Punjab-Haryana High Court
Ashok Kumar And Ors. vs Banarsi Dass And Ors. on 15 December, 1998
Equivalent citations: (1999)121PLR551
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Ashok Kumar and others (hereinafter described as 'the petitioners') directed against the order of the learned Rent Controller, Dasuya dated 23.11.1994 and of the Appellate Authority, Hoshiarpur dated 3.5.1997. The learned Rent Controller had passed an order of eviction against the petitioners and the appeal filed by the petitioners had been dismissed by the Appellate Authority.
2. The relevant facts giving rise to the present revision petition are that an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 they; short 'the Act') had been filed with respect to the shop which had been let out to the petitioner. It had been alleged that the property had been mortgaged with one Narinder Singh for a sum of Rs. 11,000/- vide two mortgage deeds. A suit was filed for possession by way of redemption where the tenants have set up the claim that they are the tenants at monthly rent of Rs. 150/-. It was held that Krishan Chand precedessor-in-interest of the petitioners was tenant under the respondents. A preliminary decree of redemption was passed. The property had been redeemed on the payment of Rs. 11,000/- to the mortgagees. The petitioners were taken as tenants at a monthly rent of Rs. 150/-. The ground of eviction was that arrears of rent have not been paid since August, 1975 and that the petitioners are forcibly and illegally trying to interfere in possession of the respondents over the site adjacent to the demised shop. A civil suit for injunction was filed on 31.3.1987. During the pendency of the suit the petitioners had pull down the southern wall of the shop. The result was that the respondents had to amend the suit and it was converted into a suit for mandatory injunction. The petitioners were directed to restore the vacant possession of the site which they had forcibly occupied. The eviction was claimed contending that the petitioners have materially impaired the value and utility of the shop by removing the southern wall without the consent of the landlord.
3. The arrears of rent were tendered on the first date of hearing and thus the sole surviving ground which was subject matter of controversy as to if the petitioners have materially impaired the value and utility of the property. The petition in this regard was contested alleging that the petitioners have not interfered in possession of the respondents over the adjoining site. It was not-denied that there was civil litigation referred to by the respondent-landlords. But the petitioners' case was that the judgment and decree of the civil Court has not been disobeyed.
4. The learned Rent Controller as well as the Appellate Authority held that the petitioners have materially impaired the value and utility of the property i.e. the shop by demolishing the wall at point EF. it was,this ground that prevailed with them and the order of eviction as such was passed. As against the same, the present revision petition as referred to above has been filed.
5. Some of the facts in this regard as already pointed out above are not in controversy. It is not in dispute that the decree of possession by way of redemption had been passed in favour of the respondents and after the same symbolic possession by way of redemption had been delivered. A site pjan had been appended in that litigation. The copy of the same was Ex. A5. A wall at point' EF was shown to be in existence. Thereafter, it was contended that the petitioners (their predecessor-in-interest) interfered in the adjoining property. In that litigation another site plan Ex. A8 was filed. The wall was still shown to be in existence. It was during the pendency of the subsequent suit that wall EF is stated to have been removed. These facts reveal that in the earlier litigation it was shown and held that such a wall was in existence. The civil Court returned a finding to this effect that it is the petitioners who had removed the wall. To contend, therefore, that there was no wall is false. Both the learned Rent Controller and the Appellate Authority have returned a finding that there was a wall which has been removed. The said evidence discusses the evidence and comes to a rightful conclusion. There is no ground to come to a different view. It follows that there was a wall at point EF which has since been removed by the petitioners.
6. Faced with this situation it had been urged that removal of such a wall does not materially impairs the value and utility of the property. Reference in this connection may well be made to Section 13(2) (iii) of the Act. It reads:-
"(iii) In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or Local Authority or any Improvement Trust under some improvement or development scheme or if it has become, unsafe or unfit for human habitation."
It is abundantly clear from the reproduced provisions of the Act that it is not every impairment in the property that makes the ground of eviction available. There has to be material impairment which effects the value and utility of the property. The same has to be seen with the point of view of the landlord.
7. To appreciate the said controversy reliance can conveniently be placed on different precedents cited at the bar. Learned Counsel for the petitioners strongly relied upon the Division Bench decision of this Court in the case of Ved Parkash v. Darshan Lal Jain, (1986-2)90 Punjab Law Reporter 90. Herein the landlord was in full knowledge of the fact that the wall in question* had been removed and he continued to receive the rent. The Division Bench held that it was a total ac- quiescence on the part of the landlord and thus the ground of eviction was not available. In paragraph 15 the Court held:-
"Therefore, this plea could not be entertained. We are unable to agree with this contention. The categoric admission of the landlord in the witness box makes out a clear case of acquiescence on his part. He having full knowledge of the fact that the wall in question had been removed by the tenant had been receiving rent from him for more than four years and in fact filed the instant ejectment application nearly eight years from the time he gained the knowledge of the alleged act. The case is, therefore, squarely covered by the ratio of Mis New Garage Limited's case (supra)."
