Praveen Rastogi And Others vs Smt Laxmi Arora And Others on 14 November, 2017

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Uttarakhand High Court

Praveen Rastogi And Others vs Smt Laxmi Arora And Others on 14 November, 2017

It is an inevitable preposition of law that the scope of interference by the superior Courts, irrespective of the jurisdiction it exercises, over subordinate Court does not as of a right could be declined to be invoked to interfere in those circumstances where the judgment impugned reflects an absolute perversity and non-consideration of the evidence, which has been brought on record by the rival parties. In this case, too, there happens to be one of the example in which there has been rather wrongful appreciation of evidence on record or non appreciation of evidence at all.

Hence, while considering the extent and the ambit of powers vested with the Revisional Court under Section 25 of the Provincial Small Cause Courts Act, which cannot be treated as to be para materia power of revision as contemplated under Section 115 of the CPC, which limits the jurisdiction of the Revisional Court and being conscious of the revisional powers under Section 25, which has been 2 interpreted by the various courts of law that since the provisions of Section 25 of the Act entails in it, an appreciation of evidence and pleadings of the parties as rendered before the Trial Court by a superior Court, for the first time, it imbibes in it the ambit and an element and a blend of being the first superior Court where the scrutiny of evidence would be permissible and, that too, in the light of the fact when there happens to be an absolute perversity, and non consideration of evidence.

In the case, at hand, it is not in controversy inter se between the parties that the tenement is an old structure on which provisions of Act No. 13 of 1972 are applicable. It is further not in dispute that the tenement carries the rent @ Rs.45/- p.m., which was let out by the revisionists to the respondents, for the occupancy of tenement as a tenant.

There are various contentions pertaining to the initiation of the proceedings which were conceived by virtue of a notice issued under Section 106 of Transfer of Property Act on 19th March, 1999, which is the genesis of the proceedings of the SCC suit, which on the notice being served upon the present revisionists on 22nd March, 1999, resulted into the institution of the suit, alleging that the conditions of notice were not ocomplied with within the time intended thereto in the notice.

The basic ground which the revisionists have agitated in his suit though they are multi fold but on account of the fact that the learned counsel for the revisionists has confined his argument with regard to the effect of Section 20 (2) (c) pertaining to the import of material alteration, this Court with the consent of the learned counsel parties, 3 would be confining its finding limited to Section 20 (2) (c) only. The plaintiff revisionists in its para 3 of the plaint has pleaded as under :-

"3. ;g fd izfroknhx.k us oknik= dh lwph esa of.kZr lEifRr dks lkjoku :i ls {kfrxzLr fd;k gSA mUgksus oknhx.k dh vuqefr] lgefr ;k fyf[kr vuqKk ds fcuk lEifRr esa fuekZ.k o ljpukRed ifjorZu fd;s gSa fd ftlls mlds ewY; es deh vk x;h gS] mldh mi;ksfxrk ?kV x;h gS rFkk mldk fo:i.k gks x;k gSA izfroknhx.k us okni= dh lwph esa of.kZr lEifRr ds fiNys Hkkx esa cus LVksj] "kkSpky; o cjkens dh nhokjksa dk IykLVj rksM+ fn;k gS rFkk nhokjksa esa VwV QwV dj nh gS] pkS[kV fudky nh gSA izfroknhx.k us lEifRr ds vxys Hkkx vFkkZr jktiqj jksM dh rjQ okys Hkkx ds dejksa esa iqjkus IykLVj dks rksM+ fn;k gS o u;k IykLVj dj fy;k gS rFkk bl Hkkx esa LVksj dks "kkSpky; esa cny fn;k gS rFkk blds fy, mUgksus lkjokuifjorZu fd;k gS rFkk vaxzsth Qy"k~ lhV yxk nh gS rFkk nhokj rksM+dj ih0oh0lh0 dk lhoj ikbZi fudkyk gS fd ftls fiNys Hkkx dh lhf<+;ksa ls mrkjdj] fiNyh nhokj dks rksM+dj ckgj fudkyk gS rFkk iqjkus lhoj ikbZi ds lkFk tksM+k gSA bl lhoj ikbZi dks ys tkus esa izfroknhx.k us nhokjksa esa cM+s cM+s Nsn dj fn;s gSa fd ftlls nhokjs detksj gks x;h gS] mlesa njkjsa vk x;h gSA ;g lhoj ikbZi izfroknhx.k us lhf<+;ksa ls mrkj fn;k gS fd ftlls lhf<+;ksa dh mi;ksfxrk de gks x;h gSA u;s cus "kkSpky; esa izfroknhx.k us rksM+QksM+ djds nhokjksa ij o Nr ij u;k fuekZ.k djk fn;k gS] VkbZYl yxk nh gS] xhtj yxk fn;k gS] okW"kcsflu yxk fn;k gSA pwafd izfroknhx.k LVksj dks lekIr dj fn;k gS] bl dkj.k igys ls miyC/k LVksj dh mi;ksfxrk lekIr gks x;h gSA ;s lHkh fuekZ.k dk;Z izfroknhx.k us /khjs /khjs ekpZ 1997 ls lwpuk i= fn;s tkus dh frfFk dh le;kof/k esa fd;s gSA"

