Allahabad High Court
Shubham Agarwal vs Paritosh Bhargava And Another on 8 September, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:53534 HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW MATTERS UNDER ARTICLE 227 No. - 5313 of 2025 Shubham Agarwal .....Petitioner(s) Versus Paritosh Bhargava And Another .....Respondent(s) Counsel for Petitioner(s) : Virendra Mishra, Shradha Mishra, Suyash Misra Counsel for Respondent(s) : Court No. - 6 HON'BLE PANKAJ BHATIA, J.
1. Heard learned counsel for the petitioner.
2. Present petition has been filed by the petitioner challenging the judgment and order dated 09.09.2019 passed by JSC Court whereby a decree of ejectment has been passed against the petitioner as well as the order dated 23.01.2025 whereby the revision has been dismissed.
3. The facts, in brief, are that the respondents landlord had let out the premises in question in favour of the petitioner as a tenant. Subsequently, it was alleged that the tenant had stopped paying rent and had also carried out alteration in the property in question without the permission of the landlord. In the suit filed by the respondents vide the plaint contained in Annexure - 4, in paragraph 7 there was a specific averment that alterations and additions were carried out in the shop in question which also damaged the shop and the value of the shop was diminished on account of the defendant tenant. A reply was filed by the petitioner to the said plaint in which a specific stand was taken that the answering defendant did not carry out any alteration or addition in the tenement nor damage the shop. In para 12 of the reply it was also stated that the defendant did not carry out any alteration and addition and the value of the shop has not been diminished. With regard to the arrears of rent, a plea was taken that the entire amount of rent due alongwith the interest has been paid so as to claim the benefit under Section 20(4) of U.P. Act No.13 of 1972.
4. During the pendency of the suit, an affidavit was filed by the landlord which is on record as Annexure - 10 wherein in Paragraph 5 it was specifically stated that the defendant has broken down the arch and had installed beams which has resulted in the terrace becoming weak, and the entire shape of the property has been changed.
5. In the cross examination, which is on record as Annexure - 11, nothing was shown so as to discredit the specific affidavit of the landlord specifically Paragraph 5 of the said affidavit.
6. In view thereof, the JSC Court decreed the suit on account that there were material alterations carried out by the tenant which was a ground for eviction and a decree of eviction was passed against the petitioner. Challenging the said, the petitioner preferred a revision under Section 24 of the Act. From the judgment of the revisional Court as well as the material on record, nothing appears to have been pleaded that the affidavit given by the landlord with regard to the material alterations being carried out which resulted in disfigurement of the property was wrong. In view thereof, the revisional Court also affirmed the finding of the JSC Court and dismissed the revision.
7. Both the orders are under challenge in the present petition.
8. Learned counsel for the petitioner argues that no material was placed by the landlord to demonstrate that the property was disfigured on account of the alleged alterations carried out. Reliance is placed upon the judgment of the Supreme Court in the case of Waryam Singh v. Baldev Singh; (2003) 1 SCC 59 wherein the following was observed in Paragraph 16:
"16. However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility, the appellant has led no evidence at all. The submission has been that no evidence was required to be led as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case there is no proof, like in Vipin Kumar case [(1993) 2 SCC 614] that free flow of light and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. In the absence of any proof of material impairment in value or utility, the High Court was right in concluding that no decree for eviction could be passed. We, therefore, see no reason to interfere with the judgment of the High Court."
9. Reliance is also placed upon a judgment of this Court in the case of Har Narain Singh v. Ravi Shanker Nigam; 2022 (12) ADJ 408 wherein the Court after noticing the facts held as under:
"32. Surprisingly, there is no finding recorded by the Revisional Court about the effect of replacement of the existing tile-worked roof with a stone-slabbed roof, supported by girders on the value or the utility of the demised shop or about the fact if the changed roof has disfigured it. The finding recorded is about the twin use, to which the demised shop has been put after placing a plywood partition, where it has been held that the said double user of the shop brings about a structural alteration, which leads to value and utility of the shop being diminished. There are then some very mixed up remarks by the Revisional Court, where the reasoning seems to have gone haywire between the requirements of Sections 20(2)(c) and 20(2)(d) of the Act. It is observed by the Revisional Court that though the landlord's case is not one under Section 20(2)(d), DWs 1 and 2 have admitted the fact that in the demised shop, apart from its authorized user, it is being put to the additional use of a tailor's shop. This observation is followed by the remark that in a situation where the shop has been divided into two parts, one being where the tailoring work is done, in the Court's opinion the change certainly leads to a diminishment of the value and utility of the demised shop.
