Supreme Court - Daily Orders
Krishan Kumar vs Krishna Nath . on 6 February, 2020
Bench: Navin Sinha, A.S. Bopanna
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9809 OF 2010
KRISHAN KUMAR … Appellant(s)
VERSUS
KRISHNA NATH & ORS. … Respondent(s)
O R D E R
The appellant assails order dated 4.2.2009 allowing the Civil Revision preferred by the respondent, granting three months’ time to the appellant to vacate the premises in question.
The parties shall be referred to by their respective position before the Rent Controller for convenience. The plaintiff-landlord filed Rent Petition No.51/02 for eviction of the respondent-tenant on ground of non-payment of rent and making material addition and alterations without the consent of the plaintiff. The arrears of rent having been paid, the Rent Controller rejected the plea for eviction holding that the plaintiff had failed to prove any addition, alteration etc. Rent Appeal No.16/1988 preferred by the plaintiff was rejected. The plaintiff then preferred the Civil Revision application.
Signature Not Verified Digitally signed by
Learned counsel for the respondent contended that the two GULSHAN KUMAR ARORA Date: 2020.02.13 17:35:44 IST shops, the subject matter of the suit are contiguous to each other. Reason:
The respondent runs a photo studio in the tenanted premises. Shop 2 No.1 was leased out from 1.5.1981 and the tenancy of Shop No.2 was recorded in an agreement dated 17.4.1985 acknowledging that the respondent was in occupation since earlier. Clause 9 of the former lease for shop No.1 permitted addition and alteration at the cost of the respondent. The plaintiff in his evidence gave up his claim for eviction from shop no.2. The respondent in his written statement had specifically denied the allegations of having made any material addition and alteration in the leased premises. It was next submitted from Exhibit P-1, the site plan filed by the plaintiff, that the partition wall between the two shops had remained undisturbed.
It was next submitted that the pleadings were completely lacking as to when the additions and alterations had been made. Even the plea that the same was done when the plaintiff had gone to Dehradun, also remained unsubstantiated as no date was mentioned with regard to the visit to Dehradun. Reliance was placed on G. Reghunathan vs. K.V. Varghese [(2005) 7 SCC 317] without prejudice to the aforesaid submissions, that the nature of alternations done for convenience of business to create dark rooms to facilitate the photography business did not materially impair or diminish the value of the building.
Learned counsel for the plaintiff submitted that a sporadic statement in evidence that the claim was being restricted to shop no.1 only was not material as no issue was framed with regard to the same or finding arrived at. The pleadings were specific that 3 eviction was being sought from both the shops. Referring to Section 13(2)(iii) of the Haryana Urban (Control of Rent & Eviction) Act, 1973,(hereinafter referred to as ‘the Act’) it was submitted that demolition of the wall between the two shops, removal of the beam, opening of a door in the partition wall and construction of dark rooms inside the shop was an addition/alteration making it a ground for eviction. The assertions of the plaintiff with regard to the addition/alterations were specific while the denial was vague and evasive. There was no specific denial that the wall and beam had not been demolished, door had not been installed or that dark rooms had not been constructed.
Reference to the findings of the Rent Controller, confirmed by the appellate authority, regarding lack of specific pleading concerning the date of the alteration, reliance was placed on Order VI, Rule 2 of the Code of Civil Procedure to submit that the plaintiff was only required to state material facts in support of the claim and not the evidence by which they were to be proved. The two judgments referred to by the appellate authority of the Punjab and Haryana High Court were not relevant in the facts of the present case in view of the lack of any specific denial by the respondent of the material alterations made by him.
We have considered the submissions on behalf of the parties. It is considered appropriate to set out Section 13(2)(iii) which reads as follows :
“13. Eviction of tenants.--(1) A tenant in 4 possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied,-
(i) …
(ii) …
(iii) that the tenant has committed or caused to be committed such acts as are likely to impair materially the value or utility of the building or rented land;” The plaintiff sought the eviction from Shop Nos.1 and 2, but during the course of his deposition, he specifically stated that he was confining the relief now only to shop No.1 which he wanted to be vacated. This recital in the order sheet of the Rent Controller has to be taken and considered as sacrosanct and it is not open for the plaintiff to renegade from the same and put up a case for eviction from both the shops.
The eviction suit having been filed on the ground of material alteration to the suit premises, the onus lay on the plaintiff to establish that the respondent had made structural changes which materially altered the suit premises and diminished its value and utility. The submission that it was not necessary to make any specific pleading or lead evidence with regard to the date on which such alterations may have been done was not relevant, is difficult to accept. In the facts of the present case, in view of the Exhibit P-1 furnished by the plaintiff himself demonstrating that 5 the wall between the two shops existed, the onus lay on the plaintiff to establish as a fact that not only that the material alterations had been made, but also that it had been done after the commencement of the lease. The plaintiff failed to lead any such evidence.