What he contended in the plaint was that the tenant respondents without their being a written consent, has undertaken material alteration resulting into change in the structure as well as reduction into the valuation of the property. The nature of the construction which was described in para 3 of the suit was that the store, toilet and varanda which were existing in the rear part of the building, its plasters have been taken away, its 'chokhat' has been 4 removed and new plaster have been placed in part of the construction and the store room has been converted into a toilet.

His contention was further that the nature of the construction which has been pleaded by the revisionist would amount to be material alteration, as it changes basic structure, for the reason, he has placed a flush sheet, has put on PVC pipe line and sewer pipe lines which has been taken down from the staircases itself which has reduced its width. It was specifically pleaded that the sewer line which has thus been drawn by the respondent has been attached to the previous existing main sewer line without a prior consent. He submitted that on account of aforesaid constructions, the walls of the structure which are old in age had given away and big holes have been made to take down the pipe, thus weakening the wall.

In response to the plaint, a written statement was filed by the respondents and, while giving reply to the pleadings raised in para 3, respondents, herein, had endeavored to reply the pleadings by extending the reply to the following effects :

"3) That para 3 of the Plaint, as stated, is not admitted and is denied. No such things were carried on or done by the defendant, as alleged by the Plaintiff. Said para is totally vague. Defendant has already moved an application for better particulars before this Court, but till date, no reply has been given by the plaintiff. Now, the defendant is filing written statement before this Court and in case, the plaintiff shall lead any evidence in support of the contentions 5 made by him in para no.3 of the plaint, then the defendants have a right to rebut it later on. The contention, which is alleged by the plaintiff in para 3 is totally wrong, false and denied. Plaintiff failed to give the date, time, month and the year of such alleged allegations before this Court. Para 3 of the Plaint is totally vague and the same is false and concocted story. Only just to learn the defendants and only just to file the suit, said ground was taken by the Plaintiff and the ground, which is taken in para 3 of the Plaint, is false."

In the reply, thus, submitted by him, he submitted that the reply extended is absolutely vague. He further submitted that for extending an appropriate answer, he has already filed the application for better particulars, but, the same has not yet been given. While extending the reply, he has reserved his rights to submit in his pleading in response to para 3 of the plaint at later stage. In a nutshell, it could be said that the reply as given in para 3 will not be treated as to be a reply in its strict sense as contemplated under Order 8 Rule 4 and 5 of the CPC, as there was no specific denial of the pleadings with regard to the extent of alteration as pleaded in the plaint, rather alterations made were admitted with a rider that it does not materially alter or diminish value of the property.

