Punjab-Haryana High Court
Parkash Chand And Ors. vs Thakur Dass And Ors. on 28 May, 2003
Equivalent citations: (2004)136PLR17, 2003 A I H C 4080, 2004 HRR 1 165, (2004) 2 RENCJ 36, (2004) 1 RENCR 147, (2004) 1 RENTLR 29, (2004) 1 PUN LR 17
JUDGMENT M.M. Kumar, J.
1. This petition filed by the tenant-petitioners under Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act'), challenges concurrent finding of fact on the issue as to whether the tenant-petitioners have made material alterations in the demised premises resulting in impairment of its value and utility. Both the courts below have concurrently found that there are material alterations and additions made by the tenant-petitioners in the demised premises without the permission of the landlord-respondents resulting in impairment of its value and utility.
2. The landlord-respondents are owners of the demised premises which were let out to tenant-petitioner No. 1 Sh. Parkash Chand, at a monthly rent of Rs.750/-. A rent note dated 1st June, 1969 for a period of one year was executed. The tenancy having continued even after the period of one year, acquired a statutory character. The landlord-respondents filed ejectment petition under Section 13 of the Act on the grounds of nonpayment of rent w.e.f. 1st October, 1980, personal necessity of one of the landlord-respondent, namely, Shri Jagdish Chand, sub-letting by tenant-petitioner No. 1 to tenant-petitioner No. 2 to 7 and that the tenant-petitioners Nos. 3 to 7 have made material and unauthorised additions and alterations affecting the utility and value of the demised premises. The only ground which survives for consideration of this Court is the last one.
3. The tenant-petitioners contested the ejectment petition and all other pleas were decided in their favour except the ground of material and unauthorised additions affecting the value and utility of the demised premises. The stand of the tenant-petitioners on the aforementioned plea was that they had not made any unauthorised additions or alterations which might have affected the value and utility of the premises. It was, however, admitted that one dry latrine was controverted into a flush latrine. The Rent Controller, after thorough examination of the evidence produced, recorded a finding that structural changes have been made by the tenant-petitioners adversely affecting the value and utility of the property. The Appellate Authority also concurred with the finding recorded by the Rent Controller. After discussing the evidence produced in considerable details in paras 13, 14 and 15, the learned Appellate Authority concluded that the material alterations and additions in the demised premises have been made in its opinion reads as under: -
" In my opinion, from the evidence adduced by the applicants-landlords on the file, it can be safely concluded that the appellants had made material additions/ alterations in the property in dispute. Admittedly, a flush latrine has been constructed. It is not proved that any dry latrine would have been provided at the place where the flush latrine now exists because it immediately abuts the passage and the Deorhi. From the statement of Sh. Hem Raj coupled with his report Ex.A-2 and the statement of Sh. Shanti Sarup, it is further apparent that various structural alterations and additions have been made in the property as detailed in the report Ex.A2 and the plaint Ex. A3.
The faet that unauthorised additions/alterations have been made is further strengthened from the fact that there now exist 11 rooms and a verandah as admitted by Sh. Shamsher Singh as well as by Sh. Parkash Chand RWs, whereas only seven rooms and a verandah existed in the property in the year 1978-79 indicating the additions/alterations were made thereafter. Then there is no reason to disbelieve the dis-interested testimony of Sh. Malvinder Singh Overseer, Municipal Committee, Sunam, who had detected the unauthorised additions/alterations being made and had made his reports, the copies of which are Ex.A9 and, Ex.A10. The notices were issued on the basis of those reports under the signatures of Sh. Shiv Kumar Mittal, Executive Officer (PW6) under sections 195, Punjab Municipal Act, Ex.A5 to Ex.A8 are the copies of those notices/orders."
4. Apart from the finding that there were structural alterations and additions, learned Appellate Authority also raised adverse inference from the fact that only tenant-petitioner No. 1 had appeared as a witness in support of the defence. His statement has not been considered significant for the reason that he has not been staying, in the premises and as such the first hand knowledge and information which could have come forward from those who were staying in the demised premises, did not come forward. This fact further fortified the conclusion that material alterations and additions have been made in the demised premises.
