JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Sarvesh Agarval, counsel for the revisionists and Sri Prakhar Joshi, counsel for the respondents. 2. By the present Civil Revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionists have prayed for setting aside the judgment and decree dated 21.03.2005 passed by the Additional District Judge/1st Fast Track Court, Nainital in S.C.C. Case No. 14 of 2000 Sri Iqbal Hussain and others Vs. Sri Baboo Kabari. 3. Briefly stated, the suit was filed by the plaintiff-respondents being Suit No. 14 of 2000 Sri Iqbal Hussain and others Vs. Sri Baboo Kabari for recovery of rent, damagers and eviction against the defendant. According to the plaint averments, the defendant is tenant at the rate of Rs. 300/- per month of two rooms with Veranda at ground floor and one room in first floor in House No. 13-394, Line No. 8, Azad Nagar, Haldwani, District Nainital. The plaintiff is owner of the said premises. Since March, 1994 to April, 2000, the defendant has not paid the rent and a sum of Rs. 22,000/- has become due towards the arrears of rent. 4. In paragraph 7 of the plaint, it has been stated that the defendant has constructed illegal latrine in Veranda without the consent and permission in writing of plaintiffs. Said portion is quoted below: “7. That defendant has constructed illegal latrine in Veranda without the consent and permission in writing of Plaintiffs. Due to illegal and unauthorized construction of Latrine at Veranda, the defendant has diminished the value and utility of the property and has disfigured the property of the Plaintiffs.” 5. So far as the averments with regard to the arrears of rent is concerned, the defendant has stated that no arrears of rent are due upon him and so far as paragraph 7 of the plaint is concerned, the same has been denied as under: ß7- okni= dk in lañ 7 drbZ Lohdkj ugha gS vkSj izfroknh us dksbZ Hkh voS/k fuekZ.k ugha fd;k gS] ftlls oknhx.k dh lEifÙk dks uqdlku igq¡pk gks vkSj mlesa vkewypwy ifjorZu fd;k gks] ftlls oknhx.k dh lEifÙk dk cktkj Hkko fxj x;k gksAÞ 6. In paragraph 16 of the written statement, it has been stated that the defendant has not made any illegal construction in the tenanted portion so as to diminish the value or disfigure the building in dispute. In paragraph 16 of the written statement, it has been stated that the defendant has not made any illegal construction in the tenanted portion so as to diminish the value or disfigure the building in dispute. Relevant paragraph is quoted below: ß16- ;g fd izfroknh us dksbZ Hkh voS/k fuekZ.k vius dCts o fdjk;snkjh okys Hkkx esa ugha fd;k gS] ftlls oknhx.k dh lEifÙk dks uqdlku igq¡pk gks vkSj vkewypwy ifjorZu djus ls mldk cktkj Hkko fxj x;k gksA oknhx.kksa us izfroknh dks csn[ky djus ds fy, >wBs o eux 7. Both the parties were examined on oath. P.W.1 has come in the witness box. He has stated that the defendant has constructed the latrine. There is no averment in the statement that the latrine has been constructed on the front portion of the ground floor of the Verandah. The said statement is quoted below: ßizfroknh us fookfnr edku ds cjkens esa ySVªhu fuekZ.k dh ftlds ckjs esa izfroknh us gels dksbZ lgefr] izkIr ugha dhA izfroknh }kjk ySVªhu dk fuekZ.k voS/k gS blls edku dk Lo:i fcxM+ x;k o edku dh mi;ksfxrk esa deh vk x;h gSA bldh eSaus f”kdk;r foñizkñ fofu;fer {ks= dks dh gS vkSj bl ij izfroknh ij dk;Zokgh py jgh gSA izfroknh }kjk fd;s x;s vukf/kÑr fuekZ.k ls iwoZ blesa ySVªhu ugha cuh FkhAÞ 8. However, further it has come in the evidence that the building in question is double storeyed building. Further the plaintiff has made statement in the cross-examination to the following effect: ßvizSy ds eghus ds vkf[kjh esa lu~ 2000 esa izfroknh }kjk ySVªhu cuk;h eSaus bl lEcUèk esa vkjñchñvksñ dk;kZy; esa f”kdk;r dh Fkh ;g fjiksVZ eSaus fnukad 27-7-2000 dks nh FkhA igys u Åij ds eafty esa u ,d eafty esa igys ySVªhu FkhA eSaus izfroknh dks Hkou cxSj ySVªhu ds fdjk;s ij fn;k FkkA eSaus uksfVl esa ;g ckr ugha fy[kh dh fd eSaus fcuk ySVªhu ds dejs fdjk;s ij fn;s FksA ;g dguk xyr gS fd ySVªhu uhps cuh gS og igys ls cuk;h x;h gksA eSaus vius dj fu/kkZj.k ds dkxt uñikñ esa j[ks Fks eSa vius firk dh e`R;q ds ckn 3 ;k 4 ckj uñikñ esa vk pqdk gw¡A uñikñ esa vkdj irk pyk fd dj fu/kkZj.k gks pqdk gSAÞ 9. D.W.1 has also come in the witness box and he has denied that he has not constructed the latrine on the ground floor. D.W.1 has also come in the witness box and he has denied that he has not constructed the latrine on the ground floor. Relevant portion is quoted