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2007 DIGILAW 563 (UTT)

RAJENDRA NATH KAPUR v. SURESH CHANDRA SHARMA

2007-11-19

RAJESH TANDON

body2007
JUDGMENT Hon'ble Rajesh Tandon, J. Heard Shri B.D. Pandey, counsel for the appellant and Shri Sarvesh Agrawal, counsel for the respondent. 2. By the present revision filed under Section 25 of the Provincial Small Causes Courts Act, the applicant has prayed for setting aside the order dated 21.7.1990 passed by the Judge, Small Causes Court, Nainital in S.C.C. Suit no. 24 of 1984. 3. Briefly stated, a suit was filed for ejectment of the defendant on the ground that the defendant was let out a shop @ Rs. 225/- per month in the year 1984 for purposes of selling spare parts of the automobile. In January, 1984, the defendant started breaking the boundary wall shown by 'sa, e, in the plaint map. After the objection, the defendant stopped breaking the said boundary wall. Later on, in June 1984 when the plaintiff was out of station, the defendant completely demolished the aforesaid wall and enlarged the gate shown by letters 'ka-kha' and constructed a new gate which is shown by letters 'ga-gha'. The defendant has erected a wall and divided the shop in question as a result of which the shop has been disfigured and the value and the utility of the same has been diminished. The alteration made by the defendant is very material and, therefore, the defendant is liable to be evicted from the shop in dispute. The defendant has not paid the rent of the shop from October, 1983. The defendant, therefore, has sent the notice dated 4.8.1984 for recovery of rent as well as for terminating the tenancy which was served upon the defendant on 8.8.1984 but the defendant has neither paid the rent of the shop nor has vacated the shop in question. 4. The defendant has filed a written statement stating therein that he has not demolished any wall and has not constructed new gate. The gate is still in its previous condition. The defendant has constructed a duct in the empty shop which was essential for his business. The defendant has sent the rent of the shop to the plaintiff by way of money order which was denied to be accepted by the plaintiff. The defendant has deposited the rent of the shop in question under Section 20(4) of the U.P. Act No. 13 of 1972. The suit of the plaintiff is liable to be dismissed. 5. The defendant has sent the rent of the shop to the plaintiff by way of money order which was denied to be accepted by the plaintiff. The defendant has deposited the rent of the shop in question under Section 20(4) of the U.P. Act No. 13 of 1972. The suit of the plaintiff is liable to be dismissed. 5. The plaintiff has examined himself as P.W.1 and Chokhelal as P.W.2. The defendant has examined himself as D.W.1 and Asmat Ulla as D.W.2. 6. Towards the documentary evidence, the plaintiff has produced 8 documents as per list 5 ga. The defendant has produced 5 treasury challans as per list 22 ga, 9 treasury challans as per list 52 ga and 10 documents as per list 36 ga. 7. On the pleadings of the parties, the Judge, Small Causes Court has framed the following issues :- "1. Whether the tenant has without the permission in writing of the landlord made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it? 2. Relief? 8. While deciding issue no. 1 as to whether the tenant has without the permission in writing of the landlord made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it, the Judge, Small Causes Court has placed reliance on the statement of D.W.1 who has admitted in his statement as under:- ßeSa eksVj ikV~Zl o xkfM+;ksa dh ejEer] /kqykbZ dk dke 'kq: ls gh djrk gw¡A nqdku blh dke ds fy, yh FkhA xkfM+;ksa dh /kqykbZ esjs dke dk vax gS] blds fy, eSaus ,d MDV tehu esa 3 QqV Å¡pk cuk;k] tks vko';d FkkAÞ 9. Further, the Judge, Small Causes Court has recorded the finding that so far as the removal of the duct, as alleged by the defendant, is concerned, the same can be removed but it cannot be removed without demolition. On the basis of the aforesaid, the Judge, Small Causes Court has recorded the findings that the tenant has constructed the duct of permanent nature in the shop in question and thereby has disfigured the shop and has diminished the value and utility of the shop. 10. On the basis of the aforesaid, the Judge, Small Causes Court has recorded the findings that the tenant has constructed the duct of permanent nature in the shop in question and thereby has disfigured the shop and has diminished the value and utility of the shop. 10. On the basis of the aforesaid, the Judge, Small Causes Court has decreed the suit of the plaintiff for ejectment of the defendant and for recovery of the arrears of rent and damages for the use and occupation of the shop in question by the defendant. 