Allahabad High Court
Har Narain Singh vs Ravi Shanker Nigam on 29 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD At Residence Reserved A.F.R. Case :- MATTERS UNDER ARTICLE 227 No. - 6339 of 2021 Petitioner :- Har Narain Singh Respondent :- Ravi Shanker Nigam Counsel for Petitioner :- Manoj Kumar Sharma Counsel for Respondent :- Shalini Goel Hon'ble J.J. Munir,J.
1. This is a tenant's petition under Article 227 of the Constitution, questioning the decree of eviction and recovery of arrears of rent, besides mesne profits, passed concurrently by the two Courts below.
2. S.C.C. Suit No. 3 of 2015 was instituted by Ravi Shanker Nigam, the plaintiff-respondent, seeking eviction of the defendant-petitioner, Har Narain Singh, from the shop detailed at the foot of the plaint, giving rise to the suit, besides a decree for recovery of rent in the sum of Rs.5035/- and damages for use and occupation in the sum of Rs.5050/-, aggregating to a figure of Rs.10085/-. In addition, the plaintiff has sought a decree for pendente lite and future damages for use and occupation at the rate of Rs.50/- per day, besides costs of the suit. The suit has been instituted by the plaintiff-respondent (for short, 'the landlord'), pleading a cause of action that he is the landlord of the demised shop, wherein the defendant-petitioner (for short, 'the tenant') is a tenant at a monthly rent of Rs.150/-. Needless to say that exemption from the provisions of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (for short, 'the Act') has not been pleaded and it is common ground between parties that the Act applies. The suit has been instituted on the ground of actionable default under Section 20(2)(a) and structural alteration under Section 20(2)(c) of the Act.
3. It is the landlord's case that the tenant was in default of rent since 01.02.1996 and further that he had, without the permission in writing by the landlord, made construction as well as structural alteration in the demised shop, which tended to diminish its value, utility and disfigure it. The basis of pleading a case of structural alteration was the fact that according to the landlord, the tenant, without his permission, had partitioned the demised shop into two and caused the tile worked roof to be removed and replaced by a different roof, supported by girders and covered by stone-slabs. In addition, was the landlord's case that the existing door of the shop had been removed and replaced by another. All these changes were said to constitute structural alteration, that tended to diminish the utility of the demised shop and disfigure it.
4. The landlord served the tenant a notice to quit dated 26.09.2014, asking him to deliver vacant possession of the demised shop, upon expiry of 30 days of receipt of the notice. The notice dated 28.09.2014 was answered by the tenant by a reply dated 18.10.2014 on incorrect facts, refusing to vacate the shop and denying his liability to pay arrears of rent, besides damages for use and occupation demanded. The notice to quit was one composite under Section 106 of the Transfer of Property Act, 1882 (for short, ''the T.P. Act') and Section 20 of the Act. The suit was instituted by the landlord with the notice to quit being not complied with by the tenant. The suit was registered on the file of the Judge, Small Cause Court, Jhansi as S.C.C. Suit No. 3 of 2015.
5. The tenant put in a written statement and contested the suit. It was pleaded in the written statement that the demised shop was let out to the tenant's father between the years 1962-63 by the then landlord, Laxmi Shankar Nigam at a monthly rent of Rs.17.20. The tenant's father, prior to him, was the tenant in the demised shop. After his death, the tenant inherited the tenancy on the same terms and has held the demised shop in the same right, paying rent to Laxmi Shanker Nigam at the rate of Rs.17.20 per month. The last rent, that was paid to Laxmi Shanker Nigam, was in the month of December, 1995. It is the further case of the tenant that thereafter the tenant tendered rent by hand to Laxmi Shanker Nigam and then sent it at his correct postal address by money order on 01.01.1996, which he refused to accept. In consequence, the tenant instituted Misc. Case No. 110 of 1996, Har Narain Singh vs. Laxmi Shanker, under Section 30(1) of the Act before the Court of the Civil Judge (Jr. Div.), Jhansi with a prayer that he may be permitted to deposit rent in Court. Misc. Case No. 110 of 1996 was allowed vide order dated 03.12.1997 and the tenant has regularly deposited rent in Court with the last deposit made in the said Court on 31.12.2014.
