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2008 DIGILAW 1331 (PNJ)

Narinder Kumar v. Pushpa Gupta

2008-08-07

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The tenant petitioner has filed this revision petition against the order passed by the learned Rent Controller Bathinda and the order passed by the learned Appellate Authority, Bathinda ordering eviction under Section 13 of the East Punjab Rent Restriction Act, 1949 (for short the Act). The respondent landlord filed rent application which was decided by Ms. Manjot Kaur, learned Rent Controller Bathinda. An appeal was preferred which was disposed of on 5.10.2004 by setting aside the finding recorded by the learned Rent Controller with a direction to decide the case afresh in view of the law laid down by Honble Supreme Court in the case of Rakesh Wadhwan v. Jagdamba Industrial Corporation (2002-2) 131 P.L.R. 370 (S.C). 2. In pursuance to the order passed by the learned Appellate Authority provisional assessment of the rent was made on 27.8.2005 and the petitioner tenant tendered the rent on 16.9.2005 in pursuance to the provisional order passed by the learned Rent Controller. 3. Respondent landlord sought ejectment of the petitioner therein on the plea that he was owner of the shop forming part of Building No. 2087 Mall Road Bathinda. Demised shop was given on lease to the respondent through rent note dated 1.4.1995. Rent note was executed by the petitioner tenant in the presence marginal witnesses. Agreed rate of rent, was Rs. 1,000/- per month. Lease was for a period of 11 months. It was also the claim of the landlord that the house tax of the shop was to be paid by the tenant over and above the agreed rent. The landlord further claimed that it was agreed between the parties that if the demised shop was occupied after expiry of lease period the rate of rent would be increased by 10 per cent every year. The tenant paid rent at the rate of Rs. 1,000/- per month from 1.4.1987. It was claimed that the tenant has not paid any rent and house tax thereafter as per the terms of the rent note. Eviction was sought on the ground that the tenant failed to pay the rent and house-tax of the demised shop from 1.4.1987. 4. The second ground on which eviction was sought was that tenant had materially impaired the value and utility of the shop by constructing two concrete slabs in the back wall by making Khuddas and inserting steel rods. Eviction was sought on the ground that the tenant failed to pay the rent and house-tax of the demised shop from 1.4.1987. 4. The second ground on which eviction was sought was that tenant had materially impaired the value and utility of the shop by constructing two concrete slabs in the back wall by making Khuddas and inserting steel rods. It was claimed that he has put heavy weight on the wall which may collapse after some goods are put on the shelves. It was also claimed that the tenant has recently raised construction of the height of 13" on the wall with adjoining brick steps about 4 behind the main gate. It was claimed mat proper passage was obstructed and thus, the value and utility of the shop was materially affected. 5. The petition was contested by the tenant and preliminary objection was raised that the application has been filed on false and baseless allegations with mala fide intention to claim more rent. 6. On merit, ownership of the applicant was admitted. However, it was denied that the shop in question was let out on 1.2.1985. Execution of the rent note was also denied. Tenant also denied that the rate of rent was Rs. 1,000/- per month. Assertion of the landlord that the rate of rent was agreed to be increased by 10 per cent was also denied. The stand taken by the respondent tenant was that the shop was taken on rent orally on 1.2.1985 on monthly rent of Rs. 400/-. The stand was also taken that house tax was not agreed to be paid to the landlord. The tenant claimed that the landlord obtained signatures of the respondent on 2 blank printed forms in February, 1985 and the rent note might have been fabricated in connivance with the witnesses by using the blank printed form. The tenant claimed that on the request of the landlord rent was increased from Rs. 400/- to Rs. 500/- w.e.f. 1.4.1989. The tenant reserved his right to initiate criminal proceedings against the landlord and witnesses for forging the rent note. The tenant claimed that the landlord never issued the rent receipts to the tenant. The petitioner tenant claimed that he never demanded the receipts due to cordial relation between the parties. 400/- to Rs. 500/- w.e.f. 1.4.1989. The tenant reserved his right to initiate criminal proceedings against the landlord and witnesses for forging the rent note. The tenant claimed that the landlord never issued the rent receipts to the tenant. The petitioner tenant claimed that he never demanded the receipts due to cordial relation between the parties. The tenant also claimed that the landlord was also not issuing rent receipts to any of the tenants inducted by him on 6-7 shops. It was claimed that the present petition has been filed to pressurize the petitioner to increase the rent as the rent in the locality has increased manifold. It was also claimed that the landlord wanted the rent to be increased to Rs. 2,000/- per month which was not agreed to by the petitioner. The petitioner tendered a rent of Rs. 1,275/- as arrears of rent for the moths of January and February, 1994; Rs. 10/- as house-tax, Rs. 25/- as interest and Rs. 100/- towards costs on the first date of hearing which was accepted by the landlord. The petitioner also reserved his right to recover the amount of house-tax illegally recovered from him. The petitioner denied having constructed concert slabs. It was claimed that shelves were already in the shop and no heavy load has been placed on the shelves, the petitioner further claimed that the shop is situated at Mall Road, Bathinda which is occasionally flooded with rainy water or chocking of sewerage etc. Shop was flooded with rainy water in September/October, 1990 and in order to avoid entry of flood and sewerage water the tenant constructed small temporary Pardi Wall in front of the shop in question with the consent of the landlord. The said temporary structure could be removed at anytime without even a slight damage to any portion of the shop. The plea of impairment of value and utility was, thus, denied. 