below: ßesjs Hkwry ds pcwrjs ij esjs VV~Vh ugha cuh gSA esjh VV~Vh nqeaftys esa gSAÞ 10. The Judge Small Cause Court has framed as many as two issues to the following effect: “(1) Whether the defendant has failed to pay the rent of the premises in his possession and has been in arrears of rent for more than four month, if yes, its effect? (2) Whether the defendant has done any material alteration in the tenanted portion, which has diminished the value and price of the building in dispute and has disfigured the same?” 11. So far as Issue No. 1 is concerned, finding was recorded in favour of the defendant that the defendant has deposited the entire arrears of rent under Section 20(4) of the U.P. Act No. 13 of 1972. 12. So far as Issue No. 2 is concerned, finding was recorded that the defendant has made the mischief as contained under Section 20(2) (b) and (c) of the U.P. Act No. 13 of 1972 and therefore, he is liable to be evicted. 13. The Judge Small Cause Court has relied upon the statements to the following effect: ßbl izdkj lk{kh ds c;ku ls ;g Li’V gks tkrk gS fd blus izfroknh ds fdjk;snkjh okys edku dks ugha ns[kk gS blfy;s bl lk{kh ds fdlh Hkh c;ku ij fo”okl ugha fd;k tk ldrk rFkk ihñMCyw&1 v[kyk[k gqlSu] ihñMCyw&2 eksñ eqlbZy ds c;kuksa rFkk MhñMCyw&1 ckcw ds c;kuksa ls ;g ckr fl) gks tkrh gS fd ckcw dckM+h }kjk vius fdjk;snkjh okyh lEifÙk ds cjkens esa ySVªhu dk fuekZ.k fd;k x;k gS vkSj pwafd mlds }kjk vius izfroknhi= vkSj lk{; esa bl izdkj ds fdlh “kkSpky; ds fuekZ.k dks vLohdkj fd;k x;k gS rFkk oknh ds dFkukuqlkj izfroknh us fcuk mldh lgefr ds fuekZ.k fd;k x;k gS blfy;s ;g ckr Hkh fl) gks tkrh gS fd izfroknh }kjk tks “kkSpky; dk fuekZ.k viuh fdjk;snkjh okys cjkens esa fd;k x;k gS og oknh Hkou Lokeh dh lgefr ls ugha fd;k gSAÞ 14. The Judge Small Cause Court has come to the conclusion that the defendant has constructed the latrine on the ground-floor without the consent and permission in writing of the plaintiff. The Judge Small Cause Court has come to the conclusion that the defendant has constructed the latrine on the ground-floor without the consent and permission in writing of the plaintiff. The said finding is quoted below: ß18- mijksDr foospu ds vk/kkj ij U;k;ky; bl fu’d’kZ ij igq¡pk gS fd izfroknh }kjk viuh fdjk;snkjh okyh lEifÙk esa fcuk Hkou Lokeh dh fyf[kr lgefr ds lkjoku ifjorZu fd;k x;k gS ftlls ml Hkou dh mi;ksfxrk o dher esa deha vk;h vkSj Hkou dk Lo:i Hkh fcxM+ x;k gS blfy;s bl vk/kkj ij oknhx.k iz”uxr lEifÙk ls izfroknh dks csn[ky djus ds vf/kdkjh gSaAÞ 15. Thereafter, the Judge Small Cause Court has come to the conclusion that the defendant has disfigured the same. 16. Section 20(2) (b) & (c) of the U.P. Act No. 13 of 1972 reads as under: “(b) that the tenant has willfully caused or permitted to be caused substantial damage to the building; (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;” 17. Counsel for the revisionist-defendants has submitted that in view of the pleadings of the parties, it is evident that the Latrine forms part of the first-floor and not of the ground-floor and there is no plaint averments that the latrine was ever constructed on the ground-floor so as to constitute the mischief as contained under Section 20(2) (b) and (c) of the Act. 18. In Om Prakash Vs. Amar Singh and another AIR 1987 SC Page 185, the Apex Court has observed as under: “One portion of the tin-shed was already is existence on the open land adjacent to the accommodation, the appellant merely extended that tin shed which did not make any substantially change either in the form structure of the building. There is no material on record to sustain the findings 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. 10. Learned-Counsel then urged that this Court should not interfere with the findings of fact recorded by the High Court. We find no merit in the submission. In the circumstances the construction of tin shed could not be held to have materially altered the accommodation. 10. Learned-Counsel then urged that this Court should not interfere with the findings of fact recorded by the High Court. We find no merit in the submission. The question whether disputed construction constituted material alternations is a mixed question of fact and law. The High Court in second appeal interfered with the findings of facts recorded by the lower courts on the question whether tin shed and the partition wall constituted material alterations. The learned Single Judge placing reliance on the observations of the Full Bench decision is Sita Ram’s case (supra) held that the disputed construction even though temporary in nature, which could be removed without causing any damage to the accommodation, would fall within the mischief of material alterations. 