Ajaib Singh & Ors vs Delhi Cloth & General Mills Company Ltd on 26 July, 2012

[Cites 4, Cited by 8]

Rajasthan High Court - Jodhpur

Ajaib Singh & Ors vs Delhi Cloth & General Mills Company Ltd on 26 July, 2012

Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi S.B. Civil Second Appeal No.21/1991 Date of Judgment : 26th July, 2012 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. V.K. Aggarwal, for the appellants-plaintiffs-landlord. Mr. O.P. Mehta, for the respondent-defendant-tenant.

1. The plaintiffs-appellants, landlord have filed the present second appeal against the respondent-defendant- tenant, Delhi Cloth & General Mills Co. Ltd. being aggrieved by the judgment and decree dated 14.11.1990 passed by learned Additional District Judge, Raisinghnagar in Civil Appeal No.11/1987-Delhi Cloth & General Mills Co. Ltd. Vs. Ajaib Singh & Ors., by which the defendant-tenant's appeal was accepted and the suit filed by the plaintiffs for eviction was dismissed. The learned trial court of Munsif Magistrate, S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 2/16 Raisinghnagar vide its judgment and decree dated 20.08.1987 decreed the suit filed by the plaintiffs being Eviction Suit No.13/1982- Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd.; and after a remand upon the issue of partial eviction, again the trial court held vide judgment dated 09.09.1988 that partial eviction could not be made of the shop in question, situated at Bhilwara.

2. During the course of present second appeal filed by the plaintiffs-landlord, vide order dated 24.09.2007 passed by a coordinate bench of this Court since appellants No.1 to 3, namely, Ajaib Singh, Hari Singh and Gurdev Singh had died, however, their legal representatives were not brought on record, therefore, the appeal qua these three appellants was abated. However, the appeal for appellant No.4, namely, Kripal Singh survived and the same was accordingly heard and is being disposed of.

3. Mr. V.K. Aggarwal, learned counsel for the plaintiffs submitted that the shop in question measuring 40' x 20' was sold on 29.03.1968 by one Rameshwar Dass to the present appellants and, thereafter on 29.09.1982, the suit for eviction was filed by the plaintiffs, inter-alia, on the ground of bonafide necessity and material alterations effected by the defendant- tenant, Delhi Cloth & General Mills Co. Ltd., who were selling S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 3/16 clothes in the said shop/showroom in the rented premises and the said suit was decreed on both these grounds of eviction by the learned trial court of Munsif Magistrate, Raisinghnagar on 20.09.1987. However, upon remand by learned lower appellate court of Additional District Judge, Raisinghnagar on the issue of partial eviction also, the learned trial court vide its order dated 09.08.1988 decided the said issue in favour of plaintiffs- landlord. However, the first appeal filed by the tenant-appellant, Delhi Cloth & General Mills Co. Ltd. came to be allowed by the learned lower appellate court of Additional District Judge, Raisinghnagar reversing the findings of learned trial court on both these issues and the said court dismissed the suit vide its impugned judgment and decree dated 14.11.1990; and hence, the present second appeal has been preferred by the defendant-appellant before this Court under Section 100 of CPC.

4. On 12.08.1991, a coordinate bench of this Court while admitting the present second appeal, framed substantial question of law on the issue of material alteration, however, no substantial question of law was framed regarding bonafide necessity of the landlord and, therefore, vide order dated 24.07.2012 another substantial question of law was framed regarding bonafide and reasonable necessity of the landlord.

S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 4/16 Both the substantial questions of law are reproduced herein below: -

1. Whether the addition and alteration made by the tenant appellant are material one so as to fall within the definition of material alteration and whether this material alteration resulted in the substantial damages to the premises?

2. Whether the first lower appellate court was justified in reversing the finding of learned trial court regarding bonafide and reasonable reasonable necessity of the landlord for eviction of the suit premises shop, measuring 20' x 40', given in tenancy to the defendant-tenant (Delhi Cloth & General Mills Co. Ltd.)?

