S. K. Banerji v. Surendra Narain Mishra — 1989 DIGILAW 848 (ALL)

ORDER A.N. Dikshita, J. - This revision under Section 25 of the Small Causes Court Act has been preferred by the applicant-tenant against the judgment and order dated 4-1-1989 passed by Shri S. C. Tiwari, Vth Additional District Judge, Allahabad, decreeing Suit No. 30 of 1985 titled as Surendra Narain Misra v. S.K. Banerjee. 2. Facts in detail, at the cost of brevity, are that the opposite party filed a suit for the (ejectment and recovery of arrears of rent etc. against the applicant alleging that the applicant had committed default in the payment of rent; and that the applicant had made unauthorised constructions and that the applicant is guilty of converting the tenanted accommodation for user at variance for which it was let out to him thus violating the provisions as enshrined in Section 20, subsection (2)(a), (c) and (d) of U.P. Act 13 of 1972. 3. Admittedly the opposite party is the owner-landlord of premises No. 5 Subhash Nagar Mumfordganj, Allahabad, which was purchased by him for a sum of Rs. 50,000/-by a registered sale deed dated 16-1-1981. The opposite party was a tenant at the rate of Rs. 2010 per month besides water tax etc. of the said premises. 4. It was alleged that the applicant -without the permission in writing of the opposite party had made or permitted tip he made unauthorised constructions. It has been further alleged that the applicant fell in arrears of rent with effect from 1-1-1984 to 31-5-1985 and did not pay it despite demand. It was also alleged that the applicant had started a school which is inconsistent with such use for which purpose the applicant was admitted to tenancy. On account of these violations a composite notice of demand dated 27-6-1985 was served on the applicant terminating his tenancy and calling upon him to pay a sum of Rs. 4,218.20 being the arrears of rent and damages for use and occupation besides water lax and mesne profits at the rate of Rs. 200/- per month from the date of the suit till the eviction of the tenant. As the applicant failed to comply with the requirements of the notice it suit as stated above was filed by the opposite party. 5. The applicant filed it written statement and denied the averments as contained in the plaint. It was reiterated by the applicant that his tenancy is intact and is continuing. As the applicant failed to comply with the requirements of the notice it suit as stated above was filed by the opposite party. 5. The applicant filed it written statement and denied the averments as contained in the plaint. It was reiterated by the applicant that his tenancy is intact and is continuing. It was contended that the suit property earlier belonged to one Shri Direndra Chandra Das who bequeathed the property to Sri Shardcshwari Ashram which is a religious and chartitable trust bya registered will dated 21-0-1961. One Shri T.C. Ghosh was looking after the property and collecting rent. The suit premises was let out to the applicant sometime in the year 1967 by Sri T. C. Ghosh. Initially the rent of the premises in suit was Rs. 125/- in the year 1966-67 but was later enhanced to Rs. 200/- per month. It was very vociferously asserted by the applicant that no default has been committed by him but on the refusal of the opposite party to accept the rent it was sent by money order. It was categorically asserted by the applicant that at the time when the premises was let out to him no specific purpose for its user was agreed upon between the applicant and T. C. Ghosh. It was further asserted by the applicant that for a convenient and beneficial user of the tenanted portion and due to paucity of space it temporary tin shed was laid on the roof with the permission of T. C. Ghosh. However, the applicant categorically denied that any permanent construction had been erected on the roof. It was further alleged by the applicant that his wife is running a small nursery school in the name and style of Gyan Deepika Kindergarten School in a fractional part of the verandah and the part of the tin shed since the year 1969 with the knowledge and consent of the Trust, the powers, (sic) and T. C. Ghosh. It was categorically repudiated that any permanent construction had been made on the roof. 6. The applicant further alleged that the opposite party by hook or by crook was trying to throw the applicant on the road to brave the fury of rain and sun and as such filed an application under Section 21 of Act 13 of 1972. It was categorically repudiated that any permanent construction had been made on the roof. 6. The applicant further alleged that the opposite party by hook or by crook was trying to throw the applicant on the road to brave the fury of rain and sun and as such filed an application under Section 21 of Act 13 of 1972. This application under Section 21 for release of the premises in favour of the opposite party was dismissed by the Prescribed Authority but in appeal a part of the tenanted accommodation was released in favour of the opposite party. 7. As regards the purchase of the premises in suit by the opposite party on 16-1-1981 the sale deed in favour of the opposite party is being challenged by a separate suit No. 26 of 1985 and which is pending in the civil court at Allahabad. 8. The applicant asserted that the notice is illegal and as such its requirements could not be complied with. 9. Seized with this controversy the trial court framed the following points for determination : 1. Whether the plaintiff has committed any default in making payment of rent ? If so, its effect ? 