Srimati Bhoj Kunwar v. Ram Kumar Agarwal — 1975 DIGILAW 210 (ALL)

JUDGMENT Jagmohan Lal, J. - This is a landlord's second appeal whose suit for ejectment was decreed by the trial court but dismissed by the lower appellate court. The accommodation in question was governed by the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (to be herein after called as the old Act) which has since been repealed. 2. The suit out of which the appeal has arisen was however filed before that repeal. The ground on which the ejectment of the tenant was sought was that he had without the permission in writing of the landlord made constructions which had materially altered the accommodation and thereby incurred liability to ejectment under Section 3 (1) (c) of the Act. The construction that had been made by the defendant without the written permission of the plaintiff consisted of enclosing a small Chabutra existing inside the courtyard by walls and thereby converting it into a bathroom. Formerly that Chabutra was used for bathing purposes. Secondly he fixed up a hand-pipe in the courtyard for the purpose of taking out water from it. Thirdly the Chabutra which had loose bricks and the boys used to take away the bricks of that Chabutra were pointed with cement and on three sides of this Chabutra walls were raised Fourthly he divided two rooms into four rooms by constructing partition walls it those rooms. Lastly he removed some windows of these rooms and replaced them by doors and a door was absolutely closed with bricks. 3. Both the trial court and the lower appellate court were of the opinion that the first three alter nations made by the defendant did not amount to material alterations within the meaning of Section 3(1) (c) of the old Act. The learned Munsif was however of the opinion that the last two alterations amounted to material alteration. He expressed himself in these words: "Now the question arises whether the building of walls in the two rooms and thereby converting two rooms into four rooms and the removing of windows and fixing doors amount to material alteration or not. To my mind these amount to material alterations. The converting of one room into two rooms has definitely changed the form of the room in as much they have now become small. To my mind these amount to material alterations. The converting of one room into two rooms has definitely changed the form of the room in as much they have now become small. The removal of windows and fixing of doors at their place and the closing of one door by bricks also to my mind amount to material alterations became such changes also affect the form of the room. If these changes cannot amount to material alterations then what will amount to material alterations. " 4. The lower appellate court was however of the view that even these two alterations did not amount to material alterations within the meaning of Section 3 (1) i(c). In his opinion unless it is shown by the plaintiff that the walls are permanent in nature and that the same may not be removed without causing damage to the accommodation, it is difficult to conclude, in favour of the plaintiff that the walls have materially altered the accommodation. He further observes: "................ A tenant may make constructions in his accommodation which are consistent with the reasonable user of the premises for the purposes permissible under the lease. If the constructions do not in any substantial manner change the form or structure of the building, or cause irreparable or costly injury to the budding or render the budding unfit for being used for the purpose for which the same was intended to be used, the tenant cannot in any way be held guilty of having caused material alterations in the building by the constructions he makes." The learned Civil Judge, therefore, allowed the appeal and dismissed the plaintiff's suit. 5. In this second appeal the learned counsel for the defendants-respondent raised a preliminary objection that since the Temporary Act has been repealed by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (to be hereinafter called as the new Act), the alterations made by the defendant would be judged in the light of Section 20 (2) (c) of the new Act which provides that the tenant shall be table to be evicted if he has without the permission in writing of the landlord made any such construction or structural alteration in the building as is likely to diminish its value or its utility or disfigure it. According to him this ground is materially different from the ground mentioned n clause (c) of sub-sec. According to him this ground is materially different from the ground mentioned n clause (c) of sub-sec. (1) of Section 3 of the old Act, which is to the effect 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. In fact, under the old Act, there were two different grounds in this clause (c) while under the new Act the two grounds have been made into one composite ground. However, so far as the present onus is concerned, it will be governed by clause (a) of sub-sec. (2) of Section 43 of the new Act which provides : "any suit for.. the eviction of a tenant instituted on any ground mentioned in sub-sec. (1) of Section 3 of the old Act, or any