Punjab-Haryana High Court
The Jalandhar Co-Operative Printing ... vs Sh. Vijay Seth (Died) on 5 February, 2003
Equivalent citations: (2004)136PLR791
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The petitioner-landlord is a registered society. It is alleged to have rented out the portion presently in occupation of the respondent Vijay Sethi to M/s Talib Sethi Publishers, (a partnership firm), at a monthly rent of Rs. 55/- about, twenty years before the execution of the rent note dated 9.9.1978. Before the execution of the rent note, there were dispute and quarrels between the petitioner-landlord and the respondent-tenant. In order to put an end to the same, the parties agreed to construct a wall so as to bifurcate the portion of the building in possession of the parties, i.e. the landlord and the respondent. The aforesaid bifurcation by the construction of a wall was to be effected by the petitioner-landlord. In addition to the said bifurcation, it was also agreed that an independent stair case would be provided by the petitioner-landlord to the respondent-tenant. The evidence on the record establishes that the needful was done by September, 1978.
2. Having bifurcated the portion of the building in occupation of the landlord and the tenant, a fresh rent note was executed on 9.9.1978 between the petitioner-landlord and Vijay Sethi i.e., one of the partners of the erstwhile tenant M/s Talib Sethi Publishers. The aforesaid Rent Note is available on the record of the Rent Controller as Ex.A2. The rent note dated 9.9.1978 expressly debars the tenant Vijay Sethi to effect any alterations in the tenanted premises without the express consent of the petitioner. On 8.8.1980, the petitioner addressed a telegram to the respondent asking him not to effect any addition and alteration in the premises. The same was followed by a notice dated 9.8.1980. The telegram is available on the record of the Rent Controller as Ex.A3 and notice as Ex.A4.
3. On 19.9.1980, the petitioner-landlord filed an ejectment application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 seeking the eviction of the respondent-tenant on the ground that the respondent-tenant had effected additions and alterations to the tenanted premises thereby impairing the value and utility of the premises. In this behalf, it was pointed out that the respondent-tenant had enclosed the veranda on the ground floor as well as on the first floor of the premises. The respondent-tenant in his defence pleaded that the alleged construction, namely, enclosure of the two varandah as had already been effected prior to the execution of rent note dated 9.9.1978.
4. The Rent Controller vide order dated 7.9.1982 rejected the contention of the petitioner-landlord and accordingly dismissed the ejectment petition. Dissatisfied with the order passed by the Rent Controller, the petitioner-landlord preferred as appeal. The Appellate Authority concurred with the order passed by the Rent Controller and accordingly dismissed the appeal on 2.8.1984. Aggrieved with the orders passed by the Rent Controller as well as the Appellate Authority, the petitioner-landlord has approached this Court through the present petition.
5. Learned counsel for the petitioner in her effort to establish that the construction alleged to have been made by Vijay Sethi was initiated in 1980, placed reliance on the telegram Ex.A3 as well as notice Ex.A4. Reading extensively from the order passed by the Appellate Authority, learned counsel for the petitioner emphasised that the courts below had erred in evaluating the statement made by Sarjeevan Lal, (Manager of the society, which owns the premises in question). The statement of Sarjeevan Lal was recorded as AW1. The aforesaid statement has also been read out during the course of arguments. Learned counsel for the petitioner relying on a judgment rendered by this Court in Kasturi Lal v. Muni Lal and Anr., 1 (1994-1)106 P.L.R. 302 and the decision rendered by the Apex Court in "Vipin Kumar v. Roshan Lal Anand and Ors., (1993-2)104 P.L.R. 349 (S.C.) submits that the act of covering a veranda amounts to impairment in the value and utility of the premises. On the aforesaid basis, learned counsel for the petitioner seeks the setting aside of the findings and conclusions recorded by the Courts below.