7. On the pleadings of the parties the learned Rent Controller framed the following issues: 1. Whether the tender made by the respondent is short and invalid? OPA 2. Whether the respondent has materially impaired the value and utility of the demised shop? OPA 3. Relief. 8. The plea of impairment of value and utility was, thus, denied. 7. On the pleadings of the parties the learned Rent Controller framed the following issues: 1. Whether the tender made by the respondent is short and invalid? OPA 2. Whether the respondent has materially impaired the value and utility of the demised shop? OPA 3. Relief. 8. In order to prove the case the landlord examined AW1 Sat Pal, AW2 Chander Shekar, AW3 Ashok Kumar, AW4 Mani Raj, AW5 Varinder Kumar Gupta, AW6 Atul Kumar Singla, Handwriting and Finger Prints Expert besides entering the witness box himself as AW7. The petitioner tenant examined RW1 Dhan Singh Negi, RW2 Mahesh Kumar, RW3 Radhey Sham, RW4 Navdeep Gupta, Harnd writing Expert, RW5 Sanjeev Bansal, Architecture, RW6, P.D. Goyal, Advocate, RW7, A.L. Grover, Taxation Assistant, RW9 Baljit Singh Record Keeper besides appearing himself in the witness box as RW 8. 9. In view of the evidence brought on record, learned Rent Controller came to the conclusion that the tender made by the respondent was short and invalid and decided issue No. l against the petitioner. On issue No. 2 learned Rent Controller recorded a finding that the petitioner has impaired the value and utility of the, shop and consequently decided issue No. 2 also against the petitioner and ordered eviction of the tenant. In appeal filed by the tenant learned Appellate Authority agreed with the findings re- . corded by learnt Rent Controller and dismissed the appeal. Hence, this revision. 10. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner referred to order dated 27.8.2005 passed by the learned Rent Controller vide which provisional rent along with interest and costs was assessed at Rs. 2,05,500/-. He referred to the order dated 16.9.2005 showing that in pursuance to the order passed by the learned senior counsel appearing on behalf of the petitioner also pointed out that thereafter additional assessment of Rs. 39,079/- was made and the said amount was also paid by the tenant. 11. This fact could not be disputed by the learned Counsel appearing on behalf of the respondent-landlord. 39,079/- was made and the said amount was also paid by the tenant. 11. This fact could not be disputed by the learned Counsel appearing on behalf of the respondent-landlord. Thus, it would be seen that in the present case in pursuance to the assessment made by the learned Rent Controller in terms of the law laid down by Honble Supreme Court in the case of Rakesh Wadhwan v. Jagdamba Industrial Corporation (supra) the tenant had tendered the rent and therefore, the finding on issue No. l that the tender was invalid cannot be sustained and is accordingly ordered to be reversed. 12. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner also challenges the findings recorded by the learned Rent Controller and the Appellate Authority with regard to the impairment of value and utility of the demised premises on the plea that in the present case it is proved on record that the road was on higher level and therefore, temporary wall without foundation was constructed to stop the rainy and sewerage water coming into the building. Brick steps were also of temporary nature and therefore, claimed that temporary construction made by the petitioner being not of permanent nature did not impair the value and utility of the shop in question as has been held by the learned Courts below. 13. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner also referred to photographs placed on record showing that the petitioner only constructed temporary doors of glass which was necessary for running of his Photostat business. The wooden door also, in no way, impaired the value and utility of the building. The contention of learned senior counsel was that in the present case learned Rent Controller as well as learned Appellate Authority completely misread the evidence brought on record to come to a conclusion that there has been impairment of value and utility. 14. Learned senior counsel for the petitioner referred to the statement made by Varinder Kumar Gupta who appeared as AW5 as expert witness on behalf of the respondent landlord, wherein in cross-examination he admitted the fact that he did not check whether the wall AB had any foundation or not. He also admitted that he did not check whether steps shown by him with blue colour in his report had any foundation or not. He also admitted that he did not check whether steps shown by him with blue colour in his report had any foundation or not. He further opined that only floor will be damaged in case wall and steps are removed. He also admitted the fact that wooden partition constructed in the shop in question could be easily removed. 15. In view of the admission made by AW5 in his statement, Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner also made reference to the statement of RW5 who was the expert witness examined by the petitioner. 16. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner by referring to the statement of RW5 stated that it was proved on record that there was no foundation and therefore, construction in question was of temporary nurture. The contention of learned senior counsel appearing on behalf of the petitioner, therefore, was that admittedly structure made by the petitioner for better/comfortable enjoyment of the tenancy could not be said to be material alteration when the same could be easily removed without any damage to the demised premises. 