proceeding out of such suit (including any proceedings for the execution of a decree passed on the basis of any agreement, compromise or satisfaction) pending immediately before the commencement of this Act, may be continued and concluded as if this Act has not been passed." The learned counsel for the respondent contends that this clause should be so construed as to satisfy the requirements of Section 20 (2) (c) of the new Act for the purposes of eviction of the defendant-respondent. In support of his contention he relies on a Division Bench decision of this court in Allahabad Theatres v. Smt. K. Kumari, 1974 ALJ 196. That was a case relating to a cinema building. The landlord had filed a suit on two grounds. Firstly he contended that the building was a post-1951 construction and as such it was not governed by the provisions of the old Act and the defendant was liable to be ejected by a simple notice under Section 106 of the Transfer of Property Act. In the alternative it was alleged that even if the building is proved to be governed by the old Act, the tenant had committed default in payment of rent within the meaning of Section 3 (1) (a) of the old Act. The suit was dismissed by the trial court and the matter was pending before this court in first appeal which the new Act came into force. The suit was dismissed by the trial court and the matter was pending before this court in first appeal which the new Act came into force. Under the new Act enema buddings irrespective of the time when they were constructed were not governed by that Act. On behalf of the landlord it was contended that so far as that suit was concerned it would be governed by the provisions of the old Act. This contention was not accepted by the Division Bench on two grounds. Firstly it was held that since the new Act did not give any protection to the tenants holding cinema buildings that protection was no more available to them under the old Act also; otherwise it would create an anomalous position because a landlord of a cinema budding ho bad filed his suit before the new Act on one of the grounds mentioned in Section 3 (1) of the old Act could not get a decree against the tenant unless that ground was established. But other landlords who had filed similar suit after the New Act had an absolute right to terminate the tenancy under Section 106 of the Transfer of Property Act and evict the tenant. Secondly it was held that the suit of the landlord was a composite suit and it could not be said that it was wholly a suit brought on any ground mentioned in sub-sec. (1) of Section 3 of the old Act within the meaning of Section 43 (2) (c) of the new Act. 6. In the present case we are not concerned with a cinema building. The Division Bench did not rule out that a suit filed on the ground mentioned in Sec 3 (1) (c) of the old Act shall also be governed by the provisions contained in Sec 20 (2) (c) of the new Act. On the other hand, it made the following material observations at page 201 of the report: "......... It, therefore, appears to us that the saving clause contained in Section 43(2) (s) is meant only for a limited purpose, the purpose being that in case a suit on one of the grounds mentioned in Section 3(1) of the old Act is pending either in the original court or in appeal, the same would be permitted to continue as if the new Act has not been enforced. The purpose or intention of providing such a saving clause with regard to these suits is not far to seek. The provisions of the new Act contained in Section 20 provide carious grounds for evict on of a tenant. A comparison of clauses (a) to (g) of Section 3 (1) of the old Act with clauses (a) to (g) oil Section 20 (2) of the new Act would show some distinguishing features, but in all material particulars they would be found to be the same. Hence as no useful purpose was going to be served by making the suits already filed on one of the grounds mentioned in Section 3 (2) of the old Act as infructuous the legislature by Section 43 (2) (s) provided that those suit would be continued as if the new Act had not come into force." 7. Another decision referred to by the learned counsel for the respondent in this connection is Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396 in which the following observation was made in para. 19 at page 402. Section 43 (2) (h) states that notwithstanding the repeal of the earlier Act an court before which any suit or other proceeding relating to the eviction from any building is pending immediately before the commencement of this Act may, on application being made to it within 60 days from such commencement grant leave to any party to amend its pleadings in consequence of the provisions of this At. It is, therefore, clear that even if the statute for recovery of possession be one under the earlier rent Control law the later Act will apply and necessary amendments n the pleadings can be made. This definitely indicates that it is the later Act that must govern pending proceedings for recovery of possess on or recovery or fixation of rent. However, the suit with which we are concerned is not even one under the Act, but proceeds in the footing that the defendant is only a licensee." That suit was