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2005 DIGILAW 425 (PNJ)

Sohan Lal Chawla v. Janki Dass Chopra

2005-03-23

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. This order shall dispose of two Civil Revisions bearing Nos. 1258 and 1259 of 1990 as both the revision petitions arise out of common orders passed by the learned Rent Controller as well as the learned Appellate Authority and are between the same parties. 2. The tenant is the petitioner before this Court. His ejectment was sought by the landlord-respondent from two shops i.e. shops No. 4 and 5, by filing two separate ejectment applications. Ejectment was sought on the grounds of non-payment of arrears of rent with regard to the aforesaid two shops as well as the removal of the intervening wall AD from the aforesaid two shops. On account of the aforesaid removal of the wall, the landlord claimed that the value and utility of the aforesaid demised premises had been diminished by the tenant. It was claimed by the landlord that the tenant had removed the intervening wall between the two shops without the written consent by the landlord and, as such, had made himself liable for ejectment. 3. The tenant contested the aforesaid two ejectment petitions by filing separate replies. It was claimed by him that he had taken shop No. 4 on rent from the landlord in the year 1976. Later on in the year 1978, shop No. 5 was also taken on rent. At that point of time, landlord had agreed to remove the intervening wall. Accordingly the landlord himself had removed the aforesaid intervening wall. 4. The learned Rent Controller, keeping in view the controversy between the parties and the fact that the parties to the two petitions were the same ordered the consolidation of the two ejectment petitions. It was further ordered that the evidence recorded in one case would be read as evidence in the other case. 5. The parties led their evidence in support of their respective pleas. 6. The learned Rent Controller, vide his order dated September 27, 1988 held that earlier there was one Surinder Singh-Saini, who was tenant in shop No. 5 and had vacated the same in December, 1978. The aforesaid shop No. 5 was let out to the present tenant-petitioner with effect from January 1, 1979 vide rent note Ex.A1. 6. The learned Rent Controller, vide his order dated September 27, 1988 held that earlier there was one Surinder Singh-Saini, who was tenant in shop No. 5 and had vacated the same in December, 1978. The aforesaid shop No. 5 was let out to the present tenant-petitioner with effect from January 1, 1979 vide rent note Ex.A1. On the basis of the description of the property in the aforesaid rent note and also on the basis of the other evidence led by the parties, the learned Rent Controller came to the conclusion that the intervening wall had been removed by the tenant himself and that the tenant had not been able to prove his plea that the same had been removed by the landlord. On that basis, the learned Rent Controller held that the value and utility of the demised premises had been diminished. On the aforesaid findings, the learned Rent Controller ordered the ejectment of the tenant from the aforesaid two shops. 7. The tenant filed two separate appeals before the learned Appellate Authority. The learned Appellate Authority reappraised the entire evidence. On such reappraisal the learned Appellate Authority also came to the similar conclusions as had been arrived at by the learned Rent Controller. The learned Appellate Authority also held that the evidence on the record proved that a wall did exist at the time of letting out of shop No. 5 to the present tenant and that the same had been removed by the tenant. On the basis of the aforesaid fact, it was further held by the learned Appellate Authority that the value and utility of the shops had been diminished. Accordingly, the appeals filed by the tenant had been dismissed. 8. The tenant has, accordingly, approached this court through the present two petitions. 9. I have heard the learned counsel for the parties and with their assistance have also gone through the record of the case. 10. Shri M.L. Sarin, learned senior counsel for the tenant-petitioners has vehemently argued that there was no evidence on the record to show that the wall in question had been removed by the tenant. 9. I have heard the learned counsel for the parties and with their assistance have also gone through the record of the case. 10. Shri M.L. Sarin, learned senior counsel for the tenant-petitioners has vehemently argued that there was no evidence on the record to show that the wall in question had been removed by the tenant. The learned senior counsel has contended that on the other hand it is clearly proved that the tenant is a medical practitioner and, as such, having taken shop No. 5 on tenancy subsequently, it was only natural for the parties to agree for the removal of the intervening wall between the two shops. 