Punjab-Haryana High Court
Harvinder Kaur vs Baljit Singh Jeji on 2 September, 2014
CR No.6522 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(1) CR No.6522 of 2011.
Decided on:-September 2nd, 2014.
Smt. Harvinder Kaur. .........Petitioner.
Versus
Baljit Singh Jeji. .........Respondent.
(2) CR No.6540 of 2011.
Jagjit Singh. .........Petitioner.
Versus
Baljit Singh Jeji. .........Respondent.
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON.
*****
Argued by:- Mr. Amit Jain, Advocate
for the petitioner(s).
Mr. Vinod Arya, Advocate
for the respondent.
Dr. Bharat Bhushan Parsoon, J.
The aforementioned two civil revision petitions filed by the tenants are directed against orders dated 19.8.2006 of the Rent Controller and of 19.8.2011 of the Appellate Authority respectively under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter mentioned as the Act) whereby these were found to be cases of material impairment in value and utility of the premises, which had made the petitioners-tenants liable for YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -2- eviction.
2. As the matter in issue involved in both the petitions is the same, the same are being taken up together for adjudication.
3. However, for convenience and clarity, facts have been taken from CR No.6522 of 2011. Challenging both the impugned orders, the tenant has claimed that the courts below failed to take note of the fact that the material impairment in value and utility of the premises had been made by the landlord himself before the tenant had been inducted in the premises pursuant to rent note of 23.2.1994. It is further claimed by the tenant that neither any addition nor alteration was made by her nor it was by any one at her instance and further that no case for her eviction was made out. In short, it is urged that all the alterations pointed out were made by the landlord himself to make the premises more useable.
4. The respondent-landlord, on the other hand, has claimed that when the rent note of 23.2.1994 had made a provision for repairs in some parts of the premises to be carried out by the tenant himself at the cost of the landlord, extensive alterations in construction and structure were made by the tenant incurring liability of her eviction. Reiterating that impugned orders dated 19.8.2006 of the Rent Controller and dated 19.8.2011 of the Appellate Authority are well reasoned and valid, dismissal of the revision petition has been sought.
5. Hearing has been provided to the counsel for the parties while appreciating the attending facts and circumstances as available on record and on the paper book.
6. In the eviction petition filed on 21.4.1995 interalia on the ground of making of extensive additions and alterations resulting in material impairment in value and utility of the premises, on the part of the tenant, her YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -3- eviction was ordered by the Rent Controller on 19.8.2006. In appeal preferred by the tenant, such finding recorded by the Rent Controller has been affirmed. In short, there is concurrent finding on the question of fact of material impairment in value and utility of the premises because of additions and alterations made in the premises by the tenant.
7. Counsel for the tenant-petitioner relying on Shashi Jain Versus Tarsem Lal (Dead) and another 2009 (1) Rent Control Reporter 485 (SC) has urged that notwithstanding concurrent findings on question of facts, a higher court has right to set aside findings of the courts below, if such findings are perverse and are based on misreading of evidence. There is no dispute about this law and there cannot be any.
8. It may, however, be mentioned that this Court acting in revisional jurisdiction cannot act as Appellate Authority. In Civil Appeal No.6177 of 2004 decided on 27.8.2014 titled Hindustan Petroleum Corporation Limited Versus Dilbahar Singh, referring to Rukmini Amma Saradamma v. Kallyani Sulochana and others (1993) 1 SCC 499, the Full Bench of Hon'ble Supreme Court of India has held as under:
"Rukmini holds, and in our view, rightly that even the wider language of Section 20 of the Kerala Rent Control Act does not enable the High Court to act as a first or a second court of appeal. We are in full agreement with the view of the 3- Judge Bench in Rukmini that the word "propriety" does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. We approve the view of this Court in Rukmini."
x x x "The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -4- confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law."
