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2003 DIGILAW 1580 (PNJ)

Gurbachan Singh v. Bahadur Singh

2003-11-19

V.K.BALI

body2003
Judgment V.K.Bali, J. 1. Even though, it is a judgment of reversal that has been impugned in the present revision petition, there does not appear to be any material illegality or impropriety in the order passed by learned Appellate Authority dated 8.4.1986 upsetting the order passed by learned Rent Controller, dated 7.12.1985. 2. Petitioner-landowners sought eviction of the respondent-tenant on the ground of change of user, non-payment of rent and materially impairing the value and utility of demised premises. They succeeded before learned Rent Controller on the grounds of non-payment of rent and materially impairment of the demised premises. Constrained, respondent-tenant herein filed appeal, which has since been allowed by learned Appellate Authority vide order dated 8.4.1986. It is this order of learned Appellate Authority, as mentioned above, which has been challenged in the present revision petition. 3. Mr. S.C. Kapoor, learned Senior counsel, who appears on behalf of the petitioners, without touching the findings recorded by learned Appellate Authority on the ground pertaining to non-payment of rent, has only urged that, in the facts and circumstances of this case, it has to be held that respondent-tenant had, indeed, impaired value and utility of the demised premises by carrying out material alterations and, thus, on that count, his eviction has to be ordered. 4. I have heard learned counsel representing the parties and with their assistance, examined the records of this case. It is only the findings recorded by learned Appellate Authority in paragraphs 15 and 16 of order dated 8.4.1986 that have seriously been challenged by Mr. Kapoor during the course of arguments. Same read thus:- "15. As regard the question whether the tenant had impaired the value and utility of the building by making material alterations, the finding of the Rent Controller was that the tenant did impair the value and utility of the building. In para 7(c) of the petition, the material alterations made were that holes had been dug in the floor structure of a substantial nature had been raised in the shop, that an opening had been made above the door in the walls, that a hole in the roof of the building had been made and a pipe had been fixed putting additional weight on the building, the back wall and floors had been damaged. A bank (dye) had been fixed in the open space in front of the shop. A bank (dye) had been fixed in the open space in front of the shop. These acts had impaired the value and utility of the building. It was stated by the tenant that he had not made any harmful act of waste or damage to the building and that the shop was being used in the best manner for running his business. 16. It is admitted by Bahadur Singh that he has fixed a pipe in the front wall 4 above the level by inserting a wooden gitti in the wall. The pipe is fitted in this gitti on one side and in the hook already fixed in the RCC roof so as to fix a ceiling fan at proper place by fixing a wooden gitti in the wall on one side and by placing a pipe so as to fix a ceiling fan, the tenant cannot be said to have either done any damage to the wall or any alteration in the building much less material. He has denied having made any hole in the roof. It was categorically stated by him that he had not made any other additions or alterations. No suggestion was put to the tenant that he had either fitted a bank outside the shop or had raised a structure inside the shop or had made holes in the walls or floor. It is no doubt admitted by PW1 Kaka Singh that a stand had been fitted in the shop by Bahadur Singh and its steel legs have been fixed in the floor with cement. However, it is stated by him that no hole had been made in the wall or roof. It is also admitted by him that a bank had been fixed by Bahadur Singh outside the shop. It has already been held in the earlier part of this judgment that Bahadur Singh had taken the premises on rent for running the business of bring material, steel pipes and sanitary fittings. To make the best use of the shop, he has made a steel stand inside the shop with its steel legs fixed in plaster in the floor. It is also proved that the cement floor of the shop had several small pits and damaged to the cement plaster. To make the best use of the shop, he has made a steel stand inside the shop with its steel legs fixed in plaster in the floor. It is also proved that the cement floor of the shop had several small pits and damaged to the cement plaster. This damage cannot be said to be the result of normal wear and tear of the premises in which sale of boring material, steel pipes and other sanitary goods is being made. Setting up of a stand without causing any damage to the floor is also an act which is essential for the enjoyment of the tenancy in the property and it can be removed without any damage to it. No structural alterations in the building had been proved. Temporary fixtures of a bank outside the demised premises in the open space of the Municipal Committee is not and cannot amount to an act so as to impair the value and utility of the building. The landlords had failed to prove that any damage has been caused to the building which had recently been constructed now before it was let out to Bahadur Singh in the year 1977. Finding of the Rent Controller on this issue is also reversed." 