Punjab-Haryana High Court
Ram Kumar And Ors. vs Shri Ditt Ram Verma on 17 February, 1992
Equivalent citations: (1992)101PLR463
JUDGMENT V.K. Jhanji, J.
1. This is tenant's revision against whom an order of ejectment has been passed by the Courts below.
Ditt Ram Verma, respondent-landlord sought ejectment of his tenant, Shanti Parkash, inter-alia on the following grounds.
(i) not-payment of rent ;
(ii) demised premises having become unfit and unsafe for human habitation;
(iii) tenant guilty of impairing the value and utility of the premises by making material alterations/additions without the written consent of the landlord ; and
(iv) sub-letting of premises by Shanti Parkash to his son, Sham Lal, and change of user of premises from tailoring shop to that of manufacturing of scissors.
2. The tenant on the first date of hearing, tendered the arrears of rent and therefore, first ground was not pressed either before the Rent Controller ox the appellate Authority. However, the Rent Controller passed an order of ejectment on the other grounds. On appeal, the appellate Authority affirmed the finding of the Rent Controller. The orders of both the Courts below are being impugned by the tenant in this revision petition.
3. Learned counsel for the petitioners with regard to the ground of sub-letting submitted that the landlord has not been able to prove on record that the tenant has parted with the possession of the property.
4. On the other hand, learned counsel for the respondent-landlord submitted that both the Courts below have returned the finding in favour of the landlord on the aforesaid issue; therefore, no interference is called for by this Court.
5. Admittedly, the premises in dispute which consist of one room in front, two rooms in the back and a open court-yard were let out to Shanti Parkash vide Rent note dated 17th of August, 1976. Under the said rent note, the tenancy was to start from 1st of September, 1976, at the rate of Rs. 200/- per month. Perusal of the rent note shows that the demised premises were let out for running the business, and no specific purpose has been mentioned for which the said premises were to be used. The Authorities below have returned a finding that a portion of the premises is being used for running a tailoring shop and the other portion being used for the manufacturing of scissors. However, the Authorities below on the question of sub-letting drew an inference against the tenant for non-production of voter's list, ration card, account books, and thus, found that it was a clear case of subletting on son having used a part of the premises for the manufacturing of scissors.
6. After perusing the record, I find that ejectment on the aforesaid ground cannot be sustained. From the site plan produced on record, one thing is evident that the front portion is being used for tailoring business whereas the back portion is being used for manufacturing of scissors. The entire premises are so inter-connected that it cannot be said that any portion is in exclusive possession of Shanti Parkash or Sham Kumar, Moreover, there is no satisfactory evidence on record to prove that the business of manufacturing of scissors is being run by the son exclusively. The landlord can succeed only if he could prove that the tenant is not in possession of the demised premises There is no cogent evidence on record to prove that the tenant, Shanti Parkash, was no more in occupation of the demised premises; rather the evidence on record is that he is runing the business in a part of the premises. In these circumstances, the finding of the Authorities below cannot be sustained. Even otherwise, Shanti I Parkash having died during the pendency of the proceedings, his son inherited the tenancy. In these circumstances, the son cannot be treated as a sub-tenant and he would be entitled to the benefit of ratio of the decision by Supreme Court in the case of Gian Devi v. Jiwan Kumar, A. I. R. 1985 S. C. 796. This view also expressed by this Court in Ram Sarup v. Lal Chand, 1990 (8) P. L. R. & S. 666.
7. Learned counsel for the petitioners with regard to ground of change of user submitted that no specific user has been mentioned in the rent note and therefore, the order of ejectment on this ground cannot be maintained. On the other hand, learned counsel for the respondent submitted that the rent note describes the premises as a 'shop' and therefore, manufacturing of scissors in the premises cannot be equated with that of sale and purchase of goods, and therefore, the tenant is guilty of using the premises from that of shop to manufacturing.
