Punjab-Haryana High Court
Subhash Chander vs Valayati Ram Son Of Mstu Ram on 18 October, 1993
Equivalent citations: (1994)106PLR701
JUDGMENT G.C. Garg, J.
1. The respondent-landlord filed a petition against the petitioner-tenant under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 seeking eviction from a shop situated within the municipal limits of Safidon, inter alia, alleging that the tenant was in arrears of rent and the house tax, the demised premises had become unfit for human habitation and that the tenant had carried out extensive repairs without his permission and consent, inasmuch as he removed a partition wall in the shop, plastered the four walls and relayed the floor and thereby materially impaired the value and utility of the building. The tenant refuted the allegations levelled in the petition and asserted that the tenanted premises are absolutely fit for human habitation and no repair or changes in the structure of the building has been effected by him, therefore, there is no question of impairing the value and utility of the building.
2. The trial, the landlord pressed only two grounds i.e. the building had become unfit for human habitation and the respondent had effected extensive repairs in the demised premises thereby materially impairing the value and utility of the demised premises. Learned Rent Controller dismissed the petition by order dated May 8, 1989, by observing that there was no conclusive evidence on the file to arrive at the conclusion that the building in question had become unfit for human habitation and that the repairs even if carried out by the tenant i.e. relaying of floor and plastering the walls did not amount to materially impairing the value and utility of the building in question. Appeal preferred by the landlord was, however, accepted by the appellate authority by order dated July 22, 1990. This is how, the tenant has filed the present revision against the order of the appellate authority.
3. At the very outset, it may be noticed that while accepting the appeal, the appellate authority on the basis of the statements of the witnesses examined by the petitioner and the report of the local commissioner concluded that the tenant had made extensive repairs and even replaced the floor of the front portion. Thereafter, a reference was made to the report of the local commissioner wherein it was stated that the front portion of the shop had been white washed 5/7 days before the visit of the Local Commissioner and the scratching of the cement on the walls of the front portion showed that the same had been plastered only 10/15 days back. The appellate authority in para 11 of the judgment under revision, while affirming the finding of the Rent Controller on issue No. 3 reversed the finding on issue No. 1, by observing as under:-
" I, on the basis of statements of witnesses examined by the respondent and the report of the local commissioner conclude that the tenant has made material alteration in the front portion of the shop by replacing its floor, by plastering the walls and doing such like other things. Even the roof of front portion appeared to be quite different from the roof of the hind portion. It at all the shop had not become unfit and unsafe, for human habitation, why the tenant took the law in his own hands and he got the front portion repaired and materially altered. If it needed some minor repair, he could request the landlord to do so and in case landlord refused to do so he could apply to the Rent Controller under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 for such repair. There is no justification for the tenant doing material repairs or alterations himself without knowledge of the landlord or without his consent or even without seeking permission of the Rent Controller. The only inference that can be drawn is against the tenant that the shop had become unsafe and unfit for human habitation and in order to avoid his eviction on this ground, the tenant made not only extensive repairs but also material alteration."
4. In the above backdrop, the appellate authority accepted the appeal and ordered ejectment of the tenant on the ground of material alteration made by him. The exact words used by the appellate authority may be noticed as under:-
" For the aforesaid reasons the appeal succeeds and it is accepted to the extent that the landlord is entitled to eviction of the tenant from the shop in dispute on the grounds of material alteration made by the tenant."
5. It deserves to be clarified at this stage that the ejectment had not been ordered on the ground that the building had become unfit and unsafe for human habitation. Neither any finding in that behalf had been recorded nor it is the case of the landlord in this revision petition.
6. Learned counsel for the petitioner contended that in order to seek eviction from the demised premises, the landlord is required to establish on record that the tenant has in fact carried out repairs and the repairs so carried out are such as have materially impaired the value and utility of the demised premises which he had miserably failed to prove. He further contended that the premises in question were quite fit and safe for human habitation. On the other hand, Mr. C.B. Goel, learned counsel appearing on behalf of the landlord submitted that the learned appellate authority has recorded a finding of fact after appraisal of evidence and relying upon the report of the local commissioner that the tenant has materially impaired the value and utility of the shop by carrying out extensive repairs/alterations. He thus, submitted that the ejectment of the tenant from the demised premises should be upheld.