2. Whether the tenant made unauthorised constructions as alleged in paragraph 5 of the plaint ? If so, its effect ? 3. Whether the tenant has started running a school in the disputed premises, for a purpose different from the original terms of letting as alleged in paragraph 4 of the plaint? 4. Whether the disputed premises were let out for residential purposes only by the previous owner ? 5. Whether the notice is illegal ? 6. Relief. 10. In support of his case opposite party examined one Arun Vikas Sen as PW 1 and himself as PW 2. Documents were also filed in support of the case. 11. The applicant to buttress the defence version had examined himself and had filed papers in support of his defence. 12. While deciding point No. 1 the trial court came to the conclusion that the' applicant has not committed default within the meaning of Section 20(2)(a) in payment of rent and decided the point in negative against the opposite party. 13. The applicant to buttress the defence version had examined himself and had filed papers in support of his defence. 12. While deciding point No. 1 the trial court came to the conclusion that the' applicant has not committed default within the meaning of Section 20(2)(a) in payment of rent and decided the point in negative against the opposite party. 13. As regards point No. 2 regarding the making of the unauthorised construction the trial court found violation of the provisions of Section 20(2)(c) of the Act and found that the constructions had been made by the applicant without the permission in writing of the landlord so as to diminish its value or utility or to disfigure it. The issue was thus decided in' affirmative and against the applicant and is favour of the opposite party. 14. Point Nos. 3 and 4 were taken up together and it was found by the trial court that the provisions as contained in Section 20(2)(d) of the Act had been breached and it was found that the applicant has used it for the purpose other than the purpose for which he was admitted to the tenancy of the building. Both these points were decided in affirmative in favour of the opposite party and against the applicant. 15. As regards point No. 5 regarding the validity and illegality of the notice the trial court found that on a perusal of the notice there is nothing to substantiate the allegation that the notice is invalid or illegal and does not legally terminate the tenancy. The point was thus decided in favour of the opposite party. 16. As regards point No. 6, the trial court found that in view of its decision on point Nos. 3, 4 and 5 the plaintiff is entitled to the decree as claimed and no reason is found to protect the applicant from eviction. However, the rent so deposited by the applicant was allowed to be withdrawn by the opposite party. 17. The suit was accordingly decreed for eviction of the applicant from the suit portion but he was granted two months time to vacate the promises failing which it was to be done by the court at the expense of the applicant. A decree for Rs. 4,218.0 besides mesne profits at the rate of Rs. 200/- till the date of eviction on payment of additional court fee was also passed. A decree for Rs. 4,218.0 besides mesne profits at the rate of Rs. 200/- till the date of eviction on payment of additional court fee was also passed. However, the opposite party was permitted to withdraw the amount so deposited. 18. Feeling aggrieved the applicant has filed the instant revision. 19. Heard learned counsel for the parties. 20. Learned counsel for the applicant Shri K. N. Trippthi and learned counsel for the opposite party Shri Ravi Kant have advanced marathon submissions to fortify their respective claims - one assailing the decree alleging that it is not according to law while the other trying to reap the fruits of the decree. However the bitterness may be lurking in between the parties, it was pleasant note that neither acrimony nor bitterness was displayed while advancing the submissions and both the counsel were trying to assist the court with flash of advocacy at their command. It is on such occasions that the courts are confronted with a situation as to extract the real intent of the order as to whether it is according to law or not. Anyhow, the assistance so rendered by the learned counsel for the parties deserves applause. 21. Presently this court in seized with the matter only with regard to the violation to Section 20(2)(c) and (d) of the Act for the violation of which the decree for eviction has been passed by the trial court. 22. It would be appropriate firstly to examine as to whether there is a breach of Section 20(2)(c) of Act 13 of 1972. Admittedly the applicant was inducted as a tenant some time in the year 1966-67. At that time Act 3 of 1947 (U.P. (Temporary) Control of Rent and Eviction Act, 1947) was in vogue. Corresponding to Section 20(2)(c) of Act 13 of 1972 the old Act enjoined as under :-- Section 3(1): ....... ....... (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 present suit has been filed sometime in the year (illegible). To appreciate the present provision as contained in Section 20(2)(c), Clause (c) of Section 20(2) is reproduced as below : Section 20(2) ..... ..... To appreciate the present provision as contained in Section 20(2)(c), Clause (c) of Section 20(2) is reproduced as below : Section 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. Learned counsel for the applicant has very strenuously submitted that the opposite party has failed to disclose the date when the cause of action accrued to the opposite party. 