5. Learned counsel for the appellants, Mr. V.K. Aggarwal urged that on the Issue No.2, regarding personal and bonafide necessity of the landlord's son, namely, Harvinder Singh and Jagtar Singh for opening a insecticides and pesticides equipment shop, the landlord needed the said shop in question, which was situated on the main road of the town and in the neighbourhood also, the shops of similar business were already operating. While the learned trial court discussing S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 5/16 the entire relevant evidence deciding the issue No.2 vide para 39 of the judgment and decree dated 20.08.1987 had decided the said issue in favour of plaintiff, the learned lower appellate court, however, reversed the said findings vide para 67, at page 30, of its judgment and decree dated 14.11.1990 cursorily observing that by plaintiffs' own evidence, it was clear that the plaintiffs had no bonafide need of the suit shop in question since the landlord also had agricultural land and one alternative shop, which was in the tenancy of one Gajanand had become available to them but instead of using for their own purposes, they let-out it to other tenant. He further submitted that the findings on Issues No.5 and 6 regarding material alterations were reversed by the learned lower appellate court on the pretext that such alteration was necessary for security purposes of the showroom, set up by the defendant-tenant even though such alterations were carried out admittedly without consent and permission of the landlord. He, therefore, submitted that the findings of the learned lower appellate court on both these issues while reversing the cogent and relevant findings of the trial court are absolutely perverse and the same deserve to be set aside.

6. He further submitted that material alterations were in the form of removal of two doors of the suit premises and a S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 6/16 wall in between as the original suit premises was in three parts earlier. The tenant, thus, converted the premises into a bigger showroom with the removal of doors and one wall and also putting up a false ceiling and by doing civil work of bricks, the tenant closed the two windows and ventilators. This definitely amounted to material alternation of the suit premises and since the nature of the alteration was not disputed by the defendant-

tenant and they only took the pretext of security reasons while admitting that such alterations were made without consent of the landlord, it could not be held that grounds under Section 13 (1) (c) of the Act for seeking eviction on the ground of material alterations were not made out. He further submitted that there were structural changes and they amounted to material alterations indisputably. He relied upon following four judgments in support of his above contentions: -

1. AIR 1967 SC 643

2. 1998 (1) RCJ 467

3. AIR 1987 SC 617

4. 2004 AIR SCW 184

7. While relying upon a decision rendered in the case of Sampat Raj Vs. Bhagwatilal & Anr. reported in ILR 1976 (26) (Raj.) 165 : 1975 RLW 496, learned counsel for the plainiff-appellants, Mr. V.K. Aggarwal, submitted that closing of S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 7/16 western side windows with the bricks permanently without permission of the landlord amounted to material alteration.

Further relying upon a decision in the case of Badri Narain Tak Vs. M/s Shyam Naraian reported in 1982 Raj LR 256 :

1982 RLW 526, he urged that in three different portions of the suit premises with arches and gallery were converted into one hall by chopping of the pillars and arches, on which iron girders were also placed, which resulted into cracks in the wall, depriving the landlord to raise any further construction on the first and second floor of the said premises and such structural changes also have been brushed aside by the learned lower appellate court as justified for the alleged security reasons.

8. He relied upon a decision delivered in the case of Gurbachan Singh & Anr. Vs. Shivalak Rubber Industries & Ors. reported in AIR 1996 SC 3057, the relevant para of the aforesaid judgment is quoted herein below:

"Section 13 (2) (iii) contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 8/16 meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13 (2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purposes.

In the instant case even if it is assumed that the tenant had raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 9/16 building or the demised premises. The removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new does and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the landlords within the meaning of Section 13 (2) (iii). Thus in the facts and circumstances of the case squarely falls within the mischief of the provisions contained in Section 13 (2) (iii) of the Act which make the tenant liable for eviction from the demised premises."

9. On the other hand, Mr. O.P. Mehta, learned counsel for the respondent-defendant-tenants, vehemently supported the appellate court's judgment and by filing an application during the course of arguments, namely, IA No.11336/2012 dated 26.07.2012, he also tried to bring on record that alternative accommodation was also available to the plaintiffs for satisfying their bonafide needs and, therefore, the present second appeal deserves to be dismissed. He also urged that even if the material alterations of the nature of suit premises as specified above and as given in the plaint, was accepted, the same did not amount to any material alteration and, therefore, S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 10/16 the decree of eviction on both the grounds was unjustified by the learned trial court and, therefore, the appellate court was justified in reversing that judgment. In support of his contentions, learned counsel for the respondent-tenant, Mr. Mehta, relied upon a decision rendered in the case of Smt. Supyar Bai Vs. Smt. Gordharn Bai through her Legal Representatives, reported in 1992 (1) WLC 590 and in the case of Om Prakash Vs. Amar Singh & Anr., reported in AIR 1987 SC 617.