The contention of the plaintiff that there was no specific denial to the assertions in the plaint with regard to the removal of the beam, the wall, the installation of a door and construction of dark rooms in the written statement and, therefore, it must be deemed to have been admitted cannot be countenanced. The defendant having denied any such alterations, the initial onus having rested on the appellant to establish not only that the alterations had been made but the dates in respect thereof, as being after the date of the lease, it cannot be accepted that the plaintiff was not required to prove anything further.
It is a matter of common knowledge that a beam is constructed to hold the structure together which is then joined by bricks. If the beam between the two shops which supported the ceiling had been removed, it stands to reason that the ceiling itself would have collapsed immediately.
As noticed above, the lease agreement with regard to Shop No.1 permitted additions and alterations at the cost of the respondent. The question therefore arises that if such additions and alterations are presumed to have been made, for the purposes of 6 discussion, does it amount to materially impairing the value or utility of the building under the Act.
In G. Reghunathan (supra), this Court observed that what would constitute material impairment affecting the value and utility of the building could not be described or considered in generalized terms or of uniform application but would have to be considered in the facts of each case. It was noticed from Ayissabeevi vs. Aboobaker [1971 KLT 273] that if the removal of the wall is for convenience of trade and there is no evidence of any damage to the building having been caused by the removal of the wall, it would not amount to an act of waste likely to impair materially the value and utility of the building. In the present case the allegation is that the middle wall between the two shops had been removed and dark rooms constructed. It needs no emphasis that this was done to facilitate the business of the respondent. The provisions in Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 are similar as under the present act.
The appellate authority relied on two orders of the High Court in Madan Lal vs. British Motor Car Company [1985 Haryana Rent Reporter 173] and Satpal Singh vs. Rameshar Singh [1988 PLR 626] in which ejectment had been sought on similar grounds of material alterations. In both the judgments, the High Court had held that it was necessary to not only plead but also to place cogent evidence with regard to the time when the alterations had taken place to establish conclusively that it was subsequent to the 7 tenancy. The situation presently is no less different. The High Court was exercising revisional jurisdiction under Section 15(6) of the Act. Its jurisdiction was confined to satisfying itself as to the legality and propriety of the order. The High Court was not exercising appellate jurisdiction. However, without considering the judgments referred to by the appellate authority and lack of any evidence placed by the plaintiff with regard to the date of such material alteration, particularly, with reference to Exhibit P-1 relied upon by the plaintiff, it concluded without any material that because the site plan showed the existence of a wall, it was clear that the tenant had removed the wall. The High Court heavily relied upon the removal of the beam but did not consider the aspect discussed by us with regard to the same. The conclusion, therefore, that the date of such alteration was not relevant, is difficult to uphold.
At the commencement of the arguments, learned counsel for the plaintiff had also submitted that the premises were required for personal use. Unfortunately that was not a ground taken in the suit and, therefore, we cannot take notice of the same. A grievance was also raised with regard to inadequacy of rent. Learned counsel for the respondent has fairly offered to pay rent at the rate of Rs.3,000/- per month for each shop from February 2020 without prejudice to the rights of the plaintiff to seek further enhancement of the same in accordance with law by 8 approaching the Rent Controller for fixation of fair rent. We also observe that the present order cannot come in the way of the plaintiff in filing a suit for eviction on the ground of personal necessity, if such a ground is available and exists. If such a suit is filed, we expect it to be considered expeditiously in accordance with law.
The impugned order is set aside. The appeal is allowed.
…………………………………………………………,J (Navin Sinha) …………………………………………………………,J (A.S. Bopanna) New Delhi;
February 06, 2020.
ITEM NO.104 COURT NO.13 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 9809/2010
KRISHAN KUMAR Appellant(s)
VERSUS
KRISHNA NATH & ORS. Respondent(s)
Date : 06-02-2020 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE NAVIN SINHA
HON'BLE MR. JUSTICE A.S. BOPANNA
For Appellant(s) Mr. Gagan Gupta, AOR
For Respondent(s) Mr. D.K. Sharma, Adv.
Mr. Rohit Vats, Adv.
Ms. Sunita Sharma, Adv.
Ms. Rashi Singhal, Adv.
Mr. Daya Krishan Sharma, AOR
UPON hearing the counsel the Court made the following O R D E R The impugned order is set aside. The appeal is allowed in terms of the signed order.
(GULSHAN KUMAR ARORA) (DIPTI KHURANA)
AR-cum-PS COURT MASTER
(Signed order is placed on the file)