5. The next question considered by both the Courts below is whether the additions and alterations made have materially affected or likely to affect the value and utility of the demised premises because it was claimed that the alterations and additions made by the tenant-petitioners have enhanced the value and utility of the property. The basis of the aforementioned claim was the statement made by one Sh. Hem Raj Singla who has appeared as PW2 and was working as Sectional Officer, PWD, (B and R ) Sunam. On the basis of the ratio of a Division Bench judgment of this Court in Narayan Singh v. Bakson Laboratories I.L.R. (1982)-1 Pb. & Hr. 462 the learned Appellate Authority concluded that the value and utility of the building had been adversely affected. The statement of Sh. Shanti Sarup, who appeared as PW-1, has been rightly relied upon by both the Courts below to reach the aforementioned conclusion.
6. I have heard Sh. M.L. Sarin, learned counsel for the tenant-petitioners who has argued that on the basis of the statement of Sh. Hem Raj, who has appeared as PW2 alongwith his site-plan, Ex.A3 and the report, Ex.A2 produced by him the finding that there are material alterations affecting the value and utility of the demised premises, cannot be accepted. According to the learned counsel, the finding is conjectural and there is no evidence to sustain that finding. The learned counsel has also pointed out that addition of bath room which has been taken into considerations, have not even been pleaded and the expert, Sh. Hem Raj, has gone beyond the pleadings by making a statement to that effect. Learned counsel has then argued that perusal of Exhibits A3 and A6 which are notices dated 14th January, 1981 and 11th February, 1981 under Section 195 of Municipal Act, 1911 issued to the tenant-petitioners and also the report, Exhibits A9 and A10 are manipulated at the instance of the landlord-respondents. It has been pointed out that this happened soon after an agreement to sell dated 26th November, 1980, Exhibit R2 was entered into. Therefore, the whole effort was to get the tenant-petitioners ejected and notices, Exhibits A5 and A6 were manipulated. Learned counsel has also pointed out that the Division Bench judgment in the case of Narayan Singh (supra) on which heavy reliance has been placed by the Appellate Authority stands over-ruled by the judgment of the Supreme Court in the case of Waryam Singh v. Baldev Singh, (2003-1)133 P.L.R. 154 and therefore, the basis of the judgment of the Appellate Authority is completed knocked out. It is urged that the landlord-respondents should have proved within the meaning of Section 13(2)(iii) of the Act that alterations and additions affecting the utility and value of the demised premises have been made. In the present case, even dates of such alterations and additions have not been mentioned. The learned counsel maintained that it is not every change or repair in the demised premises which would result into material alterations affecting the utility of the demised premises. For this proposition, learned counsel has placed reliance on the judgment of the Supreme Court in the case Sh. Om Pal v. Anand Swarup, (1988-2)94 P.L.R. 699 and a Division Bench judgment of this Court in the case of Bhupinder Singh v. J.L Kapur, 1992(2) Rent L.R. 104. He has also placed reliance on another judgment of the Supreme Court in Sh. Brijendra Nath Bhargava and Anr. v. Sh. Harsh Wardhan and Ors., 1988(1) S.C.C. 455 to stress that burden of proof even in cases of structural alterations has to be discharged by the landlord. The learned counsel has further submitted that for proper enjoyment of the demised premises, kitchen and bath rooms are necessary in residential accommodation and for that matter, he has referred to various judgments where the building was rented to Radiologist who constructed a dark room or the floor was lowered for proper utilisation of the demised premises. Those judgments are Sub-hash Chancier v. Yalaiti Ram, 1994(1) R.C.R. 630, Dr. J.S. Sodhi v. Mela Ram, (2000-1)124 P.L.R. 684 and Gurmit Singh v. Kirpal Kaur, 1992(2) R.C.R. 380. Reliance has also been placed on the judgment of Privy Council in the case of Sidil Mohammed Shah v. Mt. Saran, A.I.R. 1930 P.C. 57(1) for the proposition that in the absence of pleadings no evidence could help to support the findings.