6. It is then averred in the written statement that upon receipt of the notice to quit dated 26.09.2014 from the landlord and after answering it, in order to avoid controversy, the tenant remitted rent to the landlord from 01.02.1996 to 31.10.2014 at the rate of Rs.150/- per month by money order, which the landlord refused to accept. It is pleaded that the said facts are mentioned in the tenant's reply dated 18.10.2014, tendered in answer to the notice to quit. Later on, the tenant has deposited the entire rent due w.e.f. 01.02.1996 to 28.02.2015, together with interest and costs of the suit, in compliance with Section 20(4) of the Act, before the first date of hearing. The sum of money deposited in compliance with Section 20(4) of the Act is pleaded with full particulars in paragraph No. 27 of the plaint, indicating the five heads under which deposit of a total sum of Rs. 40,9345/0 has been made, calculating rent at the rate of Rs.150/- per month. On these facts, the case of actionable default under Section 20(2)(a) of the Act was denied and further relief from eviction was claimed under Section 20(4).
7. So far as the case of structural alteration leading to the demised shop's utility being diminished or the shop being disfigured is concerned, it is pleaded that the tenant has not done any structural alteration to the shop and it stays in the position it was when let out. The pleadings of the landlord about the structural alteration prohibited under Section 20(2)(c) of the Act are denied by paraphrase. It is said that the pleaded structural changes do not mention the date, month and year, when they were made. This is by and enlarge the pleaded case of the tenant in answer to the case of structural alteration in the demised shop leading to diminishment of its utility and disfigurement.
8. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi):
(1) Whether the plaintiff is the landlord of the demised part of the property and is there a relationship of landlord and tenant between parties?
(2) Whether the notice served by the plaintiff is valid?
(3) Whether the defendant has done material alteration to the demised premises without the permission of the plaintiff?
(4) Whether the defendant has committed default in the payment of rent?
(5) Whether the defendant is entitled to the benefit of Section 20(4) of the Rent Control Act?
(6) Whether the plaintiff is entitled to any other relief?
9. The landlord led documentary evidence and examined himself in support of his case as PW-1. He tendered in lieu of his examination-in-chief in the dock, his evidence on affidavit. He was duly cross-examined. The defendant too filed voluminous documentary evidence and examined himself as DW-1, besides another witness, Ram Sewak as DW-2. Both of them tendered their testimony on affidavits and faced cross-examined in the witness-box. The details of the documentary evidence are listed in minute detail in the two judgments of the Courts below and no useful purpose would be served by recapitulating that list of documentary evidence. Needless to say that the relevant of it shall be referred to during the course of the judgment.
10. The suit was tried and decreed by the Judge, Small Cause Court, Jhansi vide judgment and decree dated 16.09.2019. The Judge, Small Cause Court accepted the landlord's case on both grounds, to wit, actionable default and structural alteration leading to disfigurement of the demised shop and diminishment of its utility. The tenant's case of relief from eviction under Section 20(4) of the Act was not accepted.
11. The tenant preferred a revision against the decree passed by the Trial Court to the District Judge of Jhansi under Section 25 of the Provincial Small Cause Courts Act, 1860. The revision aforesaid was registered on file of the learned District Judge as Small Cause Revision No. 26 of 2019. The said revision upon assignment came up for hearing before the Additional District Judge, Court No.3, Jhansi. The learned Additional District Judge dismissed the revision and affirmed the decree passed by the Trial Court, but set aside the finding on Issue No. 5 alone, that is to say, the issue about entitlement of the tenant to relief from eviction under Section 20(4) of the Act.
12. Heard Mr. Manoj Kumar Sharma, learned Counsel for the tenant and Mrs. Rama Goel Bansal along with Ms. Shalini Goel, learned Counsel for the landlord.
13. It must be remarked here that there is no issue between parties that the landlord has inherited his right as the landlord from the original landlord, Laxmi Shanker Nigam being his nephew. It is also to be remarked that the Revisional Court after holding the tenant in actionable default under Section 20(2)(a) of the Act has extended the benefit of Section 20(4), but upheld the decree on the ground of structural alteration etc. under Section 20(2)(c) of the Act. The findings recorded by the Revisional Court relating to the benefit of Section 20(4) of the Act have not been assailed on behalf of the landlord. Therefore, the decree as now stands to be assailed is one of eviction, founded on the ground of structural alteration etc. under Section 20(2)(c) of the Act. It is for this reason that the Revisional Court has directed deposits made in whatever Court, to be adjusted against the decretal amount.