19. Counsel for the revisionist has referred Smt. Amita Arya and others Vs. Addl. District Judge IX, District Allahabad 1999 (1) ARC Page 96, where it has been held that in order to prove the mischief under Section 20(2) (b) and (c), following three ingredients have to be proved: “7. Learned Counsel for the petitioners vehemently argued that in order to attract clause (c) of sub-section (2) of Section 20 of the Act, it is necessary for the landlord to prove the following facts:- (1) that the tenant has without the permission in writing of the landlord made or permitted to be made any construction or structural alteration in the building under tenancy, and (2) that the construction or structural alterations so made was of such a nature as was likely to diminish the value of the tenanted building or its utility or to disfigure it. 8. It is well settled law that in order to attract the provision of clause (c) of Section 20 (2) of the Act it is not necessary that all the three contingencies namely diminion in value or utility or disfiguration of the tenanted building must co-exist together. The requirement of Section 20(2) (c) of the Act will be fulfilled if the case is brought under any of three categories mentioned above. 9. In the present case the landlord came with the case that the constructions raised by the tenant without permission have diminished the utility of the tenanted premises and have also disfigured it. The requirement of Section 20(2) (c) of the Act will be fulfilled if the case is brought under any of three categories mentioned above. 9. In the present case the landlord came with the case that the constructions raised by the tenant without permission have diminished the utility of the tenanted premises and have also disfigured it. However, as rightly pointed out by the learned Counsel for the petitioner, neither the trial Court nor the revisional Court have recorded any categorical finding that the constructions alleged to have been raised by the tenant have in fact diminished the utility of the tenanted building or have disfigured the same. The revisional Court very conveniently avoided to answer this question by observing that merely because the trial Court has not used the specific words as are contained in clause (c), the finding does not stand vitiated, but it failed to notice that whether in a particular case the constructions raised by the tenant have really diminished the utility of the tenanted building or disfigured the same is a mixed question of law and fact. There may be some constructions which may not fall under any of the categories mentioned in clause (c), and this vital and crucial question can be answered only after assessment of the evidence in the light of nature and kind of the construction. No finding has been recorded as to what particular constructions have been raised by the tenant in the present case and what was their kind and nature and for what purpose they were raised and in what way they have effected the utility of the tenanted building and/or how for and in what manner they have changed, defaced or changed the figure or appearance of the building. There are all questions of fact to be answered on appraisal of evidence. In the absence of specific findings, clause (c) could not be applied to in a mechanical manner. The impugned orders on this ground alone are not sustainable.” 20. Two questions, therefore, are to be decided by the Judge Small Cause Court:- (I) With regard to the existence of the latrine on the ground floor or first-floor and if required the matter may be examined by appointing the commission. The impugned orders on this ground alone are not sustainable.” 20. Two questions, therefore, are to be decided by the Judge Small Cause Court:- (I) With regard to the existence of the latrine on the ground floor or first-floor and if required the matter may be examined by appointing the commission. (II) Even assuming that construction has been done on the ground floor or first floor whether such structure in the tenanted portion is covered so as to cause eviction of the tenant under Section 20 (2) (b) and (c) of the U.P. Act No. 13 of 1972. 21. In view of the observations made above, the revision is allowed on Issue no. 2 and the matter is sent back to the Judge Small Cause Court for deciding afresh in the light of the observations made above. No order as to costs.