Allahabad High Court
Siya Ram Sharma vs Dr.Ajit Kumar Bhattacharya on 12 March, 2019
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 145 of 2019
Petitioner :- Siya Ram Sharma
Respondent :- Dr.Ajit Kumar Bhattacharya
Counsel for Petitioner :- Vishnu Gupta
Counsel for Respondent :- Sujan Singh, Abhijit Banerji,Manish Goyal
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the judgement and decree dated 19.1.2013 whereby the revision filed by the plaintiff-opposite party (for short 'the landlord') under Section 25 of the Provisional Small Cause Courts Act, 1887, has been allowed and the judgement and decree dated 21.10.2011 passed by Judge Small Causes Court in SCC Suit No. 87 of 2007 dismissing the suit has been set aside. The revisional court has decreed the suit for eviction on the ground that the defendant-tenant had made illegal constructions and structural alterations in the building without the written consent of the plaintiff-landlord. The suit in respect of other reliefs has been dismissed.
The suit was instituted on ground of default in payment of rent since 1.5.2006, subletting, and for demolishing the constructions and raising new constructions on the first floor of the demised premises without the consent of the plaintiff.
The specific case of the defendant-tenant was that there was no default in payment of rent nor he had undertaken any structural alteration in the building. The constructions on the first floor were made when his father was tenant and that too in pursuance of a registered agreement between the parties dated 20.9.1984. He also denied having sublet the premises.
The trial court held that there was no default in payment of rent. It held that certain constructions were raised on the first floor of the demised premises, but the same were in pursuance of the registered agreement dated 20.9.1984 between the father of the defendant and the plaintiff. The plaintiff was held entitled to the benefit of Section 29-A of U.P. Act No.13 of 1972 (for short 'the Act'). The contention of the plaintiff that the defendant had demolished the first floor constructions and raised new constructions in its place was repelled. The trial court also held that there was no subletting. Accordingly, the suit was dismissed.
The revisional court has upheld the finding of the trial court that that there was no default in payment of rent and that entire amount had also been deposited under Section 20(4) of the Act. It also agreed with the trial court that there was no subletting. However, the revisional court has held that the defendant-tenant had undertaken certain new constructions on first floor of the building. It also held that the constructions made are without the written permission of the plaintiff. It amounted to violation of Clause 6 of the registered lease-agreement dated 12.9.1998. Accordingly, the suit has been decreed on ground that the defendant had raised illegal constructions resulting in material structural changes in the building in violation of Clause 6 of the registered agreement dated 12.10.1998.
Sri Vishnu Gupta, learned counsel for the defendant-tenant submitted that there was no pleading that structural changes made by defendant-tenant had resulted in diminishment of value of demised premises or utility or its disfigurement. According to him, without there being any pleadings in that regard and also evidence to the said effect, the revisional court erred in decreeing the suit. In other words his submission is that even upon the findings recorded by the revisional court, the suit could not have been decreed. In support of his contention, he placed reliance upon Supreme Court judgement in Pratap Narain and another vs. District Judge Azamgarh and another, AIR 1996 SC 111.
On the other hand, Sri Manish Goyal, learned counsel for the plaintiff-landlord submitted that paragraph 3 of the plaint contains relevant pleadings, which brings the action of defendant-tenant in raising constructions without the consent of the plaintiff within the mischief of Section 20(2) of the Act. He also placed reliance on the registered agreement dated 12.10.1998 and Amin's report in support of the findings recorded by the revisional court.
The facts which are not in dispute at this stage is that initially, father of defendant namely Chandan Lal Sharma was tenant of an open piece of land with tinshed structure and kothari. The parties entered into a registered agreement dated 20.9.1984 whereunder, father of the defendant-tenant agreed to surrender part of the tenanted premises. He was permitted to retain the remaining part with right to raise pucca constructions in place of tin shed structure at his own expense. He was not entitled to claim adjustment of the amount spent by him in raising constructions. It was specifically agreed between the parties that the tenancy would be perpectual. In pursuance thereof, the father of the defendant-tenant handed over possession of part of the demised premises to the plaintiff-landlord. He also made permanent constructions on the ground floor and first floor at his own expense upon the remaining part, which continued under his tenancy, as per the agreement. Chandan Lal Sharma, father of the defendant-tenant died on 22.1.1998. On 12.10.1998, the plaintiff-landlord entered into a fresh registered agreement with the defendant-tenant. According to it, the defendant would be tenant since 1.2.1998 on a monthly rent of Rs.200/-. It was also agreed between the parties that the defendant-tenant, apart from existing constructions, would not make any other structural alteration in the building, without the written consent of the plaintiff. The tenancy of the defendant would be perpectual.