23. Paragraph 5 of the plaint runs as follows : "5. That at the time of letting of the disputed building to the defendant by the previous owner only the ground floor thereof was constructed according to the sanctioned plan and there was no construction on the open chhat of the upper portion of the ground floor at all. The defendant has, however. made illegal and wrongful permanent constructions on the upper portion of chhat of the aforesaid building without the permission of the plaintiff or the previous owner thereof in writing which amounts to structural alteration of the building in dispute and the said illegal constructions have diminished the value and the utility thereof and the defendant has thus rendered himself liable for eviction even on this ground. The said facts came to the knowledge of the plaintiff on a perusal of the report of the advocate commissioner submitted in proceedings under Section 21 of the U.P. Act XIII of 1972 before the Prescribed Authority (Shri Amar Singh) Surendra Narain Mishra Versus S.K. Banerjee) decision on 22-4-1985." It has submitted that neither month nor date of the alleged illegal and wrongful construction of a wrongful nature on the upper portion of the roof has been set out in the said paragraph though it is alleged that such constructions have been effected neither with the permission of the opposite party nor of the previous owner in writing. It has thus been submitted that as the plaint does not disclose the cause of action as postulated it was not liable to be entertained. Much stress has been laid on Order VII, Rule 1(e) and (f) of the Code of Civil Procedure. It has thus been submitted that as the plaint does not disclose the cause of action as postulated it was not liable to be entertained. Much stress has been laid on Order VII, Rule 1(e) and (f) of the Code of Civil Procedure. Order VII, Rule 1(e) provides that the plaint shall contain the particulars regarding the facts constituting the cause of action and when it arose while under Order VII, Rule 1(f) the plaint should contain the facts showing that the Court has jurisdiction. A perusal of the plaint would clearly show that no date has been mentioned in the plaint as to when the suit constructions were effected thus constituting the cause of action to the opposite party to maintain the suit. The submission thus advanced on behalf of the applicant is that for the non-compliance of Order VII, Rule I(e) and (f) of the Code of Civil Procedure the plaint, as enjoined in Order VII. Rule 11, was liable to be rejected as is to be. found in paragraph (e) of Order VII, Rule 11 which empowers the court to reject the plaint where it does not disclose a cause of action. I find merit in this, submission. 24. Learned counsel for the applicant has further submitted that a perusal of paragraph 4 of the plaint reveals that emphasis has been supplied to the permission in writing but it does not include the existence of an oral permission. It has thus been submitted that it was incumbent on the applicant to have categorically set out that no permission as enjoined under law was ever obtained. The applicant has crystally asserted that the tin shed on the roof was laid sometime in the year 1969. At that time no objection whatsoever was raised by the owner (the Ashram or T. C. Ghosh), who was managing the suit premises on behalf of the Ashram. It would thus be abundantly clear that even if no permission either oral or in writing was obtained at the time of the raising of the tin shed the landlord had waived objection to such raising of constructions which are presently dubbed to be illegal and in any case has acquised into it. It would thus be abundantly clear that even if no permission either oral or in writing was obtained at the time of the raising of the tin shed the landlord had waived objection to such raising of constructions which are presently dubbed to be illegal and in any case has acquised into it. The old Act, it has been submitted by Shri K. N. Tripathi, postulates that the alleged construction shall be in the form that it has materially altered the accommodation or is likely substantially to diminish its value. However, the new Act (Act 13 of 1972) has provided that such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it. The instant suit, it is submitted, has been filed for the alleged violation of Section 20(2)(c) of Act 13 of 1972. It has been asserted with persuasion that in any case it was incumbent upon the opposite party to have disclosed the date of permission. 