7. After hearing learned counsel for the parties and going through the record, I am of the view that this petition must succeed. After appreciating the entire evidence led by the parties, learned Rent Controller has found as a fact that the repairs carried out by the tenant do not amount to materially impairing the value and utility of the building in question. The ejectment petition was filed on November 11, 1986 and on the next day local commissioner was got appointed by the landlord for inspection of the spot on the ground that repair work was going on and the building material was lying on the spot. The local commissioner reported that no building material was lying on the spot, the walls were cemented only 10/15 days back, the front portion of the shop was white washed about 5/7 days earlier and the floor of the front portion of the shop was also newly constructed. Learned Rent Controller after considering the entire evidence including the report of the local commissioner, observed that even if the report of the local commissioner is accepted in toto, mere cementing of the walls and relaying the floor, as reported by him did not amount to materially impairing the value and utility of the building in question. Learned appellate authority in coming to the conclusion that the tenant made extensive repairs and material alteration in the front portion of the shop by replacing the floor, by plastering the walls and doing such like other things, relied upon the report of the local commissioner and the statements of the witnesses examined by the tenant. Be that as it may, even if the report of the local commissioner is taken to be correct that the tenant carried out some repairs and made alterations in the shop in question, it has still to be seen, whether such repairs and alterations did materially impair the value and utility of the building.
8. While dealing with the above question, a Division Bench of this Court in Bhupinder Singh v. J.L. Kapoor and Anr., (1992-2) 102 P.L.R. 218 observed that no parameter can be culled out under which it can be assumed that the material alterations made would be taken to be impairing the value and utility of the building. In the above noticed case the question before the Division Bench was, as to which of the two views was correct, viz. the one taken in Shri Ram v. Smt. Sheila Rani, (1982) 84 P.L.R. 591 that unauthorised construction by a tenant would itself amount to material impairment of the value and utility of the demised premises, and the other view taken in Sadhu Ram v. Niranjan Dass and Anr., (1983) 85 P.L.R. 673 that any construction raised by the tenant by itself would not entitle the landlord to claim his ejectment unless it is further proved that such a construction has materially impaired the value and utility of the demised premises. The Division Bench of this Court approved the view taken in the latter case by observing that after repairs or construction raised or material alteration effected or the acts of commission or omission committed by the tenant it has to be further proved or it has to be inferred from the facts proved on record that the material alteration has materially impaired the value or utility of the demised premises. The Division Bench further observed that it cannot be laid down as a principle of law that whenever there is a material alteration or new construction by the tenant, it would itself amount to material impairment of the value and/or utility of the demised premises and such material impairment has to be understood as a man of ordinary prudence would understand, not a sensitive landlord. Applying the ratio of the observations of the Division Bench noticed above to the present case the only question to be considered is whether the repairs/alterations made by the tenant amounted to material impairment.
9. 'Material impairment' strictly stands for substantial change in character i.e. diminishing of quality, value, strength and becoming worse or reduction in quality etc. The landlord seeking ejectment of on the aforesaid ground is bound to prove as a fact that the alterations made by the tenant materially impaired the value and utility of the building by leading cogent evidence. In the present case, all that has been pleaded by the landlord is that the tenant has plastered the four walls and relayed the floor of the front portion. It has also been pleaded that the tenant had in addition removed the partition wall in the ground floor of the shop. As regards the removal of the intervening wall, it cannot be termed as material alteration as the landlord has nowhere pleaded as to in what manner the said alteration has impaired the value and utility of the building. It is not the case of the landlord that with the removal of the wall any damage has been caused to the floor, roof or the walls and therefore, the value of the shop in question has diminished. Learned Rent Controller has even observed that in the instant case it was also doubtful whether there was any wall in existence or not. No finding much less a firm finding has been recorded by the appellate authority that the tenant did remove the intervening wall and/or also replaced the roof. There is absolutely no finding about the effect thereof.
10. Adverting to the other allegations attributed to the tenant, learned appellate authority has, virtually relying upon the report of the local commissioner, concluded that the tenant had made material alteration in the front portion of the shop by replacing its floor, by plastering the walls etc. These acts of commission and omission again cannot be taken to be of such a nature as to term them as material impairment especially in the absence of there being a specific stand on behalf of the landlord in the ejectment petition as to how such alterations materially diminished the value and/or utility of the demised premises. The learned appellate authority has taken a very narrow view of the matter and thus, acted illegally and with material irregularity. Therefore, in the facts and circumstances of the present case the only conclusion that can be drawn is that the landlord failed to plead and prove on record as to how the alleged repairs / alterations attributed to the tenant impaired the value and utility of the demised premises, what to talk of materially impairing the value and utility.
11. Consequently, the order of the appellate authority is set aside and that of the Rent Controller is restored. The revision stands allowed accordingly. No costs.