Paragraph 3 of the plaint, upon which much emphasis has been laid by learned counsel for the plaintiff-opposite party, reads thus :-
"That defendant's tenancy consisted of one hall and stairs on the ground floor and one room, one store room, kitchen and open roof on the first floor but in violation of condition no.6 of the lease deed, the defendant demolished the first floor construction on or about 20.7.07 and constructed two rooms, kitchen, latrine and bathroom on the first floor without permission and consent of the plaintiff who had to make complaint to the City Magistrate Agra who was pleased to direct police station Officer M.M. Gate to see that construction work is stopped. Thereafter the defendant also gave in writing to the Station Officer of P.S. M.M. Gate Agra that no further construction will be raised."
Clause 6 of the agreement dated 12.10.1998, on which reliance has been placed, reads thus :-
Þ;g fd f}rh; i{k tk;nkn fdjk;k'kqnk esa crkSj fdjk;snkj ds gh vkokn jgsxsa vkSj mDr tk;nkn lnSo izFkei{k dh feyfd;r gS vkSj jgsxh f}rh; i{k dks mDr ekStwnk rkehjkr esa dksbZ jn~nkscny vkfn fcuk fyf[kr jtkeanh izFke i{k ds djus dk dksbZ vf/kdkj u gksxkAÞ The defendant-tenant took the following pleas in rebuttal in his written statement :-
"13. That as a matter of fact, late Sh. Chandan Lal Sharma son of late Shri Vihari Lal was very old tenant in occupation of more than 200 sq. yds of land wherein temporary wooden shed existed for business purposes of storage fire-wood, lateron converted for storing kuchcha petha with GADDI. There was compromise between the plaintiff and father of the defendant said Sh. Chandan Lat. Smt. Uma Rani devi mother of the plaintiff was owner of the said property and the plaintiff was her power of attorney holder.
14. That fresh tenancy was agreed between said Smt. Uma Rani devi Bhattacharya wife of late Sh. Kali Prasad Bhatacharya through her power of attorney Dr. Ajit Kr. Bhattacharya (SON) who is now the plaintiff and regd. lease deed was executed between the parties on 20-9-84 for un-limited period registered at Vahi No.1, Zild No.3132 pages 134/138 Sl. No.2857, and 2856 on 8-2-1985 before the subregistrar Agra, presented for registration on 20-9-84.
15. That late Shri Chandan Lal was earlier tenant of big AAHTA @ Rs.14/- per month out of which he vacated about half portion. Shri Chandan Lal father of the defendant was permitted to raise all side walls with iron shutter in front portion on road side upto the height of 14', further one 2-1/2' wide stair case leading from ground floor to Ist floor besides constructions on the IInd floor over it at own expenses, costs of the tenant / IInd party Sh. Chandan Lal. Accordingly late Sh. Chandan Lal father of the defendant raised constructions of permanent nature at his own costs with the consent of the landlord. Rent was agreed to Rs.74/- per month w.e.f. 1-9-1984."
The trial court, as noted above, found substance in the case taken by the defendant-tenant in the written statement and returned a finding that whatever constructions exist, they were raised by the father of the defendant in pursuance of agreement dated 20.9.1984 entered into by the plaintiff-landlord with the father of the tenant.
Section 20(2)(b) and (c), which are relevant for the purpose of instant case reads as follows :-
"20. Bar of suit for eviction of tenant except on specified grounds.- .....................
(2) : -
(a) ................