25. It is again not disputed, as has been shown by the learned counsel for the applicant, that a general power of attorney paper No. 91-A, was executed by the said Ashram in favour of T. C. Ghosh. The constructions which are alleged to have been raised were in the year 1969 when T. C. Ghosh was looking after the management of the property and collecting rent on behalf of the trust. This power of attorney which has been executed by the Ashram in favour of T. C. Ghosh, clearly reveals that all the powers have been conferred on T. C. Ghosh giving him the right to accord permission etc. Paper No. 35 is the original in Bengali script and its Hindi translation is paper No. 38 which has been filed by the defendant. It is paper No. 35 (relied upon by the applicant) is the letter of the Secretary of the Trust to T. C. Ghosh. It provides power to T. C. Ghosh to permit additions or alterations. In any case if any constructions were made sometime in the year 1969 paper No. 38 ratifies the construction and the permission which may not be earlier available was subsequently accorded. Moreover, there is nothing on the record to show that T. C. Ghosh ever objected to the raising of the tin shed. In any case if any constructions were made sometime in the year 1969 paper No. 38 ratifies the construction and the permission which may not be earlier available was subsequently accorded. Moreover, there is nothing on the record to show that T. C. Ghosh ever objected to the raising of the tin shed. The delinquency if any, on the part of the applicant in raising the tin shed was waived and the then owner and T. C. Ghosh had acquiesced into the same. 26. Learned counsel for the applicant then submitted that the trial court has misread the document, i.e., the power of attorney executed by the Ashram in favour of T. C. Ghosh. It has been strenuously submitted that T. C. Ghosh had the authority to grant such permission. It has thus been submitted that the trial court has misread the general power of attroney, a very material-document which would have completely exploded the opposite - party's case is thus apparent that T. C. Ghosh had no authority has been wrongly accepted by the trial court. 27. It has then been submitted that even if the tin shed had been put on the roof, it is a temporary construction and would not fold in its ambit the provisions of Section 20(2)(c) of the Act. It is not a permanent construction. For a beneficial user of the tenanted accommodation the tin shed has been put. The paramount consideration while examining this fact is as to whether the constructions are of a permanent nature or a temporary one. In determining the question of material alteration the relevant consideration for deciding this question is to find out the nature of the construction whether it is permanent or temporary. A construction made on it permanent basis would be deemed to he a permanent construction but a temporary construction would not ordinarily affect the form or structure of the building as it can be easily removed without any damage to the building. The tin shed which has been put can be removed without causing any damage to the demised premises. This point came up for consideration before the courts on various occasions. The tin shed which has been put can be removed without causing any damage to the demised premises. This point came up for consideration before the courts on various occasions. Catena of decisions have been cited at the bar to fortify their respective submissions but to resolve the controversy the Supreme Court in its celebrated judgment has dwelt upon this aspect in the case of Om Prakash v. Amar Singh, AIR 1987 SC 617 : 1987 All LJ 184. Hon'ble Mr. Justice K.N. Singh speaking for the bench has held (Para 6) : "In determining the question the Court must address itself to the nature, character of the construction and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose of 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 words "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 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 in spite 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 natural and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. The essential element which needs consideration is as to whether the constructions are substantial in natural and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S.B. Mathur v K.P. Gupta, 1961 All LJ 137 construction of temporary wall enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature, was held not to constitute material alteration of the accommodation. In Dr. J.G. Gupta v. Bodh Mal, 1969 All LJ 477 a Division Bench of the High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom did not constitute material alterations as the same were temporary and they could be removed without causing and damage to the accommodation. In Sita Ram Sharan v. Johri Mal, 1972 All LJ 301 : AIR 1972 All 317 a Full Bench held that construction which converted the tenanted premises into double storely structure, materially altered the accommodation. Another Division Bench of the High Court in Bldev v. Ram Khilawan, (1979) 5 All LR 44 held that a partition wall in a shop converting, the same into two portions for the convenient use of the same did not amount to-material, alteration. These decisions were rendered on the facts available on the record of those cases. In deciding this question the Court has to consider whether the constructions have been made with the consent of the landlord and if so, whether those constructions are of such substantial nature which make material alterations in the accommodation. The findings of the Court regarding constructions would be finding of fact, but the question whether the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles." 28. I am constrained to say that at the cost of brevity I am per force inclined to reproduce further the opinion expressed by the Supreme Court with celebrity. The Supreme Court further held in the case of Om Prakash (1987 All LJ 184) (supra) as follows (at Pp. I am constrained to say that at the cost of brevity I am per force inclined to reproduce further the opinion expressed by the Supreme