9. In a bid to show that findings recorded by both the courts below are perverse as also are based on misreading of evidence, counsel for the petitioner-tenant has made extensive reference to the pleadings of the parties as also to the evidence produced by the parties. Perusal of the eviction petition (Annexure P-2) filed by the landlord before the Rent Controller reveals that the case of the landlord is clear and transparent. Para 3 of the petition for ready reference is appended as below:
"3. That the respondent-tenant has made structural additions and alterations in the shop in dispute and is guilty of committing such acts which have impaired materially the value and utility of the shop in dispute. The building of which the shop in dispute is a part is an old building. The back southern wall of the shop which was 13 inches in thickness has been scrapped by the respondent to the height of 8-9 feet approximately. This scrapping has been done to the extent of 8- 9 inches by the respondent and the Dat in this wall has been removed also. This scrapped portion and the remaining portion of this back wall has been cement plasted by the respondent. The eastern side wall was of 13 inch in thickness has also been removed and only 4½" thick wall has been constructed in its place. The remaining width has been included in the shop. The western side wall which was also 13 inches in thickness has also been removed in connivance with Jagjit Singh tenant of the petitioner in the adjoining shop and 4½" wall in thickness has been constructed in its place. Both, the respondent and Jagjit Singh other tenant of the petitioner in the adjoining shop has included the portion which has become available to them after converting and re-constructing this 13" thick wall into 4½"
thick wall. The arch (dat) in this intervening wall supporting on his side and Jagjit Singh on his side has also made some construction work in this wall which will be determined and brought on the file after inspection of the shop with the permission of the court and similarly other additions and alterations made as stated above and hereinafter will be brought on the record by getting the shop examined from a qualified civil Engineer with the permission of the Hon'ble YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -5- Court as the respondent do not allow access to the petitioner or anybody else to inspect the shop. The respondent has also laid new marble floor in the shop and has tried to conceal the act of addition and alterations made by her. Parchhati all over has also been laid by the respondent and thus additional burdens have been put on the wall. The respondent has also raised height of the roof by raising height of walls and has re-laid the roof by 2 to 3 feet higher than the height of the old roof. Height of roof has also been raised by Jagjit Singh. The additions and alterations are of permanent nature and are structural one and has effected the safety of the building as the load bearing walls have been removed and scrapped as stated above. The raising of the height of the roof has impaired materially value and the utility of the roof of the remaining old building of the petitioner. In the front wall there was no opening above the projection but now while raising the height of the wall a new iron Grill has been fixed and banners of the height of 2/2½ feet has been constructed above the roof the shop in dispute as well as of the adjoining shop jointly by the respondent and Jagjit Singh- tenant in the adjoining shop. Thus additional load has also been put on the roof. Thus the respondent has made herself liable to ejectment from the shop in dispute."
10. Controverting these allegations, plea of the tenant-petitioner herein is also well-pronounced as also is terse and telling. Corresponding para 3 of the written statement of the tenant, is reproduced as below:
"3. That para No.3 is wrong and hence denied. No addition or alteration of permanent nature has been made by the respondent. The petitioner be put to strict proof of the allegations. The construction is old one. It was got repaired at the time of starting the tenancy by the landlord. No construction has been made by the respondent, at any time. The arch was never removed by the respondent. The building as stands today was taken on rent. The changes in the construction was made by the landlord at the starting of the tenancy. The respondent was authorised to effect the repair of the roof for which the petitioner paid the amount of Rs.2,000/-. No change has been made by the respondent. The building is quite safe and healthy. The other allegations in this para are wrongly described and hence denied."YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -6-
11. Pleadings of the parties would not be complete if relevant portion of replication preferred by the landlord to the written statement of the tenant is not taken into consideration. Consequently, para 3 of the replication, for ready reference, is also reproduced as below:
"3. Para No.3 of the petition has been wrongly denied. The same is correct and reiterated. It is wrong that the respondent has not made additions or alterations in the shop in dispute, as stated in the petition. The fact that the shop in dispute is an old construction has been rightly admitted except for additions and alterations made by the respondent without consent of the petitioner. It has been wrongly stated that no construction has been made by the respondent. The removal of the Arch by the respondent has been wrongly denied. It is correct that minor repairs were effected and Rs.2,000/- were paid by the petitioner to the respondent for the same but it was specifically made clear that the respondent was not entitled to make any additions and alterations in the shop in dispute. It is wrong and denied that changes in the construction were made by the landlord at the starting of the tenancy. This plea is wrong and denied, rather it amounts to implied admission on the part of the respondent that she has made additions and alterations of the permanent nature in the shop in dispute as stated in the petition. It has been wrongly stated that no change has been made by the respondent. It is wrong that shop in dispute is quite and healthy. The facts stated in this para of the petition have not been denied as required under Order VIII Rule 5 CPC, as such amounts to admission on the part of the respondent of the facts stated in the petition and so laid down by the Hon'ble High Court also. Evasive reply is no reply in the eyes of law and amounts to admission."