11. In the case of Ram Murty Gupta v. Suresh Chandra Agrawal reported in AIR 1973 Allahabad 582 (V 60 C 205), it has been held by the Allahabad High Court are as under :- "5. The construction in question were, on the case of the parties, made by the appellant in order to install an ice candy plant, and such of these constructions which have been found to have been material alterations in the accommodation are (1) breaking open the roof and fixing a 3 ft. x 3 ft. window in it to enable the appellant to reach the said roof; and (2) constructing a water tank, fixing a condenser and making of enclosures on the roof of the accommodation. 6. It may also be pointed out that in order to connect the water tank and the condenser with the ice candy plant, two holes were made in the roof in order to fix pipes carrying hot and cold water separately. It would be seen that the construction referred to above had ex facie the effect of altering the form and structure of the accommodation. Not only the roof was broken open in order to have a passage for going over it and to fix two pipes but even a water tank, was constructed, which according to the evidence of D.W.3 Uma Shanker produced by the appellant himself was 4' x 4' with a depth of 3'. These construction obviously have the effect of making material alterations in the accommodation in view of the criteria laid down in M.D. Shah v. Bisun Das, AIR 1967 SC 643 and Sita Ram Saran v. Johri Mal, 1972 All LJ 301 = (AIR 1972 All 317) (FB). 12. These construction obviously have the effect of making material alterations in the accommodation in view of the criteria laid down in M.D. Shah v. Bisun Das, AIR 1967 SC 643 and Sita Ram Saran v. Johri Mal, 1972 All LJ 301 = (AIR 1972 All 317) (FB). 12. In Vipin Kumar v. Roshan Lal Anand and others (1993) 2 SCC 614, after referring the provisions of East Punjab Urban Rent Restriction Act, 1949, Section 43 (2)(iii), the Apex Court has recorded the finding to the following effect :- "By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. 13. A perusal of the record shows that admittedly, the defendant has constructed the duct of 22 ft. x 6 fx. X 3 ft. and has widened the gate. Therefore, in view of the principles laid down by the Apex Court in Vipin Kumar v. Roshan Lal Anand and others, (1993) 2 SCC 614 and of Ram Murty Gupta v. Suresh Chandra Agrawal reported in AIR 1973 Allahabad 582 (V 60 C 205), I do not find any illegality and perversity with the findings recorded by the judge, Small Causes Court and thereafter decreeing the suit. 14. In Harshvardhan Chokkani vs. Bhupendra N. Patel 2002 SCFBRC 344, the Apex Court has observed as under : "Nonetheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. 14. In Harshvardhan Chokkani vs. Bhupendra N. Patel 2002 SCFBRC 344, the Apex Court has observed as under : "Nonetheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In examining the legality and proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a biding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved in such that no reasonable person could arrive at or the like, it is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exists in this case to justify interference by the High Court." 15. In Miss Kanta Udharam Jagasia v. Shir C.K.S. Rao 1998 SCFBRC 45, The Apex Court has observed as under : "The High Court, forgetting that it had a limited revisional jurisdiction, analyzed the evidence and substituted its findings in place of the findings of the Competent Authority. On a perusal of the evidence, we find that the findings arrived at by the Competent Authority on the basis of oral evidence cannot be said to be perverse or even unreasonable requiring the High Court to reverse the same. It is well settled that though another view is possible on reappreciation of the evidence, the revisional Court may not interfere with the findings of the Lower Courts on that ground." 16. In Patel Valmik Himatlal v. Patel Mohanlal Muljibhai 1998 SCFBRC 351, the Apex Court has observed as under : "5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Ors. (1987) 3 SCC 538, and after referring to a catena of authorities. Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. (1987) 3 SCC 538, and after referring to a catena of authorities. Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction? 6. The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to re-hear the matter and re-appreciate the evidence. He mere fact that a different view is possible on re-appreciation of evidence cannot be a ground for exercise of the revisional jurisdiction. 17. In view of the above, I do not find any ground for interference in exercising of revisional power under Section 25 of the Provincial Small Causes Court. The revision, therefore, lacks merit and is liable to be dismissed. 18. Consequently revision is dismissed. No order as to costs. 19. In view of the aforesaid, the revision lacks merit and is liable to be dismissed. 20. Consequently, revision is dismissed. No order as to costs.