Court with celebrity. The Supreme Court further held in the case of Om Prakash (1987 All LJ 184) (supra) as follows (at Pp. 188-189 of All LJ) :- "In the instant case the disputed constructions which the High Court has found to be "material alteration" consists of a partition wall of 6 feet height in a hall converting the same into two rooms and a tin shed marked by letters CDGH on the eastern, side on an open land adjacent to the accommodation. The trial Court held that the partition wall did not change the front or structure of the accommodation, it being temporary in nature, did not constitute material alterations in the accommodation. This finding of the trial court was not challenged by the landlord before the Civil Judge. But the High Court has held that the partition wall constituted "material alteration'. The finding recorded by the trial court and : the relevant evidence placed before us by the parties clearly show that the partition wall did not actually partition the hall converting the same permanently into two rooms. The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling instead; it was a temporary wall of 6 feet height converting the big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the building. The partition wall did not make any structural change of substantial character either in the form-or structure of the accommodation. The other disputed item relates to the construction of tin shed. The respondent alleged that the appellant had constructed a tin shed shown by letters ABCD in the site plan attached to the plaint in an unauthorised manner without obtaining his consent. All the three Courts have recorded concurrent finding that the tin shed shown by the letters ABCD consists.of two portions. One portion is shown by letters AGHB and the other shown by GHCD. All the three Courts have recorded concurrent finding that the tin shed shown by the letters ABCD consists.of two portions. One portion is shown by letters AGHB and the other shown by GHCD. The trial court as well as the first appellate court both have recorded findings that the portion of the tin shed shown by letters CDGH had been constructed by the appellant without the consent of the respondent landlords, but the rest of the tin shed shown by the letters ABGH had been constructed by the appellant after obtaining permission of the Cantonment Board and the erst-while landlord. The First Appeal Court held that the tin shed shown by letters CDGH did not constitute material alteration as the constructions were temporary in nature which would be removed at any time without causing any damage to the accommodation. The First Appeal Court held that the tin shed shown by letters CDGH did not constitute material alteration as the constructions were temporary in nature which would be removed at any time without causing any damage to the accommodation. The First Appeal Court further held that the basic-structure of the accommodation let out to the appellant was not affected at all by the disputed tin shed as it had been constructed on the open land adjoining the accommodation and it was enclosed by Bamboo structure, and Kuchha wall which did not effect any change in the form or the structure of the tenanted building. In second appeal the High Court held that since two sides of the tin shed were resting on the pacca wall it constituted a material alteration in the accommodation. We have been taken through the Commissioner's report filed before the Lower Court and on perusal of the same we find that the wall which had been constructed for the tin shed was kuchha made of bricks and mud and the bamboo tatters were used for enclosing it. The findings recorded by the First Appeal Court and the Commissioner's report make it evident that the tin shed was constructed on an open land, it was temporary in nature and it could be removed without causing any damage to the building. The findings recorded by the First Appeal Court and the Commissioner's report make it evident that the tin shed was constructed on an open land, it was temporary in nature and it could be removed without causing any damage to the building. One portion of the tin shed was already in existence on the open land adjacent to the accommodation, the appellant merely extended that tin shed which did not make any substantial change either in the form or structure of the building. There is no material on record to sustain the finding of the High Court that the appellant had constructed pacca walls on three sides of the tin shed; instead the Commissioner's report is contrary to it. In the circumstances the construction of tin shed could not be held to have materially altered the accommodation." 29. Learned counsel for the applicant after relying on the case of Om Prakash (1987 All LJ 184) (SC) (supra) has submitted that the tin shed is of a temporary character. The court below without applying its mind has come to the conclusion that it has certainly disfigured the building and it is also likely to diminish its value or utility as a consequence thereof has thus attracted the provisions of Section 20 (2)(e) of the Act. The trial court has recorded a finding that the temporary tin shed would certainly disfigure the building and is also likely to diminish its value or utility as a consequence thereof. Such conclusions are apparently perverse. 