brought by the plaintiff treating the defendant as a licensee and so it could not be termed as a suit filed on any of the grounds mentioned in Section 3 (1) of the old Act. 8. Now coming to the merits of the case, the first thing is that clause (c) of Sub-sec. 8. Now coming to the merits of the case, the first thing is that clause (c) of Sub-sec. (1) of Section 3 of the old Act provides for two different contingencies as the word "or cannot be read as and as was held by the Supreme Court in M.D. Shah v. B. Das, 1966 ALJ 1053. In that case the tenant after removing the partition wall between the two rooms converted them into a single big room and had also lowered the floor level of the rooms by about 1 feet excavating earth therefrom and putting up a new floor. This was held by the Supreme Court to be a material alteration within the meaning of Section 3 (1) (c). In the same way, a learned single Judge of this in M/s. Delhi Iron Syndicate v. Sidha Nath, 1965 AWR (HC) 211 held that the act of demolition of the partition wall amounts to construction within the meaning of Section 3 (1) (c) of old Act because in such process the existing wall had to be pulled down and that portion of the roof on which partition wall rested had to be mended and the floor space on which the partition stood had to be levelled. The cumulative work in puling down the partition wall did come within the meaning of the expression construction. Further-more, the result was that the former two rooms were converted into a single big room, and this was material alteration in the existing accommodation. 9. The case before us is a converse case in which two big rooms have been converted into four mall rooms by constructing partition walls in them and re placing of some windows by doors and also closing one of the doors. These constructions obviously changed the form of the structure. The premises were formerly containing two rooms which were big rooms while after the alteration they contained four rooms of small size. 10. The learned counsel for the respondent referred to some other decisions also which are S.B. Mathur v. K.P. Gupta, 1961 AWR (HC) 162, Moinuddin v. Imam Uddin, AIR 1972 All 25 , and Dr. J.G. Gupta v. Bodh Mal, 1969 ALJ 477. 11. The facts of each case were materially different from the facts of the present case. 10. The learned counsel for the respondent referred to some other decisions also which are S.B. Mathur v. K.P. Gupta, 1961 AWR (HC) 162, Moinuddin v. Imam Uddin, AIR 1972 All 25 , and Dr. J.G. Gupta v. Bodh Mal, 1969 ALJ 477. 11. The facts of each case were materially different from the facts of the present case. In S. B. Mathur v. K. P. Gupta, 1961 AWR (HC) 162 the constructions complained of did not materially change the form of the accommodation and it was, therefore, held that the tenant was not liable to ejectment under Section 3 (1) (c) of the old Act. In Dr. J.G. Gupta v. Bodh Mal, 1969 ALJ 477, the constructions complained of consisted of a new bath room and a new kitchen being added to the accommodation. These new constructions were however separate from the structure of the house and they covered about one-third portion of the court-yard. They had no foundation. They were built of pucca bricks and plastered with cement. The tenant had used the site of a shed for giving support to the roof of one of the room;. The accommodation that had been let out had no separate bath room. It had a separate kitchen but it appeared that it could not be conveniently used. On these facts it was held that the new bath room and the new kitchen were not constructions which materially altered the accommodation. Perhaps in view of this ruing the learned Munsif already excluded the bath room built on the Chabutra and the hand-pipe fixed in the court-yard from being any material alterations. 12. In Moinuddin v. Imam Uddin, AIR 1972 All 25 a room with five doors which had no shutters on them had been let out. The tenant closed four doors by bricks and fitted the fifth door with shutters, obviously to make the accommodation wind-proof and waterproof. These changes were not held to be material alterations within the meaning of Section 3 (1) (c). 13. The tenant closed four doors by bricks and fitted the fifth door with shutters, obviously to make the accommodation wind-proof and waterproof. These changes were not held to be material alterations within the meaning of Section 3 (1) (c). 13. In my opinion, on the facts or the present case the conversion of two big rooms into four small rooms by constructing partition walls and the replacement of some windows by doors as well as closing of one of the doors taken together materially altered the form of the accommodation and they amount to material alteration of the accommodation within the meaning of Section 3(1) (c). The decree passed by the lower appellate court dismissing the suit for ejectment cannot, therefore, be sustained. The appeal is allowed. The judgment and the decree passed by the lower appellate court are set a side and the decree passed by the trial court is restored with costs throughout. The defendant-respondent is allowed three months time to vacate, failing which the plaintiff shall be entitled to execute his decree.