The learned Trial Court on the exchange of the pleadings, proceeded to formulate the following issues :-

1- "D;k izfroknhx.k us fdjk;k] VSDl vkfn vnk djus esa dksbZ Hkwy dh gS] ;fn gka rks izHkko \ 6 2- D;k izfroknhx.k us oknxzLr lEifRr esa dksbZ ifjorZu] ifjo/kZu fd;k gS ftlls fd mDr lEifRr dh mi;ksfxrk de gks xbZ\ tSlk fd okn i= ds iSjk 3 esa dgk x;k gS\ 3- D;k izfroknhx.k /kkjk 20 4 m0 iz0 vf/kfu;e la0 13@72 dk ykHk izkIr djus ds vf/kdkjh gS\ ;fn gka rks izHkkoA 4- D;k oknh dk okn /kkjk 106 Vh0ih0 ,DV ds uksfVl ds vHkko esa [kafMr gksus ;ksX; gS\ 5- D;k oknh dk okn] okn dkj.k ds vHkko esa [kafMr gksus ;ksX; gS\ 6- D;k fookfnr lEifRr dk fooj.k vLi'V gS\ 7- Okknh fdl vuqrks'k dks izkIr djus dk vf/kdkjh gSA vkns"k fnukad 27&1&2014 }kjk fuEu okn fcUnq fojfpr fd;s x;sA 8- D;k oknhx.k dk okn vkns"k 2 fu;e 2 lh0ih0lh0 ls ckf/kr gS] tSlk fd izfrokn i= dh pj.k la0 12, esa dFku fd;k x;k gS\ 9- D;k okn foca/ku ,oa ekSu Lohd`fr ds fl}kUr ls ckf/kr gS\ 10- D;k oknhx.k dk okn dkyckf/kr gS\"

Yet again, it would be appropriate to mention at this juncture that the issue with which we would be confining to with the consent of parties is issue No. 2, which was to the effect "whether in the light of the pleadings raised in para 3 of the plaint, the defendants had made material alteration without the consent of the landlord resulting into diminishing the utility of the property, in question.

The learned Revisional Court had decided the issue in a negative against the landlord. While rendering a judgment, which is always expected from the Court of law, is a pattern to be adopted while deciding a controversy and that there would be a consideration of facts first before applying the law under the facts available in a given case. The manner, in which, the decision on issue No. 2 has been rendered by the Judge Small Cause Courts was as if he has tried to load the issue No. 2 with number of judgments as rendered by the various courts of law even before he could 7 consider the rival case of the parties and before he could consider as to whether they will apply in the given case or not. It seems that he was preoccupied with the judgments and ratio laid down therein so as to fit in the instant case with the facts of the cases referred as the reasoning, while deciding issue No. 2.

The learned counsel for the respondent tenants submitted that for the purposes of invoking Section 20 (2)

(c), there are various factors which are required to be considered. He stressed upon the fact that there has to be a dimunite in value or utility and a disfigurement of the property.

All these ingredients contemplated under Section 20 (2) (c) are independent to one another. Existence of any one of the factors, i.e. either diminishing the value is independent to diminuting of the utility and is independent to disfigurement of the property would be sufficient to draw the proceedings for eviction of a tenant. He further tried to qualify the pleading that the nature of construction which has been done, does not materially alter the construction or make the structural changes and, as such, merely because of the removal of the plaster or placement of flush in the store or taking out sewer pipes from the staircase will not fall to be within the purview of structural alteration.

This Court disagrees with the argument extended by the learned counsel for the respondents. The parameter for determining or structural alteration cannot be placed in straight jacket formula. It always depends upon the magnitude of alteration and on individuals way of looking 8 to the nature of construction, which is always variable with perception. But, according to the evidence, which has been placed on record and which has either been not been considered and if considered it has not been construed in its true sprit, particularly, the reports of Amin which show that there have been constructions carried by the tenant (the fact which is not being denied) infers that respondent did not deny of not having made construction, but, only controversy now which is confined is as to what is the magnitude and what is its effect on the valuation of the property and its utility.

The learned counsel for the respondents submits that admittedly, since the construction was being carried out in the rear part of the building, it should not be taken as to have any bearing on eviction by invoking Sub-clause (c) of sub-section (2) of Section 20 of the Act. What he tries to convey is that such type of construction, there always has to be a possibility of diminishing its value and since it is being carried in the rear part of the structure, it does not diminish the value and, as such, Sub-clause (c) of sub-Section (2) of Section 20, would not be attracted.