8. In my considered view, merely because the premises have been described as a shop, is not enough to hold that the tenant is guilty of changing the user. It is not disputed before me that these very premises were earlier got vacated from another tenant and thereafter, the same were being used by the son of the landlord for the manufacturing of spare parts for radio etc., and for that matter, he obtained a licence from the Department of Central Excise, Jalandhar. The licence was to manufacture goods which were liable to a central duty of exercise. The respondent in his statement has admitted that his son was carrying on the business of manufacturing radio parts in these very premises. Exh. R-3 is a copy of licence issued by the Superintendent, Central Excise, Jalandhar, to manufacture goods liable to a central duty of excise. In this view of the matter, the tenant is not liable to be ejected on the ground of change of user because the premises in dispute are such which can be used for manufacturing apart from carrying on of the other business and trade.
9. Now coming to the ground of impairing the value and utility of the premises by the tenant, the Authorities below passed an order of ejectment after finding that the roofs of the rooms marked 'A' and 'B' were demolished and were reconstructed, and the ventilators 'V-1 and V-2' were opened in these roofs and the stair case was demolished; the door was widened, and a partition was made by the tenant in the property in dispute after the creation of tenancy without the written consent of the landlord. In order to arrive at this finding, the Authorities below compared the Site Plan, Exh. A-5 and site plan, Exh. A-6. The site plan, Exh. A-6 was produced in a case titled as 'Ditt Ram v. Phool Chand, which was filed by the landlord for the ejectment of the tenant who was there in these premises some where in the year 1968-69. The tenant was confronted with site plan, Exh. A-6, for the first time, in his cross-examination, but no specific question was put as to whether the stair case was demolished. There is no satisfactory evidence on record to show that any staircase existed at the time when the premises in dispute were taken on rent by the tenant.
10. As far as replacement of the roofs, putting up of ventilators and widening of the door is concerned, the tenant cannot be ejected as the alterations in my view, cannot be said to have brought about a substantial change in the structure of the building The Authorities below have also not noticed one material fact which goes to the very root of the case, i.e. when the premises in dispute were let out to the tenant vide rent note dated 17-8-1976, Exh. A-4, it was mentioned therein that it shall be the responsibility of the landlord to replace the roofs of the building which were in bad condition. In view of this specific note in the Rent Note, it was to the knowledge of the landlord that the roofs of the rooms require replacement. I fail to understand what prejudice has been caused to the landlord if the tenant has replaced the roofs, rather it has saved the landlord of expense of replacement roofs which he had agreed to do so at the time of creation of tenancy. Moreover, the alleged alterations stated to have been done by the tenant are not permanent in nature and are not such which had diminished the value of the property. The Supreme Court in Om Pal v. Sh. Anand Swarup, (1988-2) 94 P. L. R. 699 (S.C.), reviewed the entire case law on the subject and held as under :-
"As has been repeatedly pointed out in several decisions, it is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract Sec. 13(2) (iii) the construction must not only be one affecting or diminishing the value on utility of the building but such impairment must be of a material nature, i.e. of a substatial and significant nature. It was pointed out in Om Parkash v. Amar Singh, (1987 (I) SCC 458 at 463) that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word "materially altered the accommodation" and as such the construction of the chabutra, almirah opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making alterations for the convenient use of the accommodation would not materially alter the building. It would therefore follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.
11. Considering the facts of this case in the light of judgment of Supreme Court in Om Pal's case (supra), I find that the Authorities below have failed to construe Section 13(2) (iii) in proper perspective and have failed to apply the correct legal tests for judging the nature of the constructions alleged to have been made by the tenant.
12. The ejectment of the tenant on the ground that the property has become unfit and unsafe for human habitation is also not sustainable because the order of ejectment on this ground was passed primarily on the consideration that the roofs of the rooms marked 'A' and 'B' in the site plan, Exh. A-5, were demolished and reconstructed by the tenant without the written consent of the landlord. In view of my finding that the replacement of the roofs has not impaired the value and utility of the premises in dispute; therefore, I have no hesitation in setting aside the findings of the Authorities below on this issue also.
13. For the reasons recorded above the revision petition is allowed and the orders of the Authorities below are set aside. However, there shall be no order as to costs.