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2003 DIGILAW 325 (PNJ)

Jiwan Dass (Died) Through Lrs. v. Raj Rani

2003-02-20

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity `the Act) by the landlord-petitioner challenges the judgment of the Appellate Authority, Rohtak dated 7.12.1985, whereby the findings of facts on the issue as to whether the tenant-respondents have impaired the value and utility of the premises in question were reversed and the application of the landlord- petitioner for ejectment of the tenant-respondent was dismissed. It is pertinent to mention that the Rent Controller in his order dated 27.11.1984 had held that the tenant-respondent has caused material alterations to the demised premises, which has resulted in impairing the value and utility of the property and the tenant-respondent is liable to be evicted under clause (iii) of sub-section (2) of Section 13 of the Act. 2. The facts in brief necessary for deciding the controversy raised in the instant petition are that the landlord-petitioner filed an application under Section 13 of the Act seeking ejectment of the tenant-respondent from the demised premises alleging the arrears of rent and details of material alterations resulting in impairment of value and utility of the demised premises. The allegations as specified in the application of the landlord- petitioner read as under :- "ii) That the respondents have closed and covered verandah by constructing wall upto roof marked XY and shown in red colour in the site plan Ex. A-2, thereby materially impairing the value and utility of the property; iii) That the respondents have by their acts and conduct caused cracks at two places in the wall of the shop on the western side and that the same are shown in blue colour and by letters QLR in the site plan Ex. A-1 thereby also causing loss to the petitioner-landlords and materially impairing the value and utility of the building; iv) That the respondents broken the cement plaster in side the shop at many places thereby causing loss to the property. v) That the respondents have broken floor of the shop and store by hammer strikes by breaking hard coal inside the shop causing pits therein and vi) That the respondents are a source of nuisance in the locality and to the neighbours and to the petitioners as and when they had gone there to demand rent from the respondents. v) That the respondents have broken floor of the shop and store by hammer strikes by breaking hard coal inside the shop causing pits therein and vi) That the respondents are a source of nuisance in the locality and to the neighbours and to the petitioners as and when they had gone there to demand rent from the respondents. According to the petitioners, the respondent No. 1 is a quarrelsome person." 3. The ground of arrears of rent did not survive because of legal tender made by the tenant-respondent nor the ground concerning creation of nuisance was pressed. 4. The only ground on which the parties litigated in the Courts below was as to whether damage caused to the premises in dispute has materially impaired its value and utility. The Rent Controller after detailed examination of the evidence came to the conclusion that the damage to the wall because of installation of hand pump, closure of verandah by raising a wall and demolition of projector would tantamount to causing damage to the premises because all witnesses examined on behalf of the landlord-petitioner had stated that those acts of the tenant-respondents would impair the value and utility of the premises. The principal reliance of the tenant-respondents was that in the earlier litigation AW-1 Ganga Ram Maini, retired Executive Engineer had also submitted a report concerning the condition of the building and the same report is stated to be relied upon by the landlord-petitioner in the present proceedings. The Rent Controller examined the report submitted by AW-1 Sh. Ganga Ram Maini and recorded his views, which read as under :- "He is the retired Executive Engineer and is stated to have inspected the premises on two occasions, once in the year 1979 and secondly in March 1984. The inspection reports prepared by him in the year 1979, are Ex. R-1 and R-2 while the inspection report given by him in the year 1984 is Ex. A-1. The first two reports have been placed on record by the respondents to confront the Local Commissioner with the report which was made by him four years back in comparison to the report which has been made by him now in the year 1984. In the latest report Ex. A-1. The first two reports have been placed on record by the respondents to confront the Local Commissioner with the report which was made by him four years back in comparison to the report which has been made by him now in the year 1984. In the latest report Ex. A-1 the witness had mentioned that the respondents have closed the opening of the verandah upto roof on western side and having made a hearth in the verandah. That there is one crack extending to the top of roof in the western wall and that entire rain water percolate to the foundations. That due to action of the water tap at the western outer corner of the verandah water percolates from 6" gap between drain and wall and thus causing damages to the same. It has also been reported by him that parapet on the western side has fallen with a crack visible on the northern side and it is titled in the manner that it may fall at any time. The ground floor of the shop has also been damaged at many places whereas due to breaking of hard coal with hammer strokes the floor of the store has also been badly damaged. While detailing with the above damages, the expert witness Ganga Ram Maini has also opined that the value of the premises in dispute has been deprecated due to action of the respondents. 