6. The first question to be determined is whether the alleged alterations were effected prior to the execution of rent note dated 9.9.1978. It is possible to arrive at the conclusion that the aforesaid constructions were made prior to the execution of the rent note dated 9.9.1978, then the question whether the said alterations had the effect of impairing the value and utility of the premises would not arise. It is, therefore, that I take upon myself to deal with the said issue in the first instance. In order to assert that the alterations had been made subsequent to the execution of rent note dated 9.9.1978, learned counsel for the petitioner has relied on Ex.A2, which expressly depicts that the rent of the premises was enhanced from Rs. 55/- per month to Rs. 250/- per month after the partition wall was constructed. It is the pointed submission of the learned counsel for respondent-tenant that unless the partition wall has been constructed, there was no question of enclosing the veranda.
7. The closure of the veranda, which is the basis for seeking the eviction of the respondent-tenant is claimed to have been made after the execution of the rent note Ex.A2 dated 9.9.1978. In order to controvert the aforesaid contention of the learned counsel for the petitioner-landlord, learned counsel for the respondent-tenant has invited the attention of this Court to the statement of Sarjeevan Lal AW1, who during the course of examination deposed, that the veranda on the ground floor of the tenanted premises and the premises in occupation of the petitioner-society was completed before 1978. Having acknowledged as correct the fact that the veranda on the ground floor had been covered before 1978, the petitioner-landlord clearly acknowledged the fact that a part of the alleged alterations had been made well before the execution of the rent note dated 9.9.1978.
8. There is no clear cut conclusion so far as the vernada on the first floor is concerned. That being so, it would be imperative to examine another contention advanced by the learned counsel for the petitioner-landlord, namely, whether by covering of the veranda on the first floor the respondent-tenant can be considered to have impaired the value and utility of the tenanted premises. In so far as the aforesaid assertion is concerned, learned counsel for the respondent-tenant has invited the attention of the Court to the statement of Sarjeevan Lal, AW1 who in his examination-in-chief has stated in reference to the alterations that it has also affected the shape of the disputed property and has thus impaired its value.." it is submitted by learned counsel representing the respondent-tenant that before a tenant can be required to be evicted from the premises, it is essential to establish impairment not only in the value of the premises but in the utility of the premises. It is the case of the learned counsel for the respondent that the statement of Sarjeevan Lal having not made a reference to the impairment in the utility of the premises, cannot be considered to be sufficient for ordering the eviction of the respondent-tenant.
9. It is not possible for me to accept the aforesaid contention advanced by the learned counsel for the respondent. The alteration made on the first floor of the premises is limited to a wooden frame installed in front of the veranda. The wooden frame is stated to be affixed to the walls with "guttis". Can the alteration effected by affixing a wooden frame by "guttis" be termed as a permanent alteration? If the answer to the aforesaid query is in the affirmative only then further consideration is necessary. Although there is no photograph of the premises on the record of this case yet during the course of hearing, learned counsel for the petitioner-landlord produced a photograph depicting the alterations having been made in the veranda on the first floor. A perusal of the photograph clearly depicts a wooden frame cannot be described to the alteration of a permanent nature. In such circumstance, it is natural to conclude that the alteration of the first floor veranda is temporary and removable. I shall now proceed to examine the two judgments relied upon by the learned counsel for the petitioner-landlord. In so far as the judgment rendered by the Apex Court in Vipin Kumar's case (supra) is concerned, the tenant had constructed a wall in the veranda of the premises and put a door therein, which according to the conclusions drawn by the Apex Court, materially impaired the value and utility of the building as flow of light and air was stopped. The aforesaid construction was clearly of a permanent nature. Since the factual position of the case in hand is totally dissimilar to the facts in Vipin Kumar's case (supra), the conclusion drawn in the aforesaid case cannot be relied upon by the petitioner-landlord so as to determine the controversy in hand. In so far as the decision of this Court in Kasturi Lal's case (supra) is concerned, the veranda of the tenanted premises in the said case had been converted into a room. The alteration in Kasturi Lal's case was also of a permanent nature. That also is not the position in the present controversy, and also such no mileage can be drawn by the petitioners on the basis of the decision rendered by this Court in Kasturi Lal's case.
No other point was raised.