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it ;
The tenant could be evicted under Clause (b) if he has caused substantial damage to the building. Under clause (c) tenant could be evicted if he has made construction or structural alteration in the building as is likely to diminish its value and utility or disfigure it, without permission in writing of the landlord. Although in paragraph 3 it was alleged that defendant-tenant had demolished constructions on the first floor and in its place he constructed two rooms, kitchen, latrine bathroom but the revisional court did record any finding to the said effect. Infact the pleadings in paragraph 3, were made in reference to Clause 6 of the agreement which prohibited the tenant from making structural changes in the building without the written consent of the landlord, as also provided under clause (c) of Section 20(2) of the Act.
According to the findings returned by the revisional court, on comparison of Amin's report with the lease agreement dated 12.10.1998, one staircase for approaching the roof on first floor was found to be in existence, in addition to the constructions mentioned in the lease agreement. This is not even the case set up in the plaint. The revisional court has also observed that at the place where there was kitchen, a room was found to be in existence and kitchen and bath room on the open roof of the first floor. This, according to the revisional court amounted to structural changes being made in the building. Since it was done without the consent of the landlord, in violation of Clause 6 of the registered agreement, therefore, the revisional court has decreed the suit.
The revisional court has not recorded any finding that any existing constructions on the first floor was demolished as alleged by the plaintiff. Even in respect of a room, which was found at the place of kitchen, there is no clear cut finding that the kitchen was demolished to construct the room.
The findings recorded by the revisional court would definitely not attract clause (b) of Section 20(2) of the Act. The other provision, as discussed above is clause (c) of Section 20(2) of the Act. The Supreme Court, while considering clause (c) of sub-section (2) of Section 20 of the Act in Pratap Narain (supra) has held that unless structural change made by the tenant without consent of the landlord is such that it results in diminishment of value of the building, the suit could not be decreed. In that case also the Court had held that various structural changes were made by the tenant without the consent of the landlord but no finding was recorded that such changes had resulted in diminishment of the value of the tenanted premises. The relevant observations are as follows :-
"4. A perusal of Clause (c) of Sub-section (2) of Section 20 of Act 13 of 1972 would indicate that a suit for eviction is maintainable only if the tenant is found to have made any structural changes without the consent of the landlord and that such changes resulted in diminishing the value of the building. Therefore, even if it is held that the structural changes were made by the appellant with out the consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building. The High Court has not adverted to this aspect at all. Since the High Court omitted to record the finding on a vital aspect, the order passed by it cannot be maintained."
The Supreme Court in Om Prakash Vs. Amar Singh and another, 1987 (13) ALR 163 considered a somewhat similar provision under U.P. Cantonment Rent Control Act, 1952, which reads thus:-
"(c) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value".
In the above context, the Supreme Court observed as under:-
"...................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 partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter 'the building as in spite of such 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."
(emphasis supplied) This Court in Raghubir Singh vs. Additional District Judge, Meerut and others 1981 (1) ARC 302, while interpreting clause (c) of Section 20(2) of the Act held as follows :-
"The question whether the changes made by the tenant amount to structural alterations in the buildings under tenancy is not a pure question of fact. The inference whether the alterations made by the tenant amount to structural alterations from the facts established on the record is certainly an inference of law and not of fact. The revisional Court was, therefore, entitled to consider for itself whether the alterations made by the tenant amounted to structural alterations within the meaning of clause (c) of Section 20(2) of the Act. As regards the further question whether the structural alteration was likely to diminish its value, I agree with the learned counsel for the respondent that the trial Court had not considered that question at all and it was only while recording its ultimate conclusion that the trial Court had observed without the discussion of any evidence on the record that the alterations made by the tenant were likely to diminish the value of the building. The trial Court not having considered that question, it was open to the revisional Court to give its own finding."
(emphasis supplied) Having regard to the above settled legal position, in the absence of finding in the impugned judgement that the structural changes allegedly made by the tenant on the first floor, had resulted in diminishment of value or utility or disfigurement of the demised premises, this Court is unable to uphold the impugned judgment.
Accordingly, the judgement of the revisional court dated 19.1.2013 is set aside. The matter is remanded back to the revisional court to decide the revision afresh, expeditiously, preferably within a period of four months from the date of production of a certified copy of this order.
The petition stands allowed to the extent indicated above.
It is clarified that this Court has not expressed any final opinion on merits of the case of respective parties and all pleas and contentions are left open for being decided in accordance with law.
Order Date :- 12.3.2019 skv (Manoj Kumar Gupta, J.)