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"Section 3(1)(c):
(c) : That the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the Court, has materially altered the accommodation or, is likely substantially to diminish its value."

The Supreme Court considered some of the earlier decisions including some English cases on the point and observed that the expression "material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially changed the front or the structure of the premises. This has been so observed in para 7 of the judgment at pages 645-646. Then in para 8 of the judgment at page 646, the Supreme Court observed that lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises.

14. I may also refer to the Supreme Court decision in the case of Om Prakash v. Amar Singh and another, . That was a case under U.P. Cantonments (Control of Rent and Eviction) Act, (10 of 1952). All that the tenant had done in the said case was that he had constructed a partition wall in the hall and a tin shed in the open Court-yard adjacent to the building. It was held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. The Supreme Court observed that meaning of the words "materially altered" would show that the expression means a substantial change in the character, form and structure of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of essential and important nature. The Supreme Court then referred to its earlier decision in the case of Manmohan Das Shah's case, and observed in para 6 of the judgment at page 619 as under :--

"In determinating the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as inspite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation".

There can be no doubt about the proposition of law laid down by the Supreme Court. However, in my view, in this case, the Appeal Court has approached the problem in a manner which is totally perverse. I have already indicated the approach of the Appeal Court by quoting its observations in para 7 of this judgment. The Appeal Court was un-necessarily disturbed by the fact that the tenant had not entered into the witness box and, therefore, there was no reason to reject the plaintiff's version, regarding the permanent structure and material alternations done by the defendant. In fact, the evidence which was available on record was not even considered by the Appeal Court. The fact of the theft having taken place is clearly established which necessitated closure of the opening of 2' x 2' only for the purpose of better and safer use of the demised premises which were let out for residential purpose. In my view, this is a fit case where this Court should interfere in its jurisdiction under Article 227 of the Constitution. It would result in failure of justice if the petitioner-tenant is to be evicted on such a flimay ground when all that he did was to close the opening of 2' x 2' causes as a result of the theft and this was done for the purpose of having a better and safer use of the premises. There is no material change in the structure or in the building. The impugned judgment and order is, therefore, wholly unsustainable.