Punjab-Haryana High Court
Ravinder Kumar vs Surinderjit Singh on 30 November, 1999
Author: V.S Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S Aggarwal, J.
1. The present petition has been filed by Ravinder Kumar and others (hereinafter described as 'the petitioner') directed against the order of eviction passed by the learned Rent Controller, Gurdaspur dated 19.8.1994 and the Appellate Authority, Gurdaspur dated 28.3.1998. The Appellate Authority had dismissed the appeal of the petitioners and upheld the order of eviction passed by the learned Rent Controller.
2. The relevant facts are that an eviction petition had been filed by Surinderjit Singh respondent with respect to the premises in dispute. It had been asserted that petitioner and others were tenants in the suit premises and are liable to be evicted because they had not paid the arrears of rent and have materially impaired the value and utility of the property. The courtyard was stated to be 19'x9'. A part of it has been covered. An unauthorised construction has been set up. In addition to that it was asserted that the tenants are guilty of such acts and conduct which have nuisance to the occupants of the building. They have changed the user of the property. They have set up a cotton ginning mill and the courtyard was covered.
3. The petitioners and others contested the eviction application. An objection was raised that it was barred by the principles of res judicata. It was alleged that no additions and alterations have been made. The value and utility of the property has not been impaired. On the first date of hearing it was asserted that entire arrears of rent have been tendered.
4. The learned Rent Controller held that by the acts of the petitioners and others the value and utility of the property has been impaired on the said ground the order of eviction had been passed. An appeal was preferred. As already pointed out above, the same was dismissed, hence, the present revision petition.
5. Learned counsel for the petitioners alleged that earlier on a similar plea an eviction application had been filed which had been dismissed. According to him, therefore, the second petition on the same cause of action was barred by the principles of res judicata. It is not in controversy that earlier an eviction application had been filed on the ground that the petitioner-tenants has constructed another shop in the courtyard and in this regard an issue was framed. A finding of fact was returned against the respondent-landlord. Despite that necessary consequences must follow and it must be held that the said decision is not operating as res judicata.
6. It is true that the learned Rent Controller and the Appellate Authority is not strictly a civil Court. They are creations of statute. Still they have the trapping of the civil Court. A trial be conducted and, therefore, the rule of the game must be made applicable. If there is an earlier litigation between the parties pertaining to an earlier controversy, it can operate as res judicata. But it will not so operate in facts of the present case. The reason being that if after the earlier decision some fresh impairment in the value and utility of the property has been effected, in the event, it cannot be termed that the second petition for all times to come is barred. It is the case of the respondent that now the value and utility of the premises has been impaired and, therefore, the same has to be seen.
7. Local Commissioner had been appointed in the Court of the learned Rent Controller. It was found that the front portion was covered with tin sheets with support of the wooden pillars. It is also mentioned that the main entrance was having a big door of tin sheets which was affixed on both sides of the entrance. The finding has been accepted by the Appellate Authority. Therefore, it must be taken as a finding of fact that a tin roof is on the wooden planks with a tin gate has been placed on the courtyard. In this backdrop it has to be shown whether it has impaired the value and utility of the property or not.
8. Under Section 13(2)(iii) of the East Punjab Urban Restriction Act, 1949 the ground of eviction is available if the landlord proves:-
"13(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.
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or."
It is abundantly clear from the bare provisions of the relevant ground of eviction that every impairment of the suit property does not make the tenant liable to be evicted. It has to be a material impairment in the value and utility of the building or the rented land. The material impairment necessarily means something more than a mere impairment. It will go with the facts and circumstances of each case that value and utility of the property has materially been impaired or not.
9. Learned counsel for the respondent relied upon the decision of this Court in the case of Raj Kumar v. Ram Kanwar and another, 1997(2) Rent Law Reporter 689. Perusal of the cited judgment clearly reveals that a concurrent finding of fact had been recorded that the tenant had constructed two walls 10 feet high on the platform. He had set up tin sheets over them. The platform was there which destroyed altogether. It was held that it amounts to materially impairing the value and utility of the property. The facts clearly show the distinction between the present controversy and the one in the case of Raj Kumar (supra). Herein on pucca walls had been set up. The tin sheets are resting on wooden planks. Therefore, it is obvious that the ratio decidendi is totally different from the facts of the present case.
10. In that event reliance was placed on behalf of the respondent on the decision in the case of Smt. Taraa Rani alias Maya Devi and others v. Murti Shri Dwarka Dhish Ji Maharaj, Installed in the Temple of Shri Dwarka Dhish Ji Maharaj, Cooper Road, Amritsar and others, 1993(1) 103 Punjab Law Reporter 549: 1993(1) RCR(Rent) 431 (P & H). The tenants therein had converted (covered?) a major portion of the courtyard. A service station had been constructed. A lift had been constructed in it. A shed had been fitted outside the garage. The outer wall of the building had been demolished. This Court concluded:-
"The tenant has covered a major portion of the court-yeard by a tin shed. A service station has been constructed in the disputed building by constructing a lift in it and a shed has been fitted outside a garage. The construction has been carried out of the garage by demolishing the outer wall of the disputed building. Light and air of the rooms in front of which the tin shed has been constructed, has been reduced. I am in agreement with the view taken by the Courts below that alterations and additions made by the tenant would impair and diminish the value and utility of the disputed premises. Accordingly findings recorded by the Courts below on issue No. 1 are affirmed. Finding on any other issue has not been challenged before me."