It is abundantly clear from the facts which has briefly been referred to that the cited decision was confined to its peculiar facts because it was held that there was acquiescence on the part of the landlord. That is not so alleged or pleaded in the present case. Otherwise also the facts indicate that the landlord was litigating with the petitioners and even when the wall was removed, he has to amend his plaint. Thus, there was no question of acquiescence.
8. In that event further reliance was placed on the decision in the case of Mrs. Anju Sharma v. Krishan Kumar, (1996-3)114 P.L.R. 549. In the cited case the Parda wall had been removed. It was held that it was not a load wearing wall. It had not impaired the value and utility of the building. Once again it is crystal clear from the sequence of facts that it was confined to the nature of the wall that was removed and, therefore, laying stress that there has to be material impairment in the value and utility of the property, the petition for eviction was dismissed. It will not apply to the facts of the present case.
9. pn the contrary in the decision in the case of Kartar Singh v. Kesar Singh, 1979 Punjab Law Reporter 750 this Court dealt with the question whether the tenant had made structural changes. He removed one wall to convert two shops into the one. This Court held that ground of eviction was available and in paragraph 7 the findings returned were:-
"From the aforesaid report it is evident that the petitioner has made great structural changes in the shops. He even removed one of the walls to convert the two shops into one. He removed doors, intervening portion of the shops and the Kothris behind it. The question is whether by making the said alternations, there is impairment in value or utility of the building or not."
Similarly in the case of Rameshwar Dass v. Jugal Kishore, 1980(2) Rent Law Reporter 373 this Court held that the question as to if there is a material alteration which affects the property has to be inferred from the structural changes that have been made. Herein a part of the wall had been demolished and door was fixed therein. It was concluded that ground of eviction was available. The findings are reproduced below: -
"There is no dispute that the question of impairment of the value or utility of the demised premise is a question of fact. It has to be determined taking into consideration the situation of the property, the use of which it is being put and the view point of the landlord about this also plays a great part. The fact has to be determined on the basis of evidence by the Rent Courts. The term 'material alternation' is to be taken in its ordinary meaning. If taking this term in this manner the Court comes to a conclusion that the alteration has materially or substantially changed the structure, then it would fall within the ambit of the provision for its interpretation in favour of the landlord. Both the tribunals drew an inference on facts that the act of the petitioner in demolishing a part of the wall and fixing a door in it has materially diminished or impaired the value or utility of the premises. This being a question of fact is to be interfered with in revision only if the assessment of evidence is erroneous or the conclusion on fact drawn on the basis is palpably wrong or improper. The scope of the revision in this Court under the provisions of the Act is not very wide."
A Division Bejich of this Court in the case of Narain Singh v. Bakson Laboratories and Anr., 1982(1) All India Rent Control Journal 1 dealth with the similar question and had concluded:-
"It is with the aforesaid approach towards Section 13(2) (iii) of the Act that one must notice that broadly there is a consensus of judicial opinion in this particular context and also in the context of corresponding provisions of other rent statutes that any material structural alterations which tend to change the nature and the character of the building would come within the mischief of the statute. The use of the word 'material' in the provisions only effectuates the hallowed rule of the law that it does not take account of trifles and consequently both the impairing of its value or its utility must be of a substantial and not inconsequential nature."
Same was the view expressed in the case of Harbans Sharma v. Smt. Pritam Kaur, 1982 (1) Rent Law Reporter 247 and the findings are:-
"The facts found in that case were that the tenant without the permission of the landlord converted the verandah of the premises in closed rooms and rooms into cabins to be used as rooms and living room. It is not necessary for me to discuss in detail the ratio of this decision because in Narain Singh's case (supra) the Division Bench of this Court has taken a contrary view and closing of the verandah and the making of any material alterations in the building have been held to be such acts as would impair the utility of the building. Though Mohinder Singh's case (supra) was not noticed by the Division Bench but is also stands impliedly overruled as the view expressed by R.N. Mittal, J. in Bawa Singh v. Smt. Pushpa Wati and Ors., 1980 (2) Rent Control Reporter 492 that any material change in the building would necessarily impair its value and utility, was expressly approved. As already noticed above, even in the present case, the wall intervening the two rooms has been removed converting them into a big room. The utility of the building as it existed prior to the removal of the wall has certainly been impaired so far as the landlord is concerned though it may have been enhanced so far as the tenant is concerned."
It is clear from aforesaid that ordinarily if it is merely a Parda Wall, it may in the peculiar facts of a case be held that it may not effect the value and utility of the property. But in this regard there cannot be straight jacket formula/Herein there is a shop. There is wall at point EF towards the southern side. The same has been demolished. It was one of the four walls of the shops. It was not a Parda wall.! Therefore, once the said wall has been removed, it follows that it would materially' impair the value and utility of the property. The Courts below rightly concluded in this regard. There is no ground to interfere.
10. For these reasons, the revision petition being without merit must fail and is dismissed. The petitioners are granted a month's time to vacate the shop.