13. In the earlier reports that were made by this witness in the year 1979, the general condition of the shop and store have been depicted as very poor. At that time as well this witness had found cracks in the roof, slab and the walls as well as contilever portion of slab and that tenant had closed the western side of the verandah in an unauthorised manner and has put up hearth in it. The slab of main shop was also reported to be in poor condition. As regards the store report than given by this witness is that it was a dark room with floor lower then the level of the shop and that of the main road, respectively by one foot. The overall opinion of the witness then given was that the shop and store were quite unfit and unsafe for use and needed to be dismantled and rebuilt. 14. The overall opinion of the witness then given was that the shop and store were quite unfit and unsafe for use and needed to be dismantled and rebuilt. 14. The reports which are there on the file having been made by AW1 Ganga Ram Maini on two different occasions show it beyond doubt that the western wall of the demised premises has been raised to close the verandah wherein the respondents have built a hearth. These reports also show that because of breaking action of hard coal by means of hammer, the floor has also been damaged and furthermore due to percolation in the wall." 5. The analysis of the Rent Controller shows that the expert in his later report has opined that the western wall of the demised premises has been raised to close the verandah, wherein the tenant-respondents have built a hearth. It has further been inferred that because of breaking action of hard coal by hammer, the floor has also damaged and due to percolation of water of hand pump, cracks have also appeared in the walls. 6. On appeal, the Appellate Authority discarded the report of Sh. Ganga Ram Maini AW-1 on the ground that in 1979, the report submitted by AW-1 also showed damage to the floor and walls of the shop. It has also been observed by the Appellate Authority that even in the report submitted in the earlier litigation by AW-1, it was reported that tenant-respondent had closed the western side of the verandah in an unauthorised way. Analysing the statements made by AW-2 Jiwan Dass, AW-3 Raghu Nath Ram and AW-4 Prem Chand, the Appellate Authority concluded that their statements were false because in the report submitted in the year 1979 by AW-1, it was reported that the tenant- respondent had closed the western side of the verandah and the afore-mentioned witnesses had stated in 1984 that the verandah has been closed about two and half years age i.e. 1982. Therefore, once the earlier ejectment petition had failed on the basis of this evidence, then there was no room for allowing the ejectment petition filed by the landlord-petitioner. The Appellate Authority was also influenced by the fact that the landlord-petitioner did not plead as to when the verandah was covered. 7. Mr. Therefore, once the earlier ejectment petition had failed on the basis of this evidence, then there was no room for allowing the ejectment petition filed by the landlord-petitioner. The Appellate Authority was also influenced by the fact that the landlord-petitioner did not plead as to when the verandah was covered. 7. Mr. Ashish Kapoor, learned counsel for the landlord-petitioner has submitted that the Appellate Authority has committed grave error in law by discarding the report of AW-1 Sh. Ganga Ram Maini, the Executive Engineer on the preposterous ground that he has given similar report earlier and the statements made by RW-2, RW-3 and RW-4 are false. He has further submitted that there was no requirement for the landlord-petitioner to disclose in his ejectment application filed under Section 13 to disclose minute details of alterations made by the tenant-respondents or as to when was the verandah covered because these are matters of evidence. The learned counsel then argued that there is ample evidence to show that the tenant-respondents have closed the opening of the verandah upto the roof level on western side and have made a hearth in it. The learned counsel submitted that the following portion of the report was not present in the earlier report :- "In the latest report Ex. A-1 the witness had mentioned that the respondents have closed the opening of the verandah upto roof on western side and have made a hearth in the verandah. That there is one crack extending to the top of roof in the western wall and the entire rain water percolate to the foundations. That due to action of the water tap at the western outer corner of the verandah water percolates from 6" gap between drain and wall and thus causing damages to the same. It has also been reported by him that parapet on the western side has fallen with a crack visible on the northern side and it is titled in the manner that it may fall at any time. The ground floor of the shop has also been damaged at many places whereas due to breaking of hard coal with hammer strokes the floor of the store has also been badly damaged." 8. Mr. Akshay Bhan, learned counsel for the tenant-respondents has argued that no further material has been placed on record to show the material alterations impairing the value and utility of the demised premises. Mr. Akshay Bhan, learned counsel for the tenant-respondents has argued that no further material has been placed on record to show the material alterations impairing the value and utility of the demised premises. According to the learned counsel, the same witness has stated about the same facts, which he has highlighted in his earlier report. Therefore, no reliance can be placed even on the older report because the earlier ejectment petition filed by the landlord-petitioner was dismissed and it was not considered sufficient evidence. 9. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and am of the view that this petition merits acceptance. On comparative examination of reports submitted by AW-1, it can be concluded that the premises in dispute has been materially altered impairing its value and utility. The deterioration can be observed after close scrutiny of both the reports, one submitted by AW-1 in 1979 and the other submitted in 1984. Both the reports in juxta-position read as under :- Report submitted in 1979 Report submitted in 1984 1. The shop has verandah in front. 1. The tenants have closed the opening of verandah upto the roof level on western side and have hearth in the verandah. This has depreciated the value of the shop. 2. This is in very poor condition. There are cracks in roof slab and walls and cantilever portion of slab have been badly damaged. The tenant has closed the western side of verandah in an unauthorised way and has put up hearth in it. 2. There are cracks in the western wall. One crack extends to the top of roof as well and all the rain water percolates to the foundations through it. 3. The slab of main shop is also in the poor conditions. The plaster of walls is badly peeling off. 3. There is a water tap at the western outer corner of verandah. The water from it percolates into the foundations from the 6" gap between drain and wall and thus damages it. 4. The floor of verandah and shop is lower than the main road by 1 ft. 4. The parapet on western side has fallen and there is a crack in the northern side one and it is titled and may fall at any time. 5. I went to the roof as well. 4. The floor of verandah and shop is lower than the main road by 1 ft. 4. The parapet on western side has fallen and there is a crack in the northern side one and it is titled and may fall at any time. 5. I went to the roof as well. The parapet wall is very shakey and is a source of great danger to passers by. 5. The ground floor of the shop was damaged at many places. 6. In the store hard coke was brought and floor was badly damaged on account of hammer strokes for breaking of coal (causing pits) 10. In both the reports, it has been specifically mentioned that the tenants have closed the opening of verandah on the western side and has put up hearth in it. However, in the report submitted in 1984, it has further been mentioned that the tenant-respondents have closed the opening of the verandah upto the roof level. The addition of the word upto the roof level would make material difference and it cannot be presumed that it was part of the earlier report. The report concerning point No. 2 about the cracks is also similar with one difference that the cracks, which extend to the top of the roof allowed the rain water to escape to the foundations of the building. Points No. 3, 4, 5 and 6 of 1984 report were not part of the report submitted in 1979. A cumulative effect of all these damage caused to the property would be that the premises in dispute deteriorated further from 1979 to 1984 and for all the damage, which is being caused, the tenant-respondents would deem to be responsible. Therefore, I do not find any justification for the Appellate Authority to reverse the findings recorded by of learned Rent Controller. 11. I am further of the view that the reasoning adopted by the Appellate Authority with regard to the absence of pleading concerning the date of closing the western side of verandah is erroneous because the landlord- petitioner is not supposed to keep a watch on all the activities of the tenant. It is the duty of the tenant to maintain and refrain from using the building in such a way as to impair its utility and value. It is the duty of the tenant to maintain and refrain from using the building in such a way as to impair its utility and value. Moreover, adequate foundation has been laid by the landlord-petitioner in the application under Section 13 to state that the tenant-respondents have closed and covered the verandah by constructing a wall upto the roof level. The strict principles of pleadings as provided by Order 6 the Code of Civil Procedure 1908 are not applicable to the proceedings undertaken by the Rent Tribunal yet there is no such requirement even under Order 6 to plead evidence. Under Order 6 Rule 2 material facts are required to be pleaded and not the evidence. It is trite to state that material facts have to be determined by reading the provisions of substantive law, which constitute a right or a duty of a litigant. Clause (iii) of sub-section (2) of Section 13 of the Act only requires that the landlord-petitioner should plead that the tenant has committed such acts as are likely to impair materially the value or utility of the premises in dispute. There is nothing in the substantive provisions, which may require the landlord-petitioner to prove that since when such act had been committed or continued. Therefore, the absence of pleading the date when the verandah was closed on the western side would hardly be material and the views of the Appellate Authority in this respect can also not be approved and the same is liable to be reversed. For the reasons stated above, this petition succeeds and the same is allowed. The tenant-respondent shall hand over vacant possession of demised premises to the landlord-petitioner within two weeks from today. Petition allowed.