On perusal of the record, it shows that the landlord had to institute a suit for permanent injunction against the tenant before 2nd Additional Civil Judge (Junior Division), Dehradun, which was registered as Suit No. 44 of 1997, wherein, he has prayed for a decree of permanent injunction as against the defendant respondents, herein, to restrain them raising any construction or changing the nature of the property as same was being carried out landlord's consent over the tenanted property belonging to the revisionists.

The suit of the plaintiff revisionists for injunction was decreed by the judgment dated 14th September, 1998, against which, an Execution Case No. 10 of 1998 was filed by the revisionists. Though, ultimately, the Execution Case was rejected on the objection filed by the respondents tenants on the ground that the decree of injunction as granted on 14th September, 1998, is not executable, but, non- executability of the decree due to some legal restrictions or compications does not nullify the impact of the decree itself, whereby, the respondent was injuncted from making any alteration or raising construction over the property, in question. Because the execution would have only an impact of making the decree effective on spot, but, its binding effect on the judgment debtor cannot be taken away merely because of the fact that the decree is not executable. More particularly, when validity of the injunction decree was not challenged by tenant respondent in the appeal.

There is another aspect of the matter. At last, after rendering the judgment and decree of injunction suit on 14th September, 1998, even hypothetically, if the argument is accepted, then too, the respondents tenants cannot take the liberty to continue to raise constructions or alterations on the property under his tenancy despite the survival of the decree till the execution was turned down on 20th July, 2014.

During the course of proceedings of the SCC suit, the defendant to the suit to show nature of construction and its extent, had placed voluminous documents on record which included certain photographs which they have filed on 16 th August, 2013, as submitted by list, Paper 167-C. On perusal of the photographs, which were placed on record by the 10 respondents tenant himself on which he relied, leads to an inevitable inference that the extent of alteration which has been brought about and, in the manner in which the structure exists, due to placement of the pipes, would definitely amount to be a material alteration changing the nature of the property, consequently, resulting into diminishing its value which could be inferred by any prudent man on perusal of the record. As by placement of sewerage pipe line on the staircase, it has apparently reduced its width consequently its utility also. Further, it will also have an effect on diminishing its value as no probable tenant or purchaser would ever be interested in the property due to the said alteration and probable future complications.

During the course of proceedings of the SCC suit, in compliance of the order passed by the Court, and after giving prior notice to the respondents tenants, the Court Amin had conducted inspection on the spot on 16th July, 2011, wherein, he has reported in the following manner :-

"mijksDr Lukukxkj @ "kkSpky; ds drainage outlet gsrq] Lukukxkj @ "kkSpky; dh nhokj rksMdj @ Nsndj ,d 4 bap dk PVC ikbZi ckgj fudkyk feyk tks oknxzLr lEifRr dh fiNyh lhf<;ksa ds lgkjs] lhf<;kssa ds lkbZM ls] uhps dh vksj tkrk gS"

On scrutiny of Amin report, he has categorically mentioned that :

1. The tenant had broken the wall of bathroom and toilet.

2. He has made a hole of 4 inches wide for laying out of the PVC pipe.

3. He has put the pipe on the staircases which are existing in the rear part of the building.

4. The staircases, on which the pipes have been laid, are the staircases which connect two rooms existing on the first floor.

5. The plasters of the two rooms existing in the first floor have been completely removed.

6. The chukhat has been removed.

Reverting back to the findings recorded by the learned Provincial Small Cause Courts, while dealing with issue No. 2, with which, we are concerned. A specific plea was taken by the plaintiffs pertaining to the import of Order 8 Rules 3 and 5 of C.P.C. as to what would be effect of there not being a specific denial pertaining to the pleadings raised by the plaintiff for substantiating his case in defence.

In response to it, the inference which has been drawn by the Court has held that though the pleadings were vague that if the written statement is read with precision, it could be said that the pleading pertaining to the magnitude of construction undertaken by the tenants was denied by him. The finding recorded by the Trial Court was even by venturing into the case which was otherwise not pleaded by the tenant in the written statement. Court could not have inferred from its interpretation of pleadings, a thing which was not there on record or pleadings.