30. Learned counsel for the opposite party has placed reliance on the case of Sohan Lal v. Ram Prakash, (1988) 2 All Rent Cas 243 (SC). However, this case does not help the opposite party as it was found in this case that the constructions are of a permanent nature. In the instant case the tin shed has been rested on the wall and bamboo pillars. No foundation was dug. The bricks, if any inthe pillars,can be removed without damaging the building and the tin shed resting on it can be shifted. In the case of Santosh Kumar Mittal v. IInd Addl. District Judge, Aligarh, (1983) 2 All Rent Cas 210 Hon'ble, Mr. No foundation was dug. The bricks, if any inthe pillars,can be removed without damaging the building and the tin shed resting on it can be shifted. In the case of Santosh Kumar Mittal v. IInd Addl. District Judge, Aligarh, (1983) 2 All Rent Cas 210 Hon'ble, Mr. Justice N.D. Ojha, as he then was, has observed as under :- "Coming to the nature of the construction referred to above, as is apparent from the impugned orders, the wooden planks have not been embedded either in the walls or in the roof of shops. What has been done is that small wooden Gatties, such as are used for getting electric wiring, have been fixed on the walls and on wooden frames ply wood and sunmica have been affixed and they have been made to hang with the help of hooks already existing in the ceiling. This was apparently done in order to give the shop a face-lift and appearance of a show-room. Keeping in view the nature of the construction I am in agreement with the authorities below that the same cannot be held to have caused any material alteration or damage to the property such as may render respondents 3 to 5 liable to be evicted from the shops in question. ....... This haudi or water tank has been constructed by digging a small pit and its dimensions are 11/2 x 11/2 x 11/2 only. In connection with the making of ornaments gold and silver have to be heated and in order to cool them water is needed and this haudi seem to have been constructed for the same purpose...... In my opinion the small Haudi referred to above does not amount to any material alteration. It can be filled up without only difficulty as and when needed. The other construction on which emphasis has been placed by counsel for the petitioners is fixing of glass panes in a wooden panel after removing some bricks from the back portion of an almirah. In his deposition Santosh Kumar Mittal, one of the plaintiffs, had, as is apparent from a copy of the de position filed as Annexure 5 to the writ petition, stated that the dimension of the almirah was stated to be 4.............. A similar question came up for consideration before this court in Sardar Ratan Singh v. Khudavand Hayyul Qayyum, 1978 All LJ 1265. A similar question came up for consideration before this court in Sardar Ratan Singh v. Khudavand Hayyul Qayyum, 1978 All LJ 1265. There also bricks from the back of an almirah were taken out in order to create an opening. It was held that the opening could be closed at any time without pre-judicially affecting the premises and it could not materially alter the form of the premises in occupation of the tenant. It was further held that creating of an opening could not alter the nature and shape Of the accommodation nor could the opening be inconsistent with the purpose for which the accommodation was taken on rent irrespective of the fact whether the accommodation was of a residential nature or it shop." I respectfully agree and how to the observations made by His Lordship in the aforesaid case. 31. It is thus clear that the findings of the trial court on points Nos. 3 and 4 decided simultaneously smacks of non-application of mind as well as misreading of evidence. They are too vague in nature as regards the diminishing the value of the building in question. The trial court has failed to justify its conclusion as to how it has disfigured the building. Moreover such an abrupt conclusion that it affected the utility of the building is wholly in comprehensible and is bereft of common sense. 32. Learned counsel for the opposite party had laid emphasis on the fact that the tin shed is it pucca construction and has relied upon various decisions but in view of the judgment in the case of Om Prakash (1987. All LJ 184) (SC) (supra) it cannot be held that the construction of the impugned tin shed is of a permanent nature. 33. In this context it should be observed that for the beneficial user of the tenanted accommodation persons in profession like doctors, lawyers and other businessmen, in order to keep their belongings put wooden structure in the form of almirahs, showcases, medical appliances, embedded to the wall but liable to be removed without any damage. Even verandahs are enclosed with wooden structure to give it the shape of a room for the patients, clients and purchasers of mercantiles but that alone would not come within the ambit of Section 20(2)(c) of the Act. The intent in the raising of such constructions is to be extracted. Even verandahs are enclosed with wooden structure to give it the shape of a room for the patients, clients and purchasers of mercantiles but that alone would not come within the ambit of Section 20(2)(c) of the Act. The intent in the raising of such constructions is to be extracted. Mere putting shutters in the wall or in the verandah or putting a partition wall without digging the ground or enclosing verandahs with wooden planks would not constitute a permanent construction. Similarly closing of a window in order it keep books therein on the shelf