17. Learned senior counsel appearing on behalf of the petitioner contended that the landlord failed to prove the allegations that the, construction made by the petitioner has, in any way, diminished the value and utility of the premises in question. It was also the case of the petitioner that pardi wall was merely constructed to stop the rainy and sewerage water from entering into the shop. 18. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner contended that the evidence brought on record would show that the temporary construction raised was necessary for running the business for which the demised premises were taken on rent and thus, the changes could not be said to be one which materially affected the utility of the tenanted premises. In support of this contention Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner placed reliance on the judgment of Honble Supreme Court in the case of Hari Rao v. N. Govindachari and Ors., wherein Honble Supreme Court was pleased to lay down as under: 9. In support of this contention Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner placed reliance on the judgment of Honble Supreme Court in the case of Hari Rao v. N. Govindachari and Ors., wherein Honble Supreme Court was pleased to lay down as under: 9. In support of his claim for eviction under Section 10(2)(iii) of the Act; what the landlord pleaded was that his tenant had put up new sign-boards and fixed two additional racks by drilling holes in the wall and in the beam and had taken an independent electric connection for which holes have been drilled in the floor and the wall, and all this amounted to commission of acts of waste as are likely to impair materially the value and utility of the building. He also pleaded that the tenant had damaged the building while converting the shop for selling readymade dresses. He had installed additional show cases on the walls of the building by making holes therein. He had increased the consumption of electricity by fixing up more lights and fans. He had increased the electric load, causing constant blowing out of the fuse in the building and causing damage to the electric service connection to the whole building and the entire building may catch fire at any moment. He also put up a big name board out side, damaging the building and had also drawn heavy electrical lines and taken service connection to the name board, with a heavy load of electricity. The tenant admitted the putting up of signboards and the fixing up of racks but he denied that he had caused any damage. Whatever he had done was with the consent of the landlord and the claim put forward by the landlord was only an attempt to gain the sympathy of the Court. The Engineer, PW2 noted that new racks were fixed by making holes in floor walls and also in the beams. Two new massive sign board were fixed in the front and side. Hobs were made in the parapet wall of the first floor and angle irons supporting the sign boards were fixed. The parapet wall was only 2 thick and it could not take the weight of the huge sign boards and the parapet wall may collapse at any time. Two new massive sign board were fixed in the front and side. Hobs were made in the parapet wall of the first floor and angle irons supporting the sign boards were fixed. The parapet wall was only 2 thick and it could not take the weight of the huge sign boards and the parapet wall may collapse at any time. New electric connection has been given by making holes in the foundation and the wall in front and a new meter board had been fixed. This report of PW2 was not sought to be corroborated by any other material to show that there was any danger because of the taking of a new electric connection or by the increase in load. It is true that for the purpose of his trade, the tenant fixed new racks by making holes in the floor, the walls and in the beams. But in the absence of any other material, it cannot be said to be the commission of the acts 6f waste as are likely to impair materially the value and utility of the building. We must say that there is hardly any evidence on the side of the landlord to show that there was material impairment, either in the value or the utility of the building by the acts of the tenant. The mere fixing of sign-boards outside the shop by taking support from the parapet wall, cannot be considered to be an act of waste which is likely to impair materially the value or utility of the building. The report of the Engineer, PW-2 merely asserts that the parapet wall will collapse at any time. There is no supporting evidence in respect of that assertion. Ex.B1-letter of the landlord giving permission to the tenant to fix boards, cannot also be ignored in this context. Moreover, when a trade is carried on in a premises, that too in an important locality in a city, it is obvious that the tenant would have to fix sign boards outside, to attract customers. These are days of fierce competition and unless the premises is made attractive by lighting and other means, a trader would not be in a position to attract customers or survive in the trade. These are days of fierce competition and unless the premises is made attractive by lighting and other means, a trader would not be in a position to attract customers or survive in the trade. Therefore, the acts of the tenant established, are merely acts which are consistent with the needs of the tenant who has taken the premises on rent for purpose of a trade in leather goods and shoes and in furtherance of the prospects of that trade. The fixing of racks inside the premises even by drilling holes in the walls of beams cannot be said to be acts which are themselves acts of waste as are likely to impair materially the value and utility of the building. Broadly, a structural alteration however slight should be involved to attract Section 10(2)(iii) of the Act. In fact, we see hardly any pleading or evidence in this case which would justify a conclusion that