14. Mr. M.K. Sharma, learned Counsel for the tenant has been at pains to show that there is no actionable default on the tenant's part and if there be one at all, the tenant stands relieved of his liability from eviction under Section 20(4) of the Act. The said part of Mr. Sharma's submission is not required to be gone into, because the learned Counsel appearing for the landlord does not assail the finding by the Revisional Court extending the benefit of Section 20(4) of the Act. This stand of the landlord has already been noticed earlier, but a mention of the same has been made again in the context of Mr. Sharma's detailed submissions regarding actionable default and relief from eviction etc., made at the hearing.
15. The learned Counsel for the tenant has assailed the correctness of the findings returned by the two Courts below regarding the validity of the notice to quit, on which the suit is founded. It is his submission that the tenancy being for a manufacturing purpose, the lease shall be deemed to be one from year to year, terminable by six months' notice and not 30 days under Section 106 of the T.P. Act. It is emphasized that the lease here was for a Flour Mill (Aata Chakki), which is a manufacturing purpose, entitling the tenant to six months' notice. However, the notice to quit is one that terminates the lease at the end of 30 days. The notice is, therefore, invalid.
16. The learned Counsel for the landlord has supported the said finding and drawn the attention of the Court to the judgment of the Revisional Court in this regard. A perusal of the judgment of the Revisional Court shows that the Judge has discarded the tenant's submission regarding the mandatory duration of the notice under Section 106, T.P. Act, being six months in the case of a lease for a manufacturing purpose, relying on the provisions of Section 20(2)(a) of the Act. The relevant part of Section 20, including the provisions of sub-Section (2)(a) read:
"20. Bar of suit for eviction of tenant except on specified grounds- (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words four months in this clause shall be deemed to have been substituted by the words one year;"
17. The Revisional Court has held that the provisions of the Act would prevail over the provisions of Section 106, T.P. Act, because the Act is a special statute, whereas the T.P. Act is a general law. The aforesaid exposition of the law by the Revisional Court cannot be accepted. The duration of notice to quit, envisaged under Section 106, T.P. Act, is altogether different from the period of notice, envisaged under Section 20(2)(a) of the Act. Section 106 of the T.P. Act governs the period of notice, necessary to determine a lease of immovable property, unless there be a contract or local law or usage to the contrary. Section 20(2)(a) of the Act, on the other hand, has a completely different scope and purpose. It has nothing to do with the period of notice to determine a lease regarding immovable property.
18. Section 20(2)(a) of the Act is to be understood in the context of sub-Section (1) of Section 20, which bars the right of a landlord to sue the tenant for eviction from a building, despite the determination of his tenancy, either by efflux of time or on the expiration of a notice to quit or in any other manner, except on the grounds envisaged under sub-Section (2) of Section 20. Thus, sub-Section (1) of Section 20 introduces a general embargo on the right of the landlord to evict his tenant from a building by serving him a notice to quit or on the expiration of lease by efflux of time. The various clauses of sub-Section (2) envisage grounds, on the fulfillment whereof, the embargo to sue would be lifted. Clause (a) of sub-Section (2) envisages the first of these grounds, where the bar on the landlord's right to sue his tenant for eviction would not be there. The terms of Clause (a) of sub-Section (2) provide that the tenant, who is in arrears of rent for not less than four months and has failed to pay rent to the landlord within one month from the date of a notice of demand, would entitle the landlord to bring a suit for eviction against him. Thus, sub-Section (2)(a) of Section 20 affords the grounds on which the landlord can institute a suit for eviction against his tenant from a building, but by itself does not envisage a notice to quit determining the lease, which is governed by Section 106 of the T.P. Act. The period of 30 days envisaged under Section 20(2)(a) of the Act is not, in any manner, the period of time relating to a notice to the tenant to quit or one determining his tenancy. It is the period of time to be stipulated in a notice of demand of arrears of rent that are due for a period of four months or more, which if not paid within the period of 30 days, despite the demand notice, would entitle the landlord to sue for eviction. Since in many cases, a notice to quit under Section 106 of the T.P. Act requires a period of 30 days, at the end of which the lease would stand determined, it has been judicially approved as a valid notice, where the Act applies, that a combined notice to quit and demand for arrears of rent etc. under Section 106, T.P. Act read with Section 20(2)(a) of the Act may be served on the tenant, who is in actionable default.