10. Having heard learned counsels for the parties at length and upon perusal of the record of the case, this Court is of the opinion that the present second appeal filed by the appellants-plaintiffs deserves to be allowed and the substantial questions of law, framed above, deserve to be answered in favour of appellants-plaintiffs and against the defendant-tenant.

11. As far as the issue of material alteration is concerned, the nature of the alterations carried out by the tenant were admittedly done without prior permission and consent of the landlord. Some of the structural changes were also made like removal of two doors, one wall in between and in place of that iron girders were put to make it bigger hall (showroom). These alterations indisputably were material alterations. Closing of ventilators, two windows by the tenant S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 11/16 was a civil work, of permanent nature and, so also, the designs of arches and pillars were also modified by the tenant. By no stretch of imagination, this could be said to be not a material alteration. If such work was to be done, which could be done only with the consent of the landlord, however, in the absence of the same, once the fact of such material alteration has been proved by the plaintiff, the same could not be defended on the ground of alleged security reasons. There was no security reason at all and at best it could be said to be to bring construction in confirmity with the requirement of a showroom for selling clothes. With the removal of doors, glass panels were put up with removal of wall and putting up iron girders, the size of the showroom was increased by removal of central wall. All these alterations having been done without express or implied consent of the landlord definitely resulted in material alterations of the suit premises without their consent and consequently the ground of eviction was made out.

12. Similarly, the learned lower appellate court has perversely found that since the landlord had alternative agricultural land, where the two sons, namely, Harvinder Singh and Jagtar Singh could be gainfully employed, is a totally wrong notion. Even availability of the alternative accommodation is no ground to deny eviction of the suit premises. It is well settled S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 12/16 that the tenant cannot dictate the terms to the landlord in this regard as to how he/they should adjust his business needs. This Court in the case of Denzil Najrath Vs. LR's of Balwant Singh & Ors. reported in 2011 (3) DNJ (Raj.) 1217, in which this Court held in para 6 as under: -

"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff's family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 13/16 landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit."

13. This Court in the case of LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms:

"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon'ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for his business place and from the facts found by the courts below it was clear that the very source of S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 14/16 livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business.

6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."

14. A bare perusal of the judgments cited by the learned counsel for the respondent-tenant indicates that the facts of those judgments are absolutely distinguishable from the facts of the present case. In one case, tin shed was installed by the tenant outside the rented premises, and such temporary tin shed could not be compared with the nature of the material alterations done in the present case. In the present case, the tenant has made material alterations in the suit premises/shop without permission or consent of the landlord, referred to supra. Similarly, in Rajasthan High Court decision in the case of Smt. Supyar Bai (supra), the nature of construction raised was absolutely of temporary nature, which could be removed at any time, however, such facts are not obtaining in the case in hand. Therefore, both these judgments cited and relied upon by the learned counsel for the respondent-tenant are of no avail to him.

S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 15/16

15. On an overall reading of the reasons given by the learned lower appellate court, this Court is satisfied that the findings returned the learned lower appellate court in the impugned judgment and decree dated 14.11.1990 are perverse and not sustainable. The suit seeking eviction deserves to be decreed on both the grounds as aforesaid.

16. Accordingly, the present second appeal filed by the appellants-plaintiffs is allowed and substantial questions of law, framed above, are answered in favour of plaintiffs-landlord and against the respondent-defendant-tenant. No costs. The present second appeal itself has been allowed, therefore, application filed by the respondent-tenant during the course of arguments, being IA No.11336/2012 is rejected.

17. The respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit property to the appellant-plaintiff (landlord) within a period of six months from today and shall pay mesne profit @ Rs.5000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellants-plaintiff till the vacant possession is handed over to the plaintiff-appellants and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 16/16 decree of eviction would become executable forthwith. The respondent-tenant shall also clear all the arrears of the mesne profit within three months from today. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondent-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the appellants-plaintiff/landlord within a period of six months from today, besides execution of the decree in normal course, the appellants-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.

(DR. VINEET KOTHARI), J.

DJ/-

S-90

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Rajasthan High Court - Jodhpur