33. This Court is afraid that the finding recorded by the Revisional Court, unlike the Trial Court, is flawed for confounding the requirements of Sections 20(2)(c) and 20(2)(d) of the Act. It is also flawed, because it has inferred a case of structural alteration by the putting up of a plywood partition. The plywood partition certainly does not bring about structural alteration. Dismantling the existing tile-worked roof and replacing it by one of stone-slabs with girder support, may. Therefore, the Revisional Court has observed in manifest illegality that partition of the demised shop into two part by a plywood partition, amounts to structural alteration. The other finding recorded is that by use of the demised shop as two, one for housing the flour mill and the other for the tailoring business, certainly leads to diminishing its value and utility, is also manifestly illegal. It is so because the diminishment in value or utility must come from the structural alteration made to the building and not from the use that it is put to. The plywood partition is not a structural alteration, as already said, and, therefore, cannot be linked to the diminishment in value or utility or even disfigurement. The use of a shop for two kinds of trades or business may or may not diminish the shop's utility, but that is not something, which is the consequence of a structural alteration. It may or may not be a case of inconsistent user, prohibited by Section 20(2)(d) of the Act, but that is not the ground on which the suit for eviction has been instituted. The Revisional Court appears to have been cognizant of this folly in the finding and has mentioned it in hesitant words. However, the Revisional Court has gone ahead to say that the plywood partition of the shop and its use for the twin business of the flour mill and the tailor's shop, lead to a diminishment of its value and utility. The said finding is completely beyond the purview of the requirements of Section 20(2)(c) of the Act. The reason is that the Revisional Court has not opined the way it did, because a plywood partition had been put up in the shop, dividing it into two, but the fact that the shop subdivided as it is by a plywood partition is being used for the purpose of two different trades/business. There is nothing inferred as a diminishment in the value or the utility of the demised shop from any structural change made, but one from the nature of business added to the existing one. There is, therefore, nothing on the findings recorded by the Revisional Court to conclude that any of the structural changes made have led to a diminishment in the value or the utility of the demised shop or its disfigurement.
34. There is hardly any finding about the impact on the value or the utility of the demised shop, in consequence of the existing tile-worked roof being replaced by stone-slabbed roof supported by girders. Likewise, there is no finding whether the replacement of the existing doors on the shop have led to diminishing of its value or utility or disfiguring it. These are the relevant inquiries, which ought to have been made by the Courts below before returning a finding on the ground under Section 20(2)(c) of the Act.
35. On what parameters, the plea under Section 20(2)(c) of the Act has to be examined, has been spelt out by this Court in Umesh Kumar v. Arun Kumar, 2012 SCC OnLine All 3987. In Umesh Kumar (supra), it has been held:
6. Section 20(2)(c) of Act, 1972 would be attracted incurring liability for ejectment of tenant from the let out building only when landlord is successful in proving the following:
(1) There is no permission obtained by tenant in writing from landlord;
(2) The tenant has made or permitted to make some construction or structural alteration in the building; and (3) Construction/structural alteration, as above, is such as is likely to diminish the value of property or utility or to disfigure it.
7. So far as consent part is concerned, the concurrent finding is that there is no such consent available with tenant. It is also not in dispute that certain construction/structural alterations have been made by tenant in the shop in question. Therefore, first two aspects as above are satisfied and this Court has to find out whether the inference drawn by Courts below about factor (3) above is just and valid or is so manifestly illegal or illogical or erroneous so as to justify this Court's intervention in writ jurisdiction.