The learned Trial Court, while considering Section 20 (2) (c), in para 27 of the judgment, has confined its consideration and finding recorded are only to the effect as 12 to whether removal of plaster from the wall would amount to material alteration or not. The other alterations admittedly which were made by the respondent and its impact in light of restrictions imposed by Section 20 was not considered.

At this juncture, this Court finds that there is a perversity in the reasoning given by the learned Trial Court, for the reason, he cannot segregate the extent of alteration which has been made by the tenant by only considering a part of it. Once, he applies his mind to consider the alteration, he could not have excluded the effect of changing the store room into a toilet and he could not have escaped the consideration of effect of placement of sewage pipes on the stair cases. Non consideration or recording finding these two constructions made by tenant, renders the judgment to be perverse and contrary to records and existing evidence.

The learned S.C.C. Courts, in its para 36, if read in correlation to the application of the Courts mind as referred in 27 of the findings of the judgment has concluded that the nature of uncontroverted construction, do not amount to be a material alteration and he has drawn his own inference in the following manners :

1. The constructions should have made the building look ugly.

2. He concluded that the nature of construction though contrary to the pleading is temporary in nature. Thus, concluded that the alteration made by the tenant would amount to be a repair, and that is 13 why, he has inferred that such a construction would rather enhance the age of the property rather than diminishing its value. Hence, he has drawn a conclusion that it would increase the utility of the property.

The grounds derived by the SCC Court for dismissing the suit was not the case of tenant in his pleading, and court could not have ventured into the shoes of tenant to carve out case for him, which is not pleaded. The landlord, while recording his statement as PW1, in its para 6, has submitted that on account of the construction which has been carried by the tenants, cracks have developed in the wall, and the store has been altered as a toilet, thereby, it has reduced the value. He further made a statement that on account of placement of the sewerage pipes on the part of stair cased, which has narrowed its width, resultantly, has reduced its utility.

The conclusion, which has been drawn by the Court was on its own analogy, as if he was acting as an expert while considering the old material utilized in the construction of the building by holding thereof that the plaster which are made of "chuna and gara" have a definite life and they give away with the passage of time, whereas architectural experience goes otherwise, that such old building material have more life and durability. It is no one's case that such an old plaster was giving away, due to which, it necessitated for the tenant to remove the plaster and to replace the plaster himself without consent of the landlord. Yet again, based on the said analogy, he come to 14 the conclusion that there is no material alteration, not considering the extent of construction in its entirety.

However, a categorical finding has come with regard to the alterations made in the store room and the toilet and laying down of the pipe lines. Another reason which has been assigned by the learned SCC Court for holding that the Section 20 (2) (c) would not be attracted, is that from the view point that the stair case on which sewage pipe lines has been placed is a staircases which are jointly used by the plaintiffs as well as tenant respondents. In that eventuality, it was all the more reason that its width as it existed earlier should have been retained, any change thereof, would be amount to material alteration and diminishing of value.

A very peculiar analogy which has been drawn by the Judge Small Cause Courts is that since the construction has been raised on the staircase which exists on the rear part of the building, it will not reduce its utility as it opens on the road existing at the back of the building. Law under Section 20 (2) (c) does not provide for its applicability based upon the alteration being made in the front or rear elevation of the building. This classification is contrary to the law.

This Court disagrees with the findings recorded by the Judge Small Cause Courts, as being contrary to the pleadings and evidence on record, and thereby, I hold that the judgment rendered by the Judge Small Cause Courts is absolutely perverse and by a non-consideration or partial consideration or a wrongful consideration of the evidence on record.

Thus, looking to the magnitude of the construction and alteration which has been brought about by the tenant, it has resulted into diminishing the value of the property and its utility, thus it violates Section 20 (2) (c) of the Act, as such, the revision is allowed. The impugned order dated 16.09.2015, passed by learned 1st Additional District Judge, Dehradun in SCC Suit No. 15 of 1999, Praveen Rastogi and others Vs. Smt. Laxmi Arora and others, is quashed. The tenants are directed to vacate the premises within a period of six months from today.

No order as to costs.

(Sharad Kumar Sharma, J.) 14.11.2017 Shiv

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Uttarakhand High Court