7. Sh. R.K. Batta, learned counsel for landlord-respondents has drawn my attention to ground 2(D) of the ejectment application wherein it is averred that the tenant-petitioners have constructed a kitchen and a flush latrine. It has further been averred that the pipe has been laid down after breaking the wall and some portion of the arch-door way has also been included in the wall of the flush latrine. The old floors of entire courtyard and the rooms have been changed with the new one and a new wall has been erected in the courtyard which has impaired the value and utility of the premises. The learned counsel has further submitted that in the reply filed by the tenant-petitioners, the averments made in para 2(D) have not been even specifically controverted. The only reply which has been given by the tenant-petitioners is that they had got fitted a flush seat in the latrine which was already in existence. He has then pointed out that Sh. Shamsher, Singh, RW2 who was their expert, has admitted that one kitchen, two small stores and one bath room, have been constructed at a later stage. Similar statements have also been made by Sh. Hem Raj, PW2 produced by the landlord-respondents. The learned counsel maintained that one Malvinder Singh, Overseer, Municipal Committee, Sunam has appeared and no cross-examination was conducted on him regarding preexisting dry latrine because he had mentioned in his report dated 9th January, 1981, Exhibit A9 that new flush latrine and kitchen were constructed. According to the learned counsel, similar statement has been made by Satish Kant, Clerk; Municipal Committee, Sunam (PW8) and PW6 Sh. Shiv Kumar Mittal, Executive Officer. A reference has also been made to the notices, Exhibits A5 and A6 issued under Section 195 of the Municipal Act, 1911. On the basis of the aforementioned evidence, learned counsel submitted that this Court would not be inclined to interfere in concurrent findings of fact, as has been laid down by the Supreme Court in the case of Resham Singh v. Raghbir Singh, 1999(2) Rent L.R. 654 and Lekh Raj v. Muni Lal, 2001(2) Rent L.R.5,
8. Sh. Battas has also pointed out that the question of impairment of utility and value of the demised premises has to be examined from the point of view of the landlord and not that of the tenant-petitioner. For the aforementioned proposition, he has placed reliance on two judgments of this Court in the cases of Satish Kumar and Company v. Krishan Gopal, 1998(2) Rent L.R. 237 and Subhash v. Ganga Devi,1996(2) Rent L.R. 519. For the same proposition, learned counsel has also placed reliance on various other judgments viz. Union of India v. Joginder Singh, 1983(2) Rent L.R. 464 Kharar Saw Mill v. Prem Kaur, 1995(2) Rent L.R. 729, Mohan Lal Ashok Raj v. Lajwanti Devi, 1997(2) Rent L.R. 197 and Manohar Lal Mulwani v. Punjab Stale Cooperative Bank Limited, 1984(2) Rent L.R. 190. On the aforementioned authoritative pronouncements of this Court as well as Supreme Court, learned counsel, has argued that even if the additional construction or alterations have increased the value of the building, it would not make any material difference because the impairment in the utility of the building has to be viewed from the point of view of the landlord alone. According to the learned counsel, there is no escape from the conclusion that construction of a flush toilet by removing the arch door and merging the same for constructing the toilets and the construction of a kitchen, are such constructions which have impaired the utility of the building. He has also submitted that no interference in the finding of fact based on cogent evidence would be warranted by this Court.
9. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and have also minutely perused the record. In my opinion, this petition is liable to be dismissed because a look at the pleadings of the parties in para 2(D) would make it evident that even the averments made in that para, have not been controverted by the tenant-petitioner in the corresponding para. The averments made in para 2(D) by the landlord-respondent read as under:-
"That the respondent Nos. 3 to 7 who are in possession of the compound, have made material alteration therein. They have constructed a kitchen and a flush latrine. The pipe has been laid down after breaking the wall There was a Daat (arched door-way) in the Deodhi. Some portion of the Daat has been included in the wall of flush latrine. The old floors of entire courtyard and the rooms have been changed with the new ones. Brick flooring has been made in the roofs of compound. The door of the room constructed in the courtyard has, been closed and it has been opened towards other side. A new wall has been erected in the courtyard, which has impaired the value and utility of the compound." (emphasis (in italics) addedl
10. The aforementioned averments have been repelled in the corresponding para of the reply which reads as under;-
"That the para No. 2D is wrong and denied. This fact is denied that the respondents have made any material alterations in the compound in dispute and that it has impaired the value and utility of the premises. However, it is correct that the respondents have got fitted a flush seat in the latrine, but the latrine was already constructed. Only the flush seat has been got fitted in the latrine.