12. From co-joint reading of these pleadings of the parties, it clearly emerges that:
(i) Shop of Smt. Harvinder Kaur and shop of another tenant Jagjit Singh are the premises in litigation and are part of an old building. Shop of another adjoining tenant Jagjit Singh is located on west of the shop of Smt. Harvinder Kaur;
(ii) Relationship of landlord and tenant between the parties is YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -7- regulated vide rent note of 23.2.1994 (Ex.AX). Shop presently under tenancy of Smt. Harvinder Kaur earlier was on rent with Harnam Singh Kataria, her father in law.
Earlier to the inception of present tenancy in favour of her and earlier to the tenant having started business for effecting change of the roof, the tenant had charged Rs.2,000/- from the landlord; and,
(iii) It had further been undertaken by the tenant that no further construction or change would be made by her therein. Clauses 4 and 7 of the said rent note for ready reference, are being reproduced as below:
(4) The shop is old and Rs.2000/- (Rs. Two thousand) as compensation have been taken from the landlord and I could change the roof.
(7) I shall not effect demolition in the shop or any change in the building.
13. On going through the statement of Building Expert N.S. Bhalla (AW1) who holds diploma in civil engineering of 1953 with support of 35 years of experience as Sub-Divisional Engineer in PWD (Buildings & Roads) Department of Punjab, which includes vast practical experience of construction and maintenance of various types of buildings and other engineering works, it transpires that extensive changes were brought in the premises. Report (Ex.A3) prepared by Building Expert N.S. Bhalla (AW1) with explanatory site plan Ex.A1 is not only detailed and descriptive but is also sustained and supported by photographs Ex.A4 to A17 proved by Waryam Singh photographer (AW2). There are explanatory notes Ex.AW4/A1 to Ex.AW17/A1 on the back of these photographs which are scribed by Building Expert N.S. Bhalla (AW1). Alongwith the shop in dispute, report (Ex.A3), site plan (Ex.A1) and photographs (Ex.A4 to A17) also furnish details of the shop adjoining on the western side in possession of tenant Jagjit Singh which was also inspected and details are contained herein.
YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -8-14. Pointed and probing cross-examination was effected on this witness by the tenant which continued for two days but more the cross-examination became grilling and scrutinising on him, more transparently has emerged the case of the respondent-landlord. From examination of Building Expert N.S. Bhalla (AW1), it has become evident that structural additions and alterations have been made in the shop materially impairing the value and utility thereof. Walls of the shop which were having thickness of 13 inches were scrapped substantially to extend the floor area of the shop. In such endeavour of increasing the area, the archs have also been removed. Though scrapping has been done upto the extent of about 9' on 13' tall walls but removal of the arch of the southern as well as western wall adjoining with other tenant Jagjit Singh, has considerably reduced the value and utility of both the premises in possession of Smt. Harvinder Kaur and of Jagjit Singh.
15. Walls on southern, eastern and western side have been scrapped whereas archs of southern and western side had been removed. With removal of archs as also scrapping of the walls apparently with intervention of another tenant Jagjit Singh, he has thus been benefited with more floor space becoming available to him with the intervening wall on western side with tenant Smt. Harvinder Kaur having been considerably scrapped.
