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2003 DIGILAW 162 (PNJ)

Ramesh Chand v. Jagdish

2003-01-29

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This civil revision is directed by the landlord against the order dated 6.1.1986 passed by the Appellate Authority, Faridabad, whereby he accepted the appeal and set aside the order of the Rent Controller dated 15.5.1985 vide which his petition for ejectment of the respondent from the demised premises was accepted and the respondent was directed to vacate it within a period of 60 days. 2. Briefly stated, the facts are that the respondent was a tenant under the petitioner at a monthly rent of Rs. 22/- plus house tax etc. in the shop consisting of two Khans and Chappar on the ground floor and having a Chaubara on the fist floor on the G.T. Road Hodal. 3. The petitioner filed an ejectment petition against the respondent on the grounds; that the respondent had failed to pay arrears of rent and house tax etc. with effect from 1.5.1981 till the date of filing the petition; and that the respondent had started tethering his buffalo inside the shop in dispute since November 1983 and further had constructed a manger (Khurli) inside the shop under the Chappar without his consent and thereby has diminished its value and utility. 4. The respondent contested the petition. He, however, admitted that there was relationship of landlord and tenant between them but denied the other allegations and stated that he had neither started tethering his buffalo inside the shop, nor he had constructed any manger inside the shop under the Chappar. On the other hand, he had been running a tea stall in the shop in question. 5. The arrears of rent etc. were tendered and there is no dispute about it. 6. Consequently, the following issues were framed:- 1. Whether the respondent is liable to be evicted from the demised premises on the grounds alleged in para No. 3 of the petition? OPP 2. Relief. 7. The parties adduced their evidence. The Rent Controller, Palwal, after hearing the learned counsel for the parties vide order dated 15.5.1985 accepted the petition on the ground that the respondent had diminished the value and utility of the demised shop by tethering his buffalo inside the shop and constructed a manger in front of the shop under the Chappar. 8. Aggrieved by the said order, the tenant filed an appeal which was accepted by the Appellate Authority Faridabad and the ejectment petition was dismissed. 9. 8. Aggrieved by the said order, the tenant filed an appeal which was accepted by the Appellate Authority Faridabad and the ejectment petition was dismissed. 9. Aggrieved by the said order, the landlord has filed the present revision petition. 10. I have heard Mr. Amit Jain, learned counsel for the petitioner, Mr. Mukul Aggarwal, learned counsel for the respondent and carefully gone through the file. 11. Counsel for the petitioner contended that the respondent had started using the shop for tethering his buffalo and thereby had impaired its value and utility. In order to appreciate the contention of the learned counsel, it is necessary to reproduce para 3(ii) of the ejectment petition as under:- "That the respondent has started to tie his buffalo inside the shop in dispute since the month of November 1983 and he has also constructed a Khurli in front of the shop in Chappar without the consent of the petitioner and this act on the part of the respondent had diminished the value and the utility of the shop in dispute". 12. It would thus, be clear that the petitioner had no where alleged that the respondent had changed the user of the shop and therefore, was liable to be ejected. The respondent has denied that he had started tethering his buffalo inside the shop and has thus, impaired its value and utility, His contention on the other hand is that he is running a tea shop in it. Even if the allegation of the petitioner is taken on its face value, ihen also, according to him, this act of the respondent amounted to impairment of the value and utility of the building. He has no where stated that this act of the respondent has resulted in material impairment of the value and utility of the shop in dispute. It has been observed by this Court in Roshan Lal v. Dharam Pal, 1984 H.R.R. 683 that it could not be simply impairing the value and utility which is decisive of the issue but it should be materially impairing the value and utility of the building which has to be proved in order to seek ejectment, Thus, the averments and the evidence fall short of that requirement. Tethering of a buffalo inside the shop or constructing a manger inside the shop are only temporary acts which can be removed at any time. 13. Tethering of a buffalo inside the shop or constructing a manger inside the shop are only temporary acts which can be removed at any time. 13. Counsel for the petitioner contended that splinters of cow dung were lying glued to the four walls of the shop. From this fact, it cannot be inferred that value and utility of the shop in dispute has been materially impaired. If there are splinters of cow dung glued on the four walls, the same can be cleaned. Thus, it cannot be held that this act of the respondent amounts to material impairment of the value and utility of the demised shop. Hence, there is no force in this revision petition. Consequently, the same is dismissed.