would not constitute a construction to be of a permanent nature. Social environment and dearth of space in the present set up has to be looked into by the courts. Persons keep cars in the lawns and in order to provide cover so as to save the vehicle from rain and sun put a cover thereon by putting bamboo or iron angles but they are liable to be removed without any damage and would not as such amount to a permanent construction. Likewise a tenant may, for the purpose of beautifying the building may rise the height of the lawn and put flowers and pots but that too cannot be said to be infringing the provisions of Section 20(2)(c) the Act. If certain constructions or structural alterations are effected to beautify the building it cannot he alleged that it has diminished the value of the property or utility or has in any manner disfigured it. To satisfy these ingredients a heavy burden lies on the landlord. In the present case the opposite party has miserably failed to establish this aspect of the matter. 34. Learned counsel for the applicant has thus assailed that the trial court has erred in law in holding that the applicant without the consent in writing of the opposite party has used the building for some purpose other than the purpose for which he was admitted to tenancy. There is no dispute that for imparting tuition and for educating children the wife of the applicant is running a kindergarten school. Howsoever profitable it may be but the cause is a noble one and the literacy which is utterly wanting in this country is being given and incentive. There is no dispute that for imparting tuition and for educating children the wife of the applicant is running a kindergarten school. Howsoever profitable it may be but the cause is a noble one and the literacy which is utterly wanting in this country is being given and incentive. Learned counsel for the applicant has vehemently urged that no permission was required as postulated in Section 20(2)(d) of the Act as the accommodation is not used for a purpose other than the purpose for which it was let out. 35. In the case of Sant Ram v. Rajinder Lal, 1979 All Rent Cas 28 : AIR 1978 SC 1601 Hon'ble Mr. Justice V. R. Krishna Iyer, speaking for the Bench, has sacrosanctly refracted the plight of a tenant and of a poor man and the pathetic condition in which they are forced to live. It was observed (at Pp. 1602 1604 of AIR) : "A cobbler - the appellant - was the lessee of a portion of a shop in Ram Bazar, Simla, since 1963, on an annual rent of Rs. 300 (i.e. Rs. 25 per month) Ex. P1, the lease deed, disclosed no purpose; but inferentially it has been held by the High Court that the lease being of a shop the purpose must have been commercial. Possible; not necessarily sure. The actual life-situations and urban conditions of India, especially where poor tradesmen like cobblers, candle-stick makers, cycle repairers and tanduri bakers, takes out small spaces on rent, do not warrant an irresistible inference that if the lease is of shop the purpose of the lease must be commercial. It is common knowledge that in the small towns why, even in the big cities, - little men plying little crafts and possessing little resources take on lease little work places to trade and to live, the two being interlaced for the lower, larger bracket of Indian humanity. You struggle to make a small income and work late into the night from early in the morn and, during intervals; rest your bones in the same place, drawing down the shutters of the shop for a while. You struggle to make a small income and work late into the night from early in the morn and, during intervals; rest your bones in the same place, drawing down the shutters of the shop for a while. The primary purpose is to ply a petty trade, the secondary but necessary incident is to sleep in the same place since you can hardly afford anything but a pavement for the creature needs of cooking food, washing yourself, sleeping for a time and the like. The life style of the people shapes the profile of the law and not vice versa. Law, not being an abstraction but a pragmatic exercise, the-legal inference to be drawn from a lease deed is conditioned by the prevailing circumstances. The intention of parties from which we spell out the purpose of the lease is to be garnered from the social milieu. Thus viewed, it is difficult to hold, especially when the lease has not spelt it out precisely, that the purpose was exclusively commercial and incompatible with any residential use, even of a portion. It is impossible to hold that if a tenant who takes out petty premises for carrying, on a small trade also stays in the rear portion, cooks and eats, he so disastrously perverts the purpose of the lease. A different `purpose' in the context is not minor variations but majuscule in mode of enjoyment. This is not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. On the other hand, the common case is that cobbler continued to be cobbler and stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. A sense of proportion in social assessment is of the judicial essence." 36. With the above citation (situation) which confronted the Hon'ble Judges of the Supreme Court I find myself in complete peace and solace to adopt a human attitude. 37. In the case of Ganga Ram v. State of U.P., Hon'ble Mr. A sense of proportion in social assessment is of the judicial essence." 