16. Parchhatti all over has been laid thus, causing additional burden on the concerned walls. Re-laying of the roof with increased height in place of old roof in both the shops has permanently changed the structural pattern clearly compromising with the safety of the building with removal of load bearing walls and scrapping of other walls.
17. Fixing of iron grill of the height of about 2½ feet above the roof of the shop as also on the adjoining shop of tenant Jagjit Singh concomitantly raising the height of the wall as well for banners has resulted YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -9- in putting of additional load on the roof resulting in material impairment of value and utility of the premises.
18. The testimony of landlord Baljit Singh Jeji (AW4) is corroborative of details of the report (Ex.A3) and explanatory site plan (Ex.A1). On appreciation of this and other evidence, the questions which were answered by the Rent Controller and Appellate Authority are:
(i) How much time was taken in carrying out the additions and alterations?; and,
(ii)Who had carried out such changes in the premises?
19. Co-joint reading of pleadings of the parties as also the cross- examination effected on landlord Baljit Singh Jeji (AW4) and Building Expert N.S. Bhalla (AW1) by the tenant, does not leave any doubt that changes and alterations of substantial nature had been made in the premises. Landlord Baljit Singh Jeji (AW4) claims that these structural changes in the premises were effected from 6th June to 5th July. Even Building Expert states that about a month or so must have been taken in carrying out these structural changes.
20. So far as the second question is concerned, plea of the tenant is that such changes were brought about by the landlord himself so as to make the tenant comfortable as considerable increase was made in the rent payable from Rs.50/- to Rs.500/- per month. This plea of the tenant, however, is hollow. If the landlord was to effect the structural changes himself, he was not to permit the tenant to do so, as is apparent from Clause 4 of Rent Note (Ex.AX). Rather, it is admitted case of tenant Smt. Harvinder Kaur that Rs.2,000/- for the changes in raising of the roof brought about in the premises by her, were charged from the landlord by the tenant.
YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -10-21. Further, this theory of structural changes having been brought about by the landlord as claimed by the tenant also fails because it is not the case of the tenant that the shop in dispute ever came in possession of the landlord during the period of tenancy, rather, it is established on record that the same continued in possession of the tenant all along. Earlier possession was with Harnam Singh Kataria i.e. father-in-law of the present tenant and after his death, tenancy was incepted in favour of the petitioner-tenant, by executing rent note dated 23.2.1994. If the landlord was to carry out structural changes in the tenanted premises, he was to do so prior to inception of the tenancy. Moreover, the landlord then was not to pay Rs.2,000/- to the tenant on account of raising the height of the roof by way of effecting the repairs. Receipt of payment of Rs.2,000/- on this count is admitted by the tenant.
22. When the shop continued to be in possession of the tenant all-through the period of tenancy and business was being carried out all along, the landlord could not have continued carrying structural changes for a month without tenant having parted with possession of the shop in question to the landlord which is not even the case of the tenant. Admittedly, possession earlier was of the father-in-law of the tenant and thereafter, she herself is in possession. Landlord never regained the possession in between the period of tenancy.
23. Claim of the tenant that no objection was raised by the landlord during the alleged construction allegedly raised by the tenant, is another issue. It remains a fact that the landlord is not residing in the immediate vicinity of the shop in dispute. He was rather visiting the shop in dispute only once a while for collecting the rent and such visits would not be more than once a month. It is, thus, a clear case where even while running the business in the premises, the tenant continued making structural alterations YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -11- other than those which were permissible as per Clause 4 of Rent Note (Ex.AX) and they had changed the very terra-ferma of the tenanted premises from every angle, without consent of the landlord.