11. A perusal of the aforementioned averments made by the parties makes it evident that the tenant-petitioners have not even disputed the construction of a kitchen. The averments that the arched doorway has been included in the wall of the flush latrine, have also not been disputed. The averments emphasised in para 2D (supra) including new wall has been erected in the courtyard or the door has been closed, have not been controverted. Once the fact has not been controverted in the written' statement it would amount to admission. The construction of flush latrine has been conceded by the tenant-petitioner himself and these fact have not been controverted. Admissions are regarded as the best evidence because it is the statement made by the party against his own interest. In this regard reliance can be placed on a judgment of the Supreme Court in the case of Massa Singh v. Ch. Baru Mal Charitable Trust. (1988)2 Rent L.R. (S.C.) 1. It is further clear from the judgments of both the Courts below that huge evidence has been adduced against the tenant-petitioners showing that material alterations have been affected and those alterations have adversely affected the utility of the demised premises, if the same are examined from the point of view of the landlord-respondent. It is well settled that in cases involving structural alterations without permission of the landlord, the burden of proof on the landlord to show that the value has been impaired or the utility has been decreased is much lighter. Section 13(2)(iii) of the Act reads as under:-
"13. Eviction of tenants.-
(1) *** *** *** (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 applicant, is satisfied-
(i) *** *** ***
(ii) *** *** ***
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
12. The aforementioned provision came up for consideration of the Supreme Court in the case of Om Parkash v. Amar Singh, A.I.R. 1987 SC 617 where various tests have been laid down to determine whether the alterations made by the tenant adversely . affect the demised premises so as to lead to the eviction of the tenant. Those tests are as under:-
(a) the tenant has made constructions/alterations without the consent or permission of the landlord;
(b) the constructions and alterations are major and substantial in nature as distinguished from minor and temporary alterations;
(c) such constructions/alterations have materially impaired the value or utility of the demised premises;
(d) in determining as to whether the value or utility of the demised premises has been impaired, the Court must address itself to the nature and character of the construction and the extent to which the same have been made giving full regard to the purpose for which the premises were let out to the tenant;
(e) the view point of the landlord and not that of the tenant regarding utility and value of the building, has to be kept in view.
13. The principles laid down in Om Parkash's case (supra) were followed, applied and approved in the cases of Brijendra Nath Bhargava v. Harsh Vardhan, AIR 1987 SC 617 and Vipin Kumar v. Roshan Lal Anand (1988)l SCC 454 The case of Vipin Kumar (supra) has also been followed and relied upon in the case of Gurbachan Singh v. Shivalik Rubber Industries. (1996-2)113 P.L.R. 694 (S.C.) Section 13(2)(iii) of the Act came up for interpretation before the Supreme Court in Gurbachan Singh's case (supra). The interpretation given by the Supreme Court of the aforementioned Section reads as under:
"A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building of rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish the quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word 'impair' cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of suggesting impairment. Further the use of the word value means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the. needs or desires of a person. Thus, the ground for eviction of a tenant would be available to landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerable affected its use for some desirable practical purposes. The decrease or deterioration, in other words the impairment of the worth and usefulness of the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else...."
14. The Supreme Court further held that impairment of utility and value of the building has to be examined from the point of view of the landlord and not that of a tenant. The following para in this regard in the case of Vipin Kumar's case (supra) was followed by the Supreme Court in Gurbachan Singh's case:
"The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of Clause (iii) of. Sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value and utility of the demised premises."
15. The Supreme Court after following the above principles ordered ejectment of the tenant in Gurbachan Singh's case (supra) and observed as under:-
"that even if it is assumed that the tenant-respondents raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note Ext. A1, then the rest of the construction, additions and alterations of the five shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is a relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops, partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purposes and the intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 1392)(iii) of the act...." 16. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court in the aforementioned judgments, it becomes evident that merger of arched door-way for construction of flush latrine, construction of kitchen, erection of new walls, closing of door and addition of stores, are the material alterations and additions which have been made by the tenant-petitioners without any permission of the landlord-respondents. Demolishing arched doorway and undertaking major construction activity would certainly impair the utility of the demised premises from the point of view of the landlord-respondents. The area of the court yard has been considerably reduced. No explanation has come from the tenant-petitioners as to how the number of rooms has gone up from 7 to 11. Therefore, the findings recorded by both the courts below that the additions and alterations have resulted into impairment of the utility of the demised premises, cannot be interfered with.