5. In his endeavor to show that the findings recorded in paragraphs 15 and 16 by learned Appellate Authority, as reproduced above, cannot sustain, Mr. Kapoor relies upon the findings recorded on the issue by learned Rent Controller. Findings recorded by learned Rent Controller run thus:- "However, it has been admitted by the respondent in his statement recorded in court on 4.6.83, as well as by his only witness, namely, RW1 Kaka Singh, that the respondent had dug big holes in the walls and have created pits in the floors, in order to carry out the business of bores and sanitary fittings, and have also created apertures. The disputed premises were rented out to the respondent originally for the purposes of a godown and for storing Bann and not for running business of sanitary fittings. The disputed premises were rented out to the respondent originally for the purposes of a godown and for storing Bann and not for running business of sanitary fittings. The respondent in order to run his business did all the needed acts, which necessitated him for carrying out his business, and even installed a stand in front of his shop by dismantling the plasters of the floors without the consent of the landlord and, therefore, the respondent has committed such acts which have impaired the value and utility of the premises in dispute and he has also used the premises for a purpose other than for which the same were rented out to him. It has been observed in Jagmander Singh and Anr. v. Hari Kishan, Sushil Kumar, 1981(1) R.C.R. 489 that in a case where a tenant constructs a structure on an open space in front of a shop but the said open space even though did not belong to landlord, even than it was observed that the said structure impaired the utility of the shop. In the present case also the respondent has not only affixed appertures but had also dug big holes in the walls and have created pits on the floors of his shop & therefore, I have no hesitation in holding that the respondent has used the premises for the purpose other than for which the same were rented out to him and has thus materially impaired the value and utility thereof and accordingly both these issues are decided against the respondent." 6. From the discussion made by learned Rent Controller and the Appellate Authority on the crucial issue, as mentioned above, it is apparent that respondent-tenant had taken the demised premises, which is admittedly a shop for business purposes. A firm finding of fact has been recorded that respondent-tenant had taken the premises on rent for running the business of boring material, steel pipes and sanitary fittings. To make the best use of the shop for the purpose of carrying out the aforesaid business, respondent-tenant has made a steel stand inside the shop with its steel legs fixed in plaster in the floor. Naturally, holes had to be made so as to fix table. He has also put some pipes in the wall so as to fix a ceiling fan. Naturally, holes had to be made so as to fix table. He has also put some pipes in the wall so as to fix a ceiling fan. The mere fact that four holes were made on the floor to fit a table and some holes were made so as to put pipes for fixing a ceiling fan, in considered view of this Court, does not impair value and utility of the demised premises, thus, giving a cause of complaint to seek eviction of respondent-tenant on the grounds, as mentioned above. Mr. Kapoor however, relies upon a judgment of Honble Supreme Court in Vipin Kumar v. Roshan Lal Anand and Ors. 1993 Haryana Rent Reporter 341 wherein, making of a wall in the varendah and opening of the door was held to be such alteration which would have materially impaired the value of the demised premises. The facts in the present case have no parity with the facts, which were available in Vipin Kumars case (supra). Making of a wall in the varendah by which, the varendah itself shall be covered and given the shape of a room would certainly impair the value and utility of the premises. Present is not the case where any permanent structure might have been made in the shop let out to the respondent. As mentioned above, only holes were made in the floor so as to fit the table or for that matter holes might have also been made so as to put steel pipes in order to fix a ceiling fan. Mr. Kapoor also relies upon yet another judgment of Honble Supreme Court in Gurbachan Singh and Ors. v. Shivalak Rubber Industries and Ors. (1996-2) 113 P.L.R. 694 to contend that the material impairment has to be seen from the view point of the landlord. In the case aforesaid, the tenant had constructed a lintel roof over all the eight shops, doors of five shops were removed converting them into sheds, store and kotharies, existing doors were closed and new doors and windows were opened and quite new shape was given to the building without landlords permission. It is in the context of there facts and circumstances that some observations with regard to view point of landlord were made. It is in the context of there facts and circumstances that some observations with regard to view point of landlord were made. Judgment of Honble Supreme Court as referred to above, in considered view of this Court, cannot be applied in the facts and circumstances of the present case. 7. Finding no merit in this revision petition, same is dismissed, leaving however, the parties to bear their own costs.