11. I have duly considered the arguments raised by the learned counsel for the petitioner but find myself unable to agree with the same. It is not in dispute that originally shop No. 5 was on rent with one Surinder Singh Saini. Surinder Singh Saini vacated the said shop in December, 1978. The present tenant-petitioner took out the aforesaid shop No. 5 on rent with effect from January 1, 1979 vide rent note Ex.A1. The aforesaid rent note Ex. A1 clearly shows that shop No. 5 has been described as an independent entity therein. Ex.A2 is the plan of disputed shop No. 5. The aforesaid site plan shows the existence of the intervening wall between the two shops. Thus, when the two shops have been described as independent entities and shop No. 5 continued to be so described in the rent note Ex.A1 and the site plan Ex.A2, then obviously the plea of the tenant that the landlord himself removed the intervening wall at the time of the leasing out the said shop to the tenant in the year 1979 cannot be accepted. If the aforesaid plea of the tenant were to be accepted then there is absolutely no justification for description of shop No. 5 as an independent and separate entity in the aforesaid documents. Even otherwise there was no justification for the landlord and tenant to enter into two separate and distinct tenancies with regard to the two shops. The rent of the two shops is admittedly Rs. 400/- and Rs. 450/- per month respectively. If the landlord had himself removed the wall in question then the entire premises would have let out as one tenancy and at a lump sum rate of rent. The rent of the two shops is admittedly Rs. 400/- and Rs. 450/- per month respectively. If the landlord had himself removed the wall in question then the entire premises would have let out as one tenancy and at a lump sum rate of rent. The circumstances of the case completely militate against the plea taken by the tenant. 12. Faced with the aforesaid difficulty, the learned counsel for the petitioner has tried to argue that mere removal of the intervening wall between the two shops cannot be taken to have impaired the value and utility of the two shops. It has been argued that the aforesaid wall was merely a parda wall and non-load bearing. Learned counsel has relied upon a judgment of the Supreme Court in the case of Om Pal V/s. Shri Anand Swarup, (1988-2) 94 P.L.R. 699 to contend that each and every construction or alteration would not result in material impairment of the value and utility of the premises. Learned counsel has also relied upon the judgments of this court in the case of Anju Sharma V/s. Krishna Kumar, (1996-3) 114 P.L.R. 549 and Wailati Ram V/s. Sohan Lal, (1985-2) 88 Punjab Law Reporter 480. A strong reliance has been placed on the judgment of Smt. Prem Wati V/s. Ramesh and Ors., (2003-2) 134 P.L.R. 774. 13. I have duly considered the aforesaid contentions of the learned counsel for the petitioner but find myself unable to agree with the same as well. It is well settled that the value and utility of the premises has to be weighed from the view point of the landlord. It is no doubt true, as held in Om Pals case (supra) of the Supreme Court, that each and every act of the construction is not taken as material impairment of the premise but each case has to be weighed on its own facts, and circumstances. In the cases of Anju Sharma and Wailati Ram (supra), this court, while dealing with the plea of impairment of the value and utility of the premises had held that the landlord had failed to examine any expert to show that the removal of the wall in question had impaired the value and utility of the building. In the cases of Anju Sharma and Wailati Ram (supra), this court, while dealing with the plea of impairment of the value and utility of the premises had held that the landlord had failed to examine any expert to show that the removal of the wall in question had impaired the value and utility of the building. However, in the present case the landlord has examined a building expert Shri B.K. Singal as AWL The aforesaid witness had inspected the shop and after noticing the facts submitted his report Ex.A1 and site plan Ex.A2. On account of the removal of the wall and also on account of the fact that a pillar in the shop had been broken and electric meter had been installed therein it was opined by the expert that the aforesaid acts had materially impaired the value and utility of the shop. Of course the tenant had also examined an expert, namely, S.C. Seth as RW4. The aforesaid expert has also submitted his report Ex.R1. However, both the authorities below have chosen to accept report of the expert produced by the landlord. On the acceptance of the aforesaid report, a conclusion has been drawn that the value and utility of the shops in question has been impaired. Thus, the aforesaid authorities relied upon by the learned counsel for the petitioner do not apply to the facts and circumstances of the case. Similarly, reliance placed by the learned counsel on the judgment of Smt. Prem Watis case (supra) is without any justification. In Prem Watis case also the landlord had failed to examine any expert witness. It was in those circumstances that this court had held that ground of ejectment could not be taken to have duly proved. 14. Both the authorities below in the present case have come to a concurrent finding of fact with regard to diminishing of the value and utility of the premises in question. The appreciation of evidence by the authorities below has not been shown to be erroneous in any manner. Although, learned counsel for the tenant-petitioner has taken me through the evidence on record but I do not find that the view taken by the authorities below is in any manner, judicially perverse or otherwise unsustainable. 15. In view of the aforesaid discussion, I do not find any merit in the present revision petitions and the same are, accordingly, dismissed. Although, learned counsel for the tenant-petitioner has taken me through the evidence on record but I do not find that the view taken by the authorities below is in any manner, judicially perverse or otherwise unsustainable. 15. In view of the aforesaid discussion, I do not find any merit in the present revision petitions and the same are, accordingly, dismissed. However, the tenant-petitioner is granted three months time to vacate and hand over the vacant possession of the premises to the landlord respondent.