16. The argument of the tenant-petitioners that no impairment of the value is to be inferred, does not require any detailed examination for the reasons that the substantial alterations and additions made would lead to irresistible conclusion that the structural design of the demised premises like arched doorway and merging the same for constructing the flush latrine, have been changed and the utility of the building from the point of view of the landlord-respondents has been impaired. Similar conclusion has to be arrived at if we examine the addition of kitchen. The report of the expert, Shri Hem Raj Singla, PW2 and the site plan, Exhibit A3 would clearly show that in the courtyard area, bath room Nos. 1 and 2 have been added and the side wall of the kitchen has .been constructed. The floors of the Deodi and .courtyard has been constructed new. Certainly, this type of construction raised by the tenant-petitioner would impair the utility of the courtyard which was left open by the landlord-respondents. Therefore, the principles laid down by the Supreme Court in Om Parkash's case (supra) and Vipan Kumar's case (supra) and Gurbachan Singh's case (supra) would fully apply to the facts of the instant case and argument that the utility has not been impaired, is liable to be rejected.
17. The argument of the tenant-petitioners that no impairment of the value is to be inferred, does not require any detailed examination for the reason that the substantial alterations and additions made would lead to irresistible conclusion that the structural design of the demised premises like arched doorway and merging the same for constructing the flush latrine, have been changed and the utility of the building from the point of view of the landlord-respondents has been impaired. Similar conclusion has to be arrived at if we examine the addition of kitchen. The report of the expert, Shri Hem Raj Singla, PW2 and the site plan, Exhibit A3 would clearly show that in the courtyard area, bath room Nos. 1 and 2 have been added and the side wall of the kitchen has been constructed. The floors of the Deodi and courtyard has been constructed new. Certainly, this type of construction raised by the tenant-petitioner would impair the utility of the courtyard which was left open by the landlord-respondents. Therefore, the principles laid down by the Supreme Court in Om Parkash 's case (supra) and Vipan Kymar 's case (supra) and Gurbachan Singh 's case (supra) would fully apply to the facts of the instant case and the argument that the utility has not been impaired, is liable to be rejected.
18. The other argument that the conclusions are based on conjectures and surmises would also not require detail examination in View of the fact that this Court, while exercising jurisdiction under Sub-section (5) to Section 15 of the Act, would not act as an Appellate Court on the findings of fact. It is now well settled that as long as there is evidence to sustain the findings, no interference by this Court under Sub-section (5) to Section 15 of the Act, would be warranted. Such a view has been taken by the Supreme Court in the cases Vaneet Jain v. Jagjit Singh, (2000-3)126 P.L.R. 263 (S.C.) Sarla Ahuja v. United India Insurance Co. Ltd, (1998)8 SCC 119 and Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta. (1999J6 SCC 222 Similarly, the argument that kitchen and bath rooms are required for proper enjoyment of the demised premises does not deserve to be accepted because under the garb of utilising the demised premises, a tenant cannot make wholesale additions so as to impair the utility of the demised premises by defacing the structure permanently. Therefore, I do not feel persuaded to take a view different view than the one taken by both the Courts below.
19. The other argument raised by Shri M.L. Sarin, learned counsel for the tenant-pe-titioner that no averments were made with regard to construction of bath rooms and the statement made by Hem Raj PW2 alongwith his report/site plan cannot be taken into consideration would also not require any detail consideration because under Order VI Rule 2 of the Code, the law of pleadings require to state material facts and not the evidence. It is true that the pleadings of parties being foundation of the case are necessary in their material parts. Substantive law in this regard has to be kept in view. In the present case the provisions of Section 13(2)(iii) of the Act requires the landlord to state such acts as are likely to impair value or utility of the building or rented premises. Addition of bath rooms as elaborated by evidence would not constitute these material facts which are required to be stated by the law of pleadings read with the substantive law. Even otherwise, at this stage it cannot be argued that the evidence should not be looked into because both the Courts below have considered the evidence and the parties were aware of the case of each other. In this regard, reliance can be placed on the judgment of the Supreme Court in Kali Prashad v. Bharat Cooking Coal AIR 1989 SC 1530. Moreover, no such argument has been raised before the Courts below. Therefore, there is no merit even in this contention raised by the learned counsels.
20. For the reasons recorded above, this petition fails and the same is hereby dismissed.