitioner-tenant that he advanced Rs. 1000/- for fixing the shutter or that the shutter was fixed by the respondent-landlord himself is not correct. The circumstances and the facts have been taken note of. Since the findings are based on evidence and further that the said changes have been made without the consent of the respondent-landlord, there is no scope for interference. The plea of the petitioner-tenant to the contrary on that account must fail.
9. It has been found that a shutter had been placed outside the verandah. The door has been removed and a wall has been set up on one side. There is nothing to indicate that the walls had been set up by digging the foundation.
10. The short question, thus, arises for consideration is as to if this would be materially impairing the value and utility of the suit premises or not.
Reliance has strongly been placed on a large number of precedents in this regard. Reference to some of them would be in the fitness of things.
11. In the case of Chatar Sain v. Bishan Lal and Ors., 1976 Punjab Law Reporter, (1976) 78 Punjab Law Reporter 174, this Court concluded that the expression "are likely to impair materially the value or utility of the building "denotes that it would be a matter of opinion or deduction to be drawn from the nature of the alterations. It is for the Court to come to a conclusion. In the said case, it was held that a building with a verandah is more useful than the one without a verandah. If structural alteration is made in the said verandah, it would be impairing the value and utility of the premises.
12. In the case of Kartar Singh v. Kesar Singh and Anr., 1980 All India Rent Control Journal 1, the structural alterations alleged to have been made were that the tenant had demolished the partition wall and had converted the two shops into one. He had made an opening in the partition wall. He had removed the 'Chaukhats' and 'takhtas' of the four doors and included the verandah in the front room and fixed a shutter therein, it was the cumulative effect of the same that was considered and thereupon it was concluded that once the verandah had been covered and it had been included into the shop, it would be impairing the value and utility of the suit premises. It is abundantly clear from the aforesaid that the cited decision were confined to the peculiar facts of the said case.
13. In the case of Dewan Chand v. Babu Ram, 1980 (2) All India Rent Control Journal 615, the tenant had removed two doors from the wall. He had removed the rafters from the wall and had instead placed a lintel thereon, he had also constructed two walls on two sides of the verandah. It were these changes which permitted this Court to conclude that the value and utility of the property has been impaired. As noticed earlier, the peculiar facts of the case matter and it cannot be taken, therefore, to be a precedent that whenever shutter is placed in front of the verandah, it must be taken that the value and utility of the property has been impaired.
14. However, strong reliance has been placed on the decision of the Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand and Ors. (1993-2) 104 P.L.R. 349 (S.C.). The findings of the Supreme Court were as under: -
".......By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially effected....."
15. Before the respondent can take advantage of the cited case, reference can well be made to the petition for eviction. The plea of the respondent-landlord was a under:-
"That the respondent has made material alterations in the shop without the written consent of the applicant-landlord by breaking the original door shown at point X in the additional and alteration plan and has also put in a shutter. The respondent has raised walls in the verandah as shown from Point Small a to Small b on the Eastern side and Small c to Small d on the Western side. This particular portion is shown by red colour in the site plan. A shutter has been fitted in the verandah on the Railway road side (South) between the letters G and H."
16. In the present case, it is not the case of the respondent-landlord that by setting up of such shutter, the light and air has been restricted. It was not even in the statement of the respondent-landlord. Consequently, the respondent-landlord cannot, indeed, avail the decision of the Supreme Court in Vipin Kumar's case (supra).
17. A Division Bench of this court, on the contrary, in the case of M/s Parkash Chand Hamam Singh v. Shri Gian Chand, (1979) 81 P.L.R. 196, held as under:-
".....In this view of the matter, we hold that the act of the petitioners in just fixing up the door in the verandah after removing the same from the original place, would not amount to impairment of value and utility of the premises and the petitioners on that score would not be liable to ejectment. The view we have taken finds full support from the judgment of this court in Siri Krishan Dev v. Jhabu Ram unreported decision in Arjan Singh v. Kishan Chand, Civil Revision No.689 of 1971, decided on November 5, 1971, and another unreported decision in Babu Ram v. Smt. Kesra Devi, Civil Revision No. 482 of 1964, decided on December 11, 1964."
18. Supreme Court in the case of Sh. Om Pal v. Sh. Anand Swarup (Dead by LRs.), (1988-2) 94 P.L.R. 699 (S.C.), had provided the following guide-lines:-
"In the light of these decisions, if we examine the present case we find that the Rent Controller and the Appellate Authority as well as the High Court have obviously failed to construe Section 13(2) (iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant. As has been repeatedly pointed out in several decisions it is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract Section 13(2)(iii) of the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. It was pointed out in Om Parkash v. Amar Singh, 1987(I) S.C.C. 458 at 463) that the legislature had intended that only those construction which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word "materially altered the accommodation" and as such the construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building, it would, therefore, follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.
19. As one scans through the precedents, it is clear that each case has to be examined on its own facts. Every change made does not tantamount to hold that the value and utility of the premises had been impaired if the structure is not damaged. When the substantial character of the property is not changed, it cannot be termed that the value and utility of the property has been impaired. It has to be seen from the point view of the landlord.
20. Herein, only a door has been removed. During the course of arguments, it was not disputed that similarly in the other shops in the same row the verandah had been covered. Thus, merely putting up shutter does not tantamount to say that the value and utility of the property has been impaired. The same can be removed at any time and when such structures are set up, ground of eviction will not become available. Borrowing the words from Om Pal's case (supra), once can say conveniently that construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure etc. would not materially alter the building. The result is that the impugned judgment cannot be sustained.
21. For these reasons, the revision petition is allowed and the impugned judgment is set aside. Instead, petition for eviction is dismissed.