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As has been noticed hereinbefore, the appeal preferred by the respondent came out to be successful and the eviction order was set aside.

Counsel for the petitioner would argue that there is no dispute between the parties that intervening wall between the two rooms under tenancy of the respondent, depicted in the site plans Exs. A-2 and A-3 has been removed by the respondent-tenant who was permitted to make additions and alterations but without making any structural change in the demised premises when the parties on the basis of request made by the respondent vide letter dated 28.3.1994 (Ex. R-1) agreed to enhance the rent to Rs. 650/- per month with effect from 1.4.1994 vide agreement dated 4.4.1994. It is vehemently argued that as the respondent is guilty of making structural change by removing the intervening wall and converting two rooms into a big hall, the respondent is guilty of such acts as are likely to impair the value or/and utility of the tenancy premises. In support of his contention, he has heavily relied upon Division Bench judgment of this Court Narain Singh vs. Bakson Laboratories etc. 1981(2) RCR (Rent)

I have heard counsel for the parties, perused the paper book and records.

Before adverting to the submissions made by counsel for the parties, it is appropriate to extract the averments pertaining to material impairment set up in sub para (b) of para 3 of the eviction application, reads thus:-

"That the respondent has materially impaired the value and 3 of 11 utility of the tenanted premises by making structural additions/additions without the written consent and permission of the petitioner. The respondent was given right to make temporary additions/alterations for his office working, but in no case the respondent was allowed to make additions/alterations so as to change the existing structure of the building. The respondent was given on rent two rooms as shown yellow in the site plan attached, but the respondent by making structural changes removed the intervening wall of the rooms and made a big hall, thereby materially impairing the value and utility of the tenanted premises. The wall removed was a load bearing wall of the room and by removal of this wall the building has become weak. The respondent had damaged the structure of the demised premises despite the protest by the petitioner."

Indisputably, the Rent Controller accepted claim of the petitioner that the respondent-tenant has made structural change in demised premises by removing the intervening wall and converting two rooms into a big hall and this act is likely to impair the value or/and utility of the tenancy premises.

The Appellate Authority, in para 25 of the judgment, has held that on careful scrutiny of oral and documentary evidence led by the parties, it can safely be held that there was one wall connecting two rooms which was removed by the respondent-appellant while renovating his office i.e. fixing vitrified tiles on cemented floor and false ceiling to cover wooden balas and iron angles. It has also taken note that the respondent-

4 of 11 tenant was authorised to make such additions/alterations as mentioned in his letter dated 20.3.1994 as were convenient for his office working but those additions/alterations should not damage existing structure of the building.

In para 26, the court has posed a question whether removal of intervening wall amounts to material additions/alterations which had damaged existing structure of the building leading to impairing the value and utility of the building. In paras 27 onwards, the court has made reference to judgments relied upon by the tenant (appellant therein) and concluded in para 34 that by applying the ratio of law to the facts and circumstances of the present case, only inescapable conclusion is that act of the tenant in removing the intervening wall can not be said to have caused impairment of value and utility of the building nor the same amounts to material additions/alterations or affecting the structural change of the demised premises. Further held that the landlord is running business on the ground floor of the premises. It is not version of the landlord that due to removal of said wall, structure of the ground floor particularly the pillar or foundation has developed any crack or has been damaged. The wall in question can not be declared to be a load bearing wall but appears to be a parda wall. The tenant is running office of chartered accountant on the first floor. He has renovated the demised premises in order to suit his requirement. No such sane person would ever opt to make any addition or alteration in the rented property which could cause impairment of the value and utility of the building and can demolish the same rendering his own life unsafe while running the office. Rather, by fixing vitrified tiles, false ceiling 5 of 11 and renovating the other portion, value and utility of the premisses appear to have enhanced.