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1986 DIGILAW 629 (ALL)

Yashpal Gupta v. Third Additional District Judge, Moradabad

1986-08-26

S.D.AGARWALA

body1986
JUDGMENT S.D. Agarwal, J. - This is a petition under Article 226 of the Constitution of India arising out of proceedings under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. 2. Babu Ram and two others filed a suit No. 399 of 1978 in the Court of Munsif, Sambhal, Moradabad for ejectment of the respondent No. 3, Jagdish Saran, and for recovery of Rs. 108.22 P. as arrears of rent and damages for use and occupation. This suit was decreed by the Munsif, Sambhal, acting as Judge, Small Causes Court, by judgment dated 27th April, 1977. Aggrieved by the said decision a revision was filed. The revision came up for hearing before the VIIth Additional District Judge, Moradabad, who by his judgment dated 11th February, 1981 allowed the revision in part. The effect of the judgment of the revisional Court was that the decree for ejectment was set aside. The petitioners being aggrieved by the judgment dated 11th February, 1981, have challenged the same by means of the present petition. 3. I have heard the learned counsel for the parties, learned counsel for the petitioner has contended that the tenant, respondent No. 3 has made construction in the property let out to him without the permission of the landlord and, as such he was liable to be evicted under the provisions of Section 20(2)(c) of the Act and the view, to the contrary, taken by the revisional Court is manifestly erroneous. 4. Section 20(2)(c) of U.P. Act No. 13 of 1972 is quoted below : "20(2)(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it." Under Clause (c), quoted above, the ground of eviction can be if a construction has made in the building which is likely to diminish its value or utility or to disfigure it and also if a structural alteration in the building is made which is likely to diminish its value or utility or to disfigure it. When a construction is made or a structural alteration is made by the tenant, in both these cases it should have the effect of diminishing the value of the building or utility or it should amount to disfiguring the building. Unless either of these alternatives is established, the tenant is not liable for eviction. 5. In the instant case, the only construction, which has been found to have been made by the tenant, is opening of a door in a wall there by connecting the house in dispute to the house adjacent or it by removing a few bricks of the wall of the house in dispute. The argument of the learned counsel is that by opening the door, the value and utility of the house has been diminished. 6. The trial Court was of the view that by opening of a door, the privacy and safety of the house has been deteriorated and, as such, it has diminished its value and utility. In my opinion, that view is manifestly erroneous. By opening a door connecting the house adjacent, it cannot possibly diminish the value of the house nor diminish its utility. It may, on the other hand, enhance the value and utility, as it would enable a person living in the house to contact the person living in the adjacent house. In any case, even if the landlord does not want that door to exist, the same can easily be closed by putting some bricks. In either event, it cannot possibly amount to making a construction which will have the effect of diminishing the value of the house or affecting the utility in any manner whatsoever. The view taken by the revisional Court, therefore, cannot be said to be erroneous. 7. In Sardar Ratan Singh v. Khudavand Hayyul Qayyum, 1979 ACR 14, Hon'ble J.M.L. Sinha, J. (as he then was) had an occasion to consider whether opening door would amount to material alteration within meaning of 1947 Act. After analysing various decisions it was held by Hon'ble J.M.L. Sinha, J. that creating an opening on the eastern side of the wall could not possibly alter the nature and shape of the accommodation nor that opening can said to be inconsistent with the purpose for which the accommodation had been let out. After analysing various decisions it was held by Hon'ble J.M.L. Sinha, J. that creating an opening on the eastern side of the wall could not possibly alter the nature and shape of the accommodation nor that opening can said to be inconsistent with the purpose for which the accommodation had been let out. It was further observed that the premises would not be affected as the door could be closed at any time. I fully agree with the decision given by Hon'ble J.L.M. Sinha, J. in the case of Sardar Ratan Singh, (supra). 8. In view of the above, I am of the opinion that the contention raised by the learned counsel for the petitioner lacks substance. Since the construction made by the respondent tenant does not in any manner diminish the value or utility of the premises in question, the decree for ejectment could not have been passed against him. 9. In the result, the petition fails and is accordingly dismissed. The parties are directed to bear their own costs.