8. This Court in Dr. Jai Gopal Gupta v. Bodh Mal [1969 ALJ 477.] held that in a suit filed for eviction on the ground of ?material alteration?, the Court has to first record a finding about the actual construction made by tenant and such finding will be a finding of fact. Having done so, the Court thereafter would have to form an opinion whether such constructions have ?materially? altered the accommodation or is likely to cause substantial damage to its value. That was the requirement under statute, as it was up for consideration in Dr. Jai Gopal Gupta (supra) but the language of section 20(2)(c) has removed the word ?material alteration? and it is now differently worded. Now the term is ?construction? or ?structural alteration?. The two terms namely construction or structural alteration are much lighter requirement than the term material alteration. Now every construction or structural alteration, whether it can be said to be ?material? or not would attract the mischief under section 20(2)(c) of Act, 1972 provided it further satisfy the their requirement namely diminish the value of the property or utility or to disfigure it.
9. Be that as it may, the subsequent opinion, which is to be formed by a Court, i.e., the effect of construction/structural alternation on accommodation about its value, utility etc. is a finding involving a mixed question of fact and law. This has to be determined on the application of correct principle of law. This has been said by Apex Court in Om Prakash v. Amar Singh [(1987) (13) ALR 163 (SC).].
10. The findings regarding alteration/structural changes made by tenant in accommodation in question as recorded by Trial Court, therefore, would have to be taken final since it is finding of fact. The Revisional Court hereat has also not pointed out anywhere in the revisional judgment that the said finding of fact is based on no evidence or that it is perverse or there is otherwise any error or jurisdictional fact. To this extent no interference needs in this case.
13. 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. It can thus be said that to attract section 20(2)(c) it has to be established that the tenant has committed such acts of construction or structural alteration as are likely to diminish the quality, strength or value of building or rented land to such an extent that intrinsic worth or fitness of the building or rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of landlord and not of tenant or any one else. This aspect has also been reiterated by Apex Court in Gurbachan Singh (supra) in para 12 of the judgment. In Gurbachan Singh (supra) also the tenant had removed full size door of one shop and merged the shop into open part of verandah. All these activities were held to be a constructional alteration impairing material value and utility of building. The Court observed:
?14??? 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??? In the present case the removal of the roof of the shops partition walls and the doors, laying of a root, merging of the verandah with the shops, closing the doors and opening new doors 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 appellant-landlords within the meaning of section 13(2)(iii) of the Act.?
18. In Ram Chandra (supra) Hon'ble N.N. Sharma, J. considered the question, whether the nature of alteration was a ?material alteration? or not but this Court has no hesitation in observing that in section 20(2)(c) the landlord is not required to prove ?material alteration? but he has to show a ?structural alteration? made, having the effect of disfigurement or diminishing the value or utility of rented building. The word ?material alteration? does not find place in section 20(2)(c) and, therefore, various authorities relied in Ram Chandra (supra), in my view, also would have no application to the case in hand, governed by section 20(2)(c) of Act, 1972."
(emphasis by Court)
10. In the light of the said, the submission of learned counsel for the petitioner is that both the impugned judgments cannot be justified and are liable to be set aside.
11. The said submission of learned counsel for the petitioner in the light of the judgments merits rejection for the sole reason that a specific averment was made in the plaint by the landlord with regard to material alteration being carried out and the affidavit filed by the landlord clearly stated that on account of the alterations carried out, the main arch was damaged which resulted in disfigurement of the property in question. In the cross examination, nothing was done by the petitioner so as to discredit the said specific assertion contained in the affidavit.
12. In view thereof, the Courts were right in decreeing the suit against the petitioner. The judgment of the Supreme Court and this Court would be of no avail to the petitioner as specific assertions in the form of affidavit exists against the petitioner which has not been controverted in the cross-examination.
13. Thus, no good ground for interference is made out. Present petition is accordingly dismissed.
(Pankaj Bhatia,J.) September 8, 2025 nishant