19. In a different context, where the question was whether in the State of Uttar Pradesh, it was necessary for a landlord to serve a notice to quit under Section 106 of the T.P. Act, after the decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, holding that in proceedings governed by the Rent Control Act, a notice to quit under Section 106 of the T.P. Act is not necessary, this Court in Jagdish Kumar Khanna v. Shakuntala Devi and others, 1980 ARC 535 remarked:
14. It is well settled that the Rent Control Acts do not completely supersede or supplant the provisions of the Transfer of Property Act governing the relationship of landlord and tenant. The Rent Control Act superimposes itself on the relevant and material provisions of the Transfer of Property Act. The provisions of the Rent Control Act override and prevail only in so far as they go. Since there is no provision for determination of tenancy in the Rent Control Act, one has necessarily to look to the provisions of the Transfer of Property Act. Section 111 of the Transfer of Property Act provides for determination of tenancy. Some of the methods provided therein are by efflux of time or on the expiration of notice to quit. This is provided by Section 106 of the Transfer of Property Act. The phrase ''after the determination of his tenancy' occurring in sub-section (2) of Section 20 refers to the determination of tenancy in accordance with law, i.e. in the provisions of the Transfer of Property Act. This brings in Section 106.
20. The above exposition of the law, though made in a different context, is a universal principle governing the determination of tenancy in the State of Uttar Pradesh, so long and so far as the Act applies. The Revisional Court, therefore, went astray to look for the duration of notice required to terminate the tenancy in the provisions of Section 20(2)(a) of the Act. The said period is to be determined only with reference to the provisions of Section 106 of the T.P. Act. To that extent, the findings of the Revisional Court are wrong. This brings us face to face with Mr. Sharma's submission that the notice to quit is bad in law, because the lease here was one for establishing and running a flour mill (Aata Chakki), a manufacturing purpose, where the statutory period of a valid notice to quit is six months. The provisions of Section 106 of the T.P. Act read:
106. Duration of certain leases in absence of written contract or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month-to-month, terminable on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
21. No doubt, the period of time required to determine a lease granted for a manufacturing purpose is six months by notice, but this statutory period is subject to a contract, local law or usage to the contrary. Here, what the Court finds is that in the notice to quit dated 26.09.2014, there is a clear assertion that the tenant holds the demised premises on a monthly rent of Rs.150/-. In the reply notice, it is acknowledged by the tenant that his father was a tenant in the demised premises, let out by the late Laxmi Shanker Nigam on a monthly rent of Rs.17.20 and that rent up to December, 1995 has been paid. Elsewhere, also in the reply notice, the rent has been acknowledged at a monthly rate. Likewise, in Paragraph No. 1 of the plaint, it is averred to the following effect:
1- यह कि वादी दुकान नम्बर जिसकी सीमायें नीचे दी जा रही हैं स्थित अन्दर सैंयर गेट झांसी का मालिक व लैण्डलोर्ड है और उक्त दुकान मे प्रतिवादी 150/- प्रतिमाह की दर से बतौर किरायेदार आबाद है।
22. In Paragraph No. 22 of the written statement, it is averred on behalf of the tenant as follows:
22- यह कि तथ्य यह है कि प्रश्नगत दुकान प्रतिवादी के पिता ने सन 1962-1963 में उक्त दुकान के स्वामी व लैण्ड लोर्ड श्रीमती लक्ष्मी शंकर से रू0 17.20 पैसे माहवार की दर से किराये पर ली थी तहायात प्रतिवादी के पिता प्रश्नगत दुकान में बतौर किरायेदार आबाद रहे। बाद वफात प्रतिवादी के पिता प्रश्नगत दुकान में उन्हीं शरायतों पर उत्तर दाता प्रतिवादी श्री लक्ष्मी शंकर निगम की ओर से बतौर किरायदार वशरह रू0 17.20 पैसे माहवार आवाद हुआ व चला आता रहा व प्रतिवादी न उक्त श्री लक्ष्मी शंकर निगम को माह दिसम्बर सन 1995 तक का किराया अदा किया।
23. In the rent receipts also, that have been filed before the Trial Court vide a list of documents, annexed as Annexure No.7 to the writ petition, there is consistent mention of rent at a monthly rate. In the cross-examination of the defendant too, the case is of the demised shop, being held on a monthly rent. From all these circumstances, it is evident that the lease always was one from month-to-month. It was not a lease from year-to-year that Section 106 of the T.P. Act postulates. A contract to the contrary, notwithstanding the lease being for a manufacturing purpose, is clearly discernible. Therefore, in the opinion of this Court, the tenancy was validly terminated by a 30 days' notice. The question involved here fell for consideration before this Court in Smt. Ram Murti Devi v. Vth Additional District Judge, Meerut and others, 1982 SCC OnLine All 776. Interestingly, the facts in Smt. Ram Murti Devi (supra) show that the demised premises, a garage, was let out to the tenant for the purpose of running a flour mill (Aata Chakki). It has been described in report as 'flour machine'. Amongst other things, the tenant questioned the validity of one month's notice to determine the tenancy on the ground that the lease was for a manufacturing purpose and required on the landlord's part a six month's notice to terminate the tenancy. Answering the said issue in Smt. Ram Murti Devi, it was held:
15. The revisional court also referred to and relied on a decision in the case of Binda Din v. Smt. Pran Dei reported in 1968 All LJ 721. I have examined this case and I find that the same fully supports the view taken by the courts below. In this case, it has been held that though a tenancy may be for manufacturing purposes, the parties may agree that the tenancy would be from month to month irrespective of the purpose of tenancy. It was further held that where there was an admission by the tenant that in regard to a manufacturing lease monthly rent was payable, it would be a stronger case for holding that the tenancy was of monthly duration. The learned Judge referred to the decision of the Supreme Court in the case of Ram Kumar v. Jagdish Chandra reported in AIR 1952 SC 23 and held that section 106 of the Transfer of Property Act embodied a rule of construction for finding out the duration of the lease and he observed that if there was no other evidence and circumstance, the lease would be deemed to be from year to year terminable at six months' notice where it is for manufacturing purpose. However, the learned Judge observed that if there was an indication that the tenancy was from month to month, the lease would be liable to be terminated on a month's notice even if it was for manufacturing purposes.
16. I am in respectful agreement with the view expressed in the aforesaid case. Learned Counsel however placed reliance on the decision of the Supreme Court in the case of Ram Kumar (supra) and contended that the decision of this court in the case of Binda Din reported in 1968 All LJ 721 requires reconsideration. He submitted that according to that decision, it is the purpose of the lease and not the mode of payment of rent which is decisive of the issues.
17. I cannot agree. The Supreme Court has not ruled that where the lease is for manufacturing purpose, there cannot be an enquiry whether there is any indication that the parties had agreed that the lease would be from month to month. Nor has the Supreme Court said that the mode of payment cannot afford any indication as to the duration of the lease agreed to between the parties. The Supreme Court in this connection observed thus at page 27 (column 1):
"It has no doubt been recognised: in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption."
18. The decision of this Court in the case of Binda Din, 1968 All LJ 721 is in my opinion in accord with the law laid down by the Supreme Court.
19. Learned counsel for the petitioner vehemently contended that the mode of payment cannot be a ground for holding that the tenancy was a month to month tenancy. The submission has no force. In Ram Kumar's case (AIR 1952 SC 23) (supra) the Supreme Court has made observations (quoted above) which do lend support to the view that mode of payment, even if not conclusive of the controversy, can be considered for ascertaining whether notwithstanding the purpose of the lease there is no indication that there was a contract to contrary within the meaning of Section 106 of the Transfer of Property Act. In any case, in the present case, it is the cumulative effect of various facts and circumstances on the basis of which the courts below have held against the petitioner. The mode of payment was not the sole ground for holding against the petitioner. In my view, even if the mode of payment may not per se be decisive of the issue, it cannot, in my view, be said that the mode of payment is an altogether irrelevant circumstance. Far from being irrelevant, the mode of payment is, in my view, an important and relevant circumstance for ascertaining whether there is any contract to the contrary as to the duration of the lease.
24. In the facts found here, the tenancy, in the opinion of this Court, was clearly one for month-to-month. It could be determined by a month's notice. The notice to quit, therefore, cannot be questioned on the said ground.
25. Now, it is submitted by the learned Counsel for the tenant that the findings of both the Courts below on the issue of structural alteration without the written permission of the landlord, leading to the building housing the demised premises suffering a diminishment in its value or utility and its disfigurement, are patently flawed. It is argued that it was the landlord's burden to adduce expert evidence or take out a commission for local inspection to show what structural alterations have been done, and if done, how these diminished the value of the building housing the demised premises or affected its utility or disfigured it. It is submitted that the Courts below placed the burden on the tenant's shoulders to adduce evidence, negatively oriented to establish that there was no violation of Section 20(2) (c) of the Act.
26. A look at the Trial Court's findings on the issue does not require this Court to spare a second thought in accepting the tenant's criticism that the Trial Court has wrongly placed burden upon the tenant to prove the case of structural alteration. The short finding recorded by the Trial Court on the issue can be best appreciated by a reproduction thereof verbatim:
"इस तथ्य को सिद्ध करने का भार वादी पर था कि प्रश्नगत दुकान में प्रतिवादी ने मौलिक स्वरूप को परिवर्तित करा दिया गया है। प्रतिवादी की ओर से जो साक्ष्य प्रस्तुत की गयी है। उसमें प्रतिवादी ने अपनी जिरह के पेज 7 पर यह कथन किया गया है कि प्रश्नगत दुकान जब किराये पर ली गयी थी उस समय कच्ची खपरैल थी, मैं नहीं बता सकता, दुकान जैसी थी, वैसी है। दुकान में आटा चक्की के साथ मेरा बेटा दर्जी का काम भी करता है। जिसकी दुकान सी०ए० टेलर्स के नाम से है। वर्ष 1998 से मेरा लड़का टेलरिंग का कार्य कर रहा है। वर्तमान में दुकान पर पत्थर की छत डली है, छत के समय दुकान में प्लास्टर का कार्य कराया था। जिसका खर्चा पिता जी ने दिया था। इस साक्षी ने आगे अपनी जिरह में यह भी कथन किया है कि प्रश्नगत दुकान के मालिक वादी हैं। मैं अपने लड़के को प्रश्नगत दुकान में दर्जी का काम करने के लिये कोई अनुमति नहीं ली थी। प्रतिवादी द्वारा बहस के दौरान यह तर्क प्रस्तुत किया गया है कि वादी द्वारा प्रश्नगत दुकान संरचनात्मक परिवर्तन के बावत न तो कोई अमीन आख्या या फोटोग्राफस प्रस्तुत किये हैं, न ही परिवर्तन व परिवर्धन नियत तिथि वादी द्वारा अपने वाद/ साक्ष्य में प्रस्तुत की है। इस संबंध में पत्रावली के परिशीलन से यह विदित हुआ कि उक्त वादी के कथनों के संबंध में प्रतिवादी द्वारा भी न तो अमीन आख्या मंगाई गयी न ही कोई फोटोग्राफ्स इस बावत प्रस्तुत किया गया। इस प्रकार वादी द्वारा इस तथ्य को सिद्ध करने में सफल रहे कि प्रतिवादी दवारा प्रश्नगत दुकान में निर्माण या संरचनात्मक परिवर्तन जिसमें उसका मूल्य या उसकी उपयोगिता घटने की संभावना हो, किया गया है। तदनुसार यह विनिश्चय बिन्दु सं०-3 वादी के पक्ष में निर्णीत किया जाता है।
(emphasis by Court)
27. A reading of the said finding clearly shows that the Trial Court has not at all looked into evidence led on behalf of the tenant to establish a case of structural alteration of the kind envisaged under Section 20(2)(c) of the Act. The Trial Court has virtually assumed the case to be proved, as alleged, and then held that for the reason that the tenant has not applied for a commission to carry out a local inspection or produced photographs, the conclusion ipso facto is that the tenant has made structural alteration to the demised shop as is likely to diminish its value or utility or disfigure it. The finding is absolutely based on no evidence, and proceeds as if there were a presumption about the prohibited structural alteration in support of the landlord's case. The finding to that extent is perverse also.
28. The Revisional Court has examined the matter in some detail. The findings recorded by the Revisional Court, with reference to the evidence DWs 1 and 2 on the question of structural alteration, are to the effect that both the DWs have acknowledged in their cross-examination that structural alterations have been done to the shop, where a plywood partition has been put in place, and apart from the flour mill installed, an additional tailor's shop had been established. In the relevant part of cross-examination of DW-1, it has been accepted that the demised shop had a kachcha tile-worked roof, but now the shop has a roof fixed with girders and stone slabs. It has been further said, when the roof was changed, he did not remember. The stone-slabbed roof was laid during the tenancy of the witness's father. Again, DW-2 has stated in his cross-examination that the shop has two doors: in one part, there is a flour mill and in the other, the tailors shop exists. The building in question, according to the witness, had no wall. The partition wall is made of plywood.
29. From all this evidence, the further finding recorded by the Revisional Court is that the testimony of DWs 1 and 2 shows shows that the tenant has done structural alteration to the demised shop. It is next remarked that there is no permission produced for the said structural alteration. It is observed that on the other hand, the landlord says, that whatever structural alteration has been done by the tenant, it was without his permission. The said assertion is unrebutted on the tenant's part.
30. The finding on Issue No. 3 recorded by the Revisional Court concludes with the remarks that the Trial Court's finding on Issue No. 3 is liable to be affirmed to the extent that the tenant has, without the permission of the landlord, made structural alteration in the demised shop. The Revisional Court has then said that the further issue, whether the structural alteration made is one that is likely to diminish the value or utility of the shop or disfigure it, would be answered later on in the Revisional Court's judgment.
31. The Revisional Court while answering Issues Nos. 4 and 5, which quintessentially are about default and relief from eviction, has recorded findings on the point, whether the structural alteration is likely to diminish the value or utility of the demised shop or disfigure it. The relevant finding recorded is extracted below:
(iii) प्रश्नगत वाद इस अधिनियम की धारा २०(२) (ग) के अधीन भी योजित किया है। जैसा कि उपरोक्त प्रस्तरों में अभिनिर्धारित किया गया है प्रतिवादी द्वारा प्रश्नगत दुकान में वादी की इजाजत के बिना परिवर्तन व परिवर्धन किया है तथा दुकान को दो भागों में विभाजित भी कर लिया है जिसमें से एक पार्टीशन में प्रतिवादी के पुत्र द्वारा दर्जी का भी कार्य किया जा रहा है। अतः ऐसी स्थिति में इस न्यायालय के अभिमत में इस संरचनात्मक परिवर्तन से प्रश्नगत दुकान का मूल्य एवं उसकी उपयोगिता निश्चित रूप से घटती है। यद्यपि वादी द्वारा इस अधिनियम की धारा २०(२) (घ) के अधीन यह वाद योजित नहीं किया गया है, जबकि डी०डबलू०- १ एवं डी०डबलू०-२ के स्वयं की स्वीकारोक्ति है कि प्रश्नगत दुकान में मूल कार्य के अतिरिक्त दर्जी का भी कार्य सम्पादित किया जा रहा है। किन्तु उस स्थिति में भी जबकि दुकान को दो हिस्सों में बांट लिया गया है और एक हिस्से में दर्जी का कार्य सम्पादित किया जा रहा है, इस न्यायालय के अभिमत में ऐसा परिवर्तन प्रश्नगत दुकान के मूल्य एवं उपयोगिता को निश्चित रूप से घटाता है एवं उसे विरूपित भी करता है।
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 and others, 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)
36. Considering that the issue of structural alteration is essentially a question of fact in the first instance and the Trial Court has not written a word worth the name in returning its finding on the issue, this Court is of opinion that for the determination of the said issue, the matter has to go back to the Trial Court. The other issues, that have been decided by this judgment, shall no longer be open to the parties or the Courts of Trial or Revision to examine. The findings of the Courts below on Issues Nos. 1, 2, 4 and 5 are all affirmed, subject, of course, to the remarks in this judgment. The Trial Court is, therefore, required to re-determine the suit on Issues Nos. 3 and 6 alone, regarding which the parties shall be free to suit their case on merits. The parties shall be at liberty to lead further evidence on the said issues, if they so desire. While determining the suit afresh, the Trial Court shall bear in mind the guidance in this judgment.
37. In the circumstances, this petition succeeds and is allowed. The impugned judgment and decree dated 14.01.2021 passed by the Additional District Judge, Court No.3, Jhansi in S.C.C. Revision No. 26 of 2019 as well as the judgment and decree dated 16.09.2019 passed by the Judge, Small Cause Court, Jhansi in S.C.C. Suit No. 3 of 2015 are set aside, except to the extent of findings upheld by this judgment. The Judge, Small Cause Court, Jhansi shall proceed to try and determine the suit afresh, after hearing the parties and their witnesses. Considering the fact that the suit is one of the year 2015 and occasion has arisen, where a remand has been made to the Trial Court, it is directed that the Trial Court shall proceed with the suit, fixing two dates of effective hearing every week and decide the suit within a period of three months of the date of receipt of a copy of this judgment.
38. Let a copy of this judgment be communicated to the Judge, Small Cause Court, Jhansi through the learned District Judge, Jhansi by the Registrar (Compliance).
Order Date :- 29.9.2022 Anoop