36. With the above citation (situation) which confronted the Hon'ble Judges of the Supreme Court I find myself in complete peace and solace to adopt a human attitude. 37. In the case of Ganga Ram v. State of U.P., Hon'ble Mr. Justice K. C. Agarwal, as he then was, has held that where the whole building is used for the purpose of residence the mere fact that there is a shop in a portion of a said house that would not convert the building into something different from a residential house. What is in fact required to be seen in such a case is the dominent purpose for which the house is being utilised. Mere user of a part of the residential house by a gold-smith for manufacturing gold ornaments or by a lawyer for his office and similarly by a doctor as his consulting room would not convert a residential house into a non- residential house so as to attract the mischief as engrained in S. 20(2)(d). 38. In the case of Smt. Ram Janki v. 1st Addl. District Judge, Banda, (1984) All Rent Cas 494, it was held by Hon'ble Mr. Justice N.D. Ojha, as he then was, that for deciding such a question the dominant purpose for which the accommodation in question is being used has to be looked into. In this case the accommodation was let out for residential purpose. The tenant opened a tea stall therein and started selling snacks also. However, the tenant continued to utilise the building mainly for residential purpose. It was thus held that the provisions of S. 20(2)(d) of Act 13 of 1972 will not be attracted in view of the dominant use of the accommodation which still remained to be residential. The case of Ram Prasad v. Rabindra Kumar Tewari, 1980 All Rent Cas 161, was followed where a tenant of a residential accommodation had in a portion set up a tea stall but considering the dominant use of the building for residence it was found that there was no change in the user of the building. The view in the case of Ram Prasad (supra) was approved by His Lordship in the case of Smt. Ram Janki (supra). 39. The view in the case of Ram Prasad (supra) was approved by His Lordship in the case of Smt. Ram Janki (supra). 39. In the case of Hari v. Wagf of Jalal Haji Abdul Kareem Sahib, (1984) All Rent Cas 247 : AIR 1984 SC 150 , the Supreme Court held that in a non-residential accommodation where the tenant and his servants casually used to stay in the additional space of that building it would not tantamount to diversion of the user for the purpose for which it was let out. In the present case it is bejewelling on the record that the applicant is using the entire accommodation for his residential needs. 40. From the above discussions it is crystal clear that the trial court has not applied its mind to the basic issues and there is lack of evidence. There is further misreading of evidence. 41. Learned counsel for the opposite party has lastly submitted ,that the scope of interference under S. 25 of the Small Causes Court Act is limited and the findings recorded by the court below do not permit interference. I am unable to be pursuaded by this submission. The Supreme Court in the case of Om Prakash, (1987 All LJ 184).(supra) has held that the finding of a court on the question of construction would be finding of fact but the question whether the construction materially altered the accommodation is a mixed question of fact and law which should be determined on the application of correct principles. It is settled law that under S. 25 of the Small Cause Court Act the High Court would not interfere with the plain finding of fact arrived at by the court below. It also cannot reassess the value of the evidence and substitute its own conclusion on fact in spite of those reached by the court below, but if the court below has recorded a finding of fact by misreading the pleading of the parties or misreading of evidence on record or on application of mind or misinterpretation of law then such a finding would stand vitiated in the eye of law and we require an interference by the court in exercise of revising jurisdiction under S. 25 of the Small Causes Court Act. In the present case a temporary tin shed, as has been held by the Supreme Court in the case of Om Prakash (supra) would not come within the mischief of S. 20(2)(c) of the Act nor the running of the school under the tin shed in any way can be deemed to be an inconsistent user. This is a fit case where interference is called for. 42. Reliance is placed on the case of Kamla Prasad v. District Judge, Allahabad, (1985) 1 All Rent Cas 473, where it was held as under : "It could not be doubted that the power exercisable under S. 25 of the said Act is not for the reappraisal of the evidence. However, revisional court exercised the power validly or not will depend on the facts of each case. If it could be shown that the power was exercised in a case where the trial court arrived at a finding on the basis of inadmissible evidence or by misinterpreting a document or is perverse or it took consideration AIR 1987 All 56 . 2 irrelevant material on the record, then-it would be valid exercise of power." 43. Similar view was taken in the case of Jagdish Prasad v. Angoori Devi, AIR 1984 SC 1447 : 1984 All LJ 379. 44. In view of the above discussions the revision deserves to be allowed and the decree of the court below for the eviction of the applicant is liable to be set aside. 45. In the result the revision is partly allowed. The decree for the eviction of the applicant is hereby set aside. The decree for arrears of rent etc. is hereby affirmed. No order as to costs.