24. Viewing the entire spectrum of facts and circumstances, tenanted premises are not what they were rented out to the tenant. Tenant cannot be allowed liberty to tinker with the construction plan as also structural aspects of the tenanted premises. No landlord rents out his property to be tinkered with its structural plan and constructional scheme to have entirely different premises on termination of tenancy by way of vacation of premises by the tenant. No landlord builds tenanted premises for the tenant.
25. In these circumstances, plea of the tenant that construction was made by the landlord has no substance. Construction raised by the tenant is of substantial nature. It has completely changed and destroyed the structural plan as also constructional inputs by materially impairing the value and utility of the premises. Sequelly, the Rent Controller and the Appellate Authority were right in adjudicating issue No.1 against the tenants and in favour of the landlord. There is neither any mis-construction of facts nor of misreading of evidence.
26. Counsel for the petitioner-tenant seeking support from G. Reghunathan Versus K.V. Varghese 2005(2) Rent Control Reporter 247 (SC) has urged that not only raising of construction is to be proved but it is also to be established that value and utility of the premises had been reduced permanently and materially. Reference has also been made to Waryam Singh Versus Baldev Singh 2002(2) Rent Control Reporter 594 (SC) and Raj Rani and another Versus Krishan Bhatia and others 2010(1) Haryana Law Reporter 205 (P&H).
YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -12-27. Counsel for the petitioner-tenant seeking further support from Ramjas Mal Versus Jugal Kishore and others 2003(2) Rent Control Reporter 371 (P&H) has urged that where no time for bringing of changes in the building is mentioned, it is a serious lapse. To suffer repetition, in the present case, it has already come in the statement of landlord Baljit Singh Jeji (AW4) and Building Expert N.S. Bhalla (AW1) that raising of construction had taken almost more than a month. It has also abundantly come in testimony of Building Expert N.S. Bhalla (AW1), sustained and supported by landlord Baljit Singh Jeji (AW4), that the structural changes brought in constructional plan of the premises have materially impaired the value and utility of the premises. Relevant portion of statement of landlord Baljit Singh Jeji (AW4) is to the following effect:
"The respondent in connivance with Jagjit Singh, my other tenant in the adjoining shop has raised the heights of roofs of both the shops and relaid the lintel roof in place of old battened roof at a higher level of 3-4 feet. The intervening wall removed and reconstructed and the relaying of the lintel roof has been done by the respondent inclusion with Jagjit Singh. In the front wall above the projection iron grill has been affixed in the front of these shops. It has also effected the safety of the building. My addition or alterations made by the respondents, the safety of the building has been effected due to unequal load distribution and structural changes. My adjoining old building has also been effected due to raising of the height of the roof."
x x x "I have seen the photographs Ex.A4 to A17 on the record of the case which were got taken at the time if inspection of Sh. N.S. Bhalla, Kapil Khanna, Adv. L.C. appointed by the court. Photographs were taken by Waryam Singh photographer. Parchhati all over the shop has also been laid by the respondent. Thus additional burden has also been put on the wall. On the front wall banners of the height of 2-2½ feet has also been constructed above the roof which is also visible in the photographs and additional load on the roof has also been put."YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document CR No.6522 of 2011 -13-
28. Report (Ex.A3) proved by Building Expert N.S. Bhalla (AW1) and photographs (Ex.A4 to A17) proved by Waryam Singh photographer (AW2) are fully supportive of the claim of the landlord.
29. Sequelly, findings of the Rent Controller as also of the Appellate Authority concurrently returned against the tenants that additions and alterations of structural nature have been brought out by the tenant which have materially impaired the value and utility of the premises, had rightly been recorded and there is no mis-construction or mis-appreciation of evidence in coming to this conclusion by both the authorities under the Act.
30. Keeping in view the totality of facts and circumstances and the discussion made as above, the impugned orders neither suffer from any factual nor legal error. Sequelly, affirming the same, these petitions, being devoid of any merit, are dismissed.
(Dr. Bharat Bhushan Parsoon)
nd
September 2 , 2014 Judge
'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes YAG DUTT 2014.09.18 13:49 I attest to the accuracy and integrity of this document