the acts of the tenant amount to such acts of waste as are likely to impair materially the value and utility of the building. In G. Arunanchalam (died) through L.Rs. and Anr. v. Thondarperienambi and Anr. dealing with the same provision, this Court held that the fixing of rolling shutters by the tenant in place of the wooden plank of the front door by itself did not amount to a structural alteration that impaired the value of the building and no eviction could be ordered under Section 10(2)(iii) of the Act. Of course, in that case there was also a report by an Engineer that the structural alteration made for fixing the rolling shutter, did not impair the value of the building. In the context of the Kerala statute which spoke of impairment in the value or utility of the building materially and permanent, this Court has recently held in G. Raghunathan v. K.V. Varghese, that the fixing up of rolling shutter and doing of the allied acts referred to in that decision, would not amount to user that materially and permanently impairs the value or utility of the building. The Act here only speaks of acts of waste as are likely to impair materially the value and utility of the building. The impairment need not to be permanent. But when then, it appears to us that it must really be a material impairment in the value or utility of the building. The Act here only speaks of acts of waste as are likely to impair materially the value and utility of the building. The impairment need not to be permanent. But when then, it appears to us that it must really be a material impairment in the value or utility of the building. In British Motor Car Co. v. Madan Lal Saggi (Dead) and Anr., this Court considered the aspect of material alteration or damage in the context of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 . In the lease deed in that case, there was a covenant that the lessee will not make any addition or alteration or change in the building during the period of the tenancy. This Court referred to Om Parkash v. Amar Singh, Om Pal v. Anand Swarup, Waryam Singh v. Baldev Singh, Gurbachan Singh v. Shivalik Rubber Industries, Vipin Kumar v. Roshan Lal Anand, and held: When a construction is alleged to have materially impaired the value and utility of the premises, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utiliatarian aspect of the building. There is hardly any material in the present case on the basis of which the Court could come to the conclusion that the act of the tenant here has amounted to commission of such acts of waste as are likely to impair materially the value and utility of the building. The Rent Controller and the High Court have not properly applied their minds to the relevant aspects in the context of the statute and have acted without jurisdiction in passing an order of eviction under Section 10(2)(iii) of the Act. The Appellate Authority was justified in denying an order of eviction to the landlord on this ground. 19. Learned senior counsel appearing on behalf of the petitioner placed reliance on the judgment of Honble Supreme Court in the case of Waryam Singh v. Baldev Singh, to contend that every additional alteration does not materially impair the value and utility. Merely because some additions or alterations are made it cannot be presumed or inferred that value and utility of the building has been impaired unless it is proved on record that the value or utility has been materially impaired. Merely because some additions or alterations are made it cannot be presumed or inferred that value and utility of the building has been impaired unless it is proved on record that the value or utility has been materially impaired. Honble Supreme Court in the case referred to above was pleased to lay down as under: 11. Mr. Walia next relied upon the case of Narain Singh v. Bakson Laboratories, 1981 C.L.J. (Civil) 414. In that case, the tenant had enclosed the verandah on the front and back side of the building and had opened a door by breaking the wall of one room. It was held that this diminished the value of the premises. With great respect to the learned Judges concerned, we find ourselves unable to accept this proposition. As stated above it is not every addition or alteration which could be said to materially impair value or utility. It has to be proved that the value or utility has been materially impaired. Merely because some additions or alteration are made it cannot be presumed or inferred that the value or utility of the building has been impaired. This authority cannot be said to be laying down the correct proposition of law. 20. Mr. Amarjeet Markan, learned Counsel appearing on behalf of the respondent land lord, however, contended that the respondent landlord while appearing in the witness box deposed with regard to the construction made by the tenant in the shop, He stated that AW5 Varinder Kumar Gupta categorically deposed that there was permanent alteration made in the shop. The contention of learned Counsel for the respondent, therefore, was that it was proved on record that because of the wooden work carried out in the shop in question no fresh air and light could reach the shop. He also stated that from the photographs it is proved on record that partition has been done by raising a brick wall and on the said brick wall a wooden frame has been fixed on which a door was fixed. Steps were also constructed on either side of the wall. He also referred to the statement made in the cross-examination to contend that in case the construction is re-,moved the floor was materially to be damaged. Steps were also constructed on either side of the wall. He also referred to the statement made in the cross-examination to contend that in case the construction is re-,moved the floor was materially to be damaged. He also contended that shelves were constructed and thus, the learned courts below were right in coming to the conclusion that the petitioner has impaired the value and utility of the shop. 21. Learned Counsel for the respondent placