Punjab-Haryana High Court
Kasturi Lal vs Muni Lal And Ors. on 7 September, 1993
Equivalent citations: (1994)106PLR302
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. The present petition has been filed by the landlord against the concurrent findings recorded against him by the Rent Controller and the Appellate Authority, thereby dismissing the eviction petition.
2. The facts of the case are as under :-
Shop No. 173 situated in Jagraon, was owned by Kasturi Lai and Darbar Chand. Muni Lai was inducted as a tenant on a monthly rent of Rs. 41.10 Annas -8 paise on June 1, 1963. As per the rent note Ex.A-4 dated May 21, 1963, executed by the tenant, it appears that the premises in dispute consisted of three rooms and one verandah on the ground floor. The landlord, thereafter, sought eviction of the tenant on four grounds (a) that the tenant had not paid the rent from April 1, 1972 (b) that the period of tenancy had expired and the tenancy, accordingly, stood terminated (c) that the respondent had, without the consent of the landlord, constructed one Bhatti in the premises in question and started the business of manufacturing of Soap, thereby, changing the user of the premises and also materially impairing the value and utility thereof and (d) that the respondent had removed the door of a room and converted the verandah into a room thereby preventing the ingress and outgress of the landlord through the stairs for going to the upper storey.
3. The tenant resisted the application and controverted the allegations made. The parties faced the trial on the following issues :-
1. Whether the respondent has materially impaired the value and utility of disputed premises ? OPA
2. Whether the respondent has changed the user of the disputed premises without consent of applicants as'alleged ? OPA
3. Whether the respondent has breached the terms of tenancy, as alleged in para No. 3(i) of the petition ? OPA
4. Whether the respondent has been guilty of nuisance as alleged. If so, its effect ? OPA.
5. Whether a valid notice was served by the applicants to the respondents ? OPA
6. Whether applicant is a mere statutory tenant ? If so, its effect ?OPA.
7. Relief.
The Rent Controller returned the findings on all the issues in favour of the tenant and, accordingly, dismissed the eviction application. Aggrieved thereby, the landlord filed an appeal before the Appellate Authority and made a serious challenge to the findings of the Rent Controller only on issue Nos. 1 and 2. The Appellate Authority also found that the conversion of the verandah into a room and the blocking of the stair case could not be said to have materially altered or impaired the utility of the disputed premises but on the question of change of user held that as no specific purpose had been indicated in the rent note Exhibit A- 4, for which the shop could be used, there was no change of user and accordingly dismissed the appeal. The landlord has come up against the two orders mentioned above.
4. Mrs. Alka Sarin, learned counsel appearing for the petitioner, has once again made a serious challenge to the findings of the courts below on issue Nos. 1 and 2. She has urged that in view of the judgment of this Court in Narinder Nath (since deceased) through his LRs. v. Lt. Col. Jaswant Singh, (1993-2) 104 P.L.R. 401 the act of enclosing a verandah and affixing a door on the outer wall amounted to a material impairment of the building which brought the tenant within the mischief of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949. She has also urged that reliance for this proposition had been placed by this Court on a Supreme Court judgment in Vipin Kumar v. Roshan Lal Arora and Ors., (1993-2) 104 P.L.R. 349 (S.C.). She has also focussed my attention in the aforecited case that impairment of the value of a building had to be seen from the point of view of the landlord and not that of the tenant and the material impairment envisaged under a Rent Act, is "an inferential fact to be deduced from proved facts." Examining the facts of this case in the light of the aforesaid observations, it would be clear that alteration has been made as alleged by the landlord. In the rent note Ex. A4, it is specifically mentioned that three rooms and a verandah were being let out for being used as a shop. However, in the report on the Expert dated May 20, 1977 (Ex. RW10/A) produced by the tenant, it has been clearly stated that the demised premises now consisted of four rooms and there was no reference whatsoever to the verandah which earlier existed. The Expert who was examined as RW10 had also opined that the premises in dispute were almost 60 years old but to a pointed question put to him as to whether the 4th room on the Southern side had been covered into a room from a verandah, he replied in the negative and went on to say that 6/7 years back, it might have been a verandah. It is, therefore, apparent that as per the witness of the tenant, the premises originally consisted of three rooms and a verandah and that verandah ceased to exist sometime before the report dated May 20, 1977.1, therefore, find that in the light of the facts of the case read in conjuction with the judgments referred to above, there has been an impairment and material alteration in the nature of the demised premises.
5. I am, further, of the view that the petitioner is entitled to succeed on the question of misuser as well. In the rent note Ex. A4, there are repeated references to the fact that the premises were being let out for being used as a shop. It is the conceded case now that they are being used for the purpose of manufacturing soap. Even the Courts below found that this was the situation but on a misreading of the rent note Ex.A-4, a conclusion was recorded that as no specific business was mentioned in the rent note, the tenant was entitled to use the premises for any purpose. This finding is contrary to the judgment of this Court reported as Dharam Raj and Anr. v. Roshan Lal and Anr., (1993-1) 103 P.L.R. 685, in which it has been specifically held by a Division Bench that if the premises are let out for the purpose of being used as a shop, conversion of the same for manufacturing purposes would amount to misuser. In the cited case, the premises had been let out for being used as a shop, but had been used as a Godown and workshop by the tenant and this Court held that this amounted to misuser. In the present case, the facts are even more clear cut. Not only are the premises being used for the purpose of manufacturing soap, even a Bhatti has been constructed alongwith a chimni to take away the excess smoke.
6. For the reasons recorded above, the present petition succeeds and the orders of the Rent Controller as also the appellate authority are set-aside. The tenant is, however, granted three months time to vacate the premises provided the arrears of rent due alongwith rent for the next three months alongwith an undertaking to vacate the premises on the expiry of the aforesaid period, is filed before the Rent Controller, within one month from today. The respondent who is not represented before me, be sent a copy of this order under registered cover.