Once again the cited decision is confined to the peculiar facts because no such wall had been demolished herein. No lift had been set up. The decision, therefore, is distinguishable.
11. Similarly, in the case of Fakir Chand v. Anguri Devi, 1998(2) Rent Law Reporter 438: 1998(2) RCR (Rent) 416 (P & H), this Court had concluded that there was material impairment in the value and utility of property because the structure set up of permanent nature. The findings of the Court are:-
"I have no hesitation in concurring with the findings recorded by the learned Appellate Authority that covering of the entire "Chabutra" from three sides and installing two doors in the front, would show that alterations made by the tenant are of material nature. As observed above, by raising the disputed construction, the tenant has materially changed this frontage of the shops in question giving them a totally new look. The argument of the learned counsel for the petitioner-tenant is that shed is a temporary structure and can be removed and would not amount of material impairment. But what about the installation of two doors and covering the entire raised platform thereby shutting the light and air and changing the very outlook of the shops in question. This certainly is not a temporary type of alterations made by the petitioner-tenant are permanent in nature and have materially impaired the value and utility of the demised premises. The findings recorded by the Rent Controller and the Appellate Authority in this regard are well-reasoned and cannot be interfered with the exercise of the revisional jurisdiction of this Court:
That is not so in the present case.
12. The attention of the Court on behalf of the petitioners was drawn towards the decision of this Court in the case of Shri Anup Chand and others v. Shri Tarlok Singh, 1977 All India Rent Control Journal 752 : 1977(2) RCR(Rent) 121 (P & H). In the cited case, the tenant had constructed false wooden roof and ceiling and set up wooden stair. It was held that it does not amount to make changes of permanent nature and value and utility of the property has not been impaired. Once again the case of Mohinder Singh v. Om Prakash and others, 1978(1) All India Rent Control Journal 406: 1978(2) RCR (Rent) 401 (P & H) the tenant had cemented floor. The door in between the shop and the compound was roofed with wooden planks. This Court had held that this does not amount to materially impairing the value and utility of the property. The findings returned were:-
"It is also apparent from the evidence that on account of the re-construction of the common wall, the wall intervening the shop and the compound had also to be re-constructed and if while, doing so an opening is left in that wall instead of original door, it is not a case of a change in the texture of the building. As regards the roofing of the compound, there is the irrefutable evidence in the shape of Inspection Note recorded by the Rent Controller that this roof is only made of wooden planks which cannot be deemed to be a pucca construction. The temporary roof of that type for the proper enjoyment of the courtyard cannot be deemed to be a material alteration."
13. The Supreme Court in the well known decision in case of Om Prakash v. Amar Singh and another, A.I.R. 1987 S.C. 617: 1987(1) RCR(Rent) 326 (SC) while referring to the expression of as to what could be the 'material impairment' held:-
"The material alterations contemplate change of substantial nature of affecting the form and character of building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing portion (partition?) in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as inspite constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation."
14. In the subsequent decision in the case of Shri Brijindra Nath Bharagava and another v. Shri Harsh Wardhan and others, A.I.R. 1988 S.C. 293 rendered under the Rajasthan Premises (Control of rent and Eviction) Act, 1950 the expression for consideration was "material alteration". The tenant had constructed a balcony on the cabin of showroom. The wooden beams were there to support. It was held that it does amount to material alteration. More recently in the case of Bir Devinder Singh v. Mangat Ram, 1995(1) 109 Punjab Law Reporter 728: 1995(1) RCR (Rent) 440(P&H) this Court, where a tin shed had been set up, had concluded that it will not amount to materially impairing the value and utility of the property.
15. The precedents quoted above clearly show that it has to be decided on the facts and circumstances of each case as to whether any particular act has impaired the value and utility of the property. Normally when temporary structures are set up, it can easily be removed. There has to be compelling reasons to hold that it has materially impaired the value and utility of the property. The same are missing. On wooden planks the tin sheets have been set up. It is obviously a temporary structure. In fact no structural change has been set up nor any change exists which can prompt this Court to conclude otherwise. The learned Rent Controller and the Appellate Authority fell into a grave error and committed and illegality in passing the order because it is contrary to the provisions of the Act.
16. For these reasons, the revision petition is allowed. The impugned orders are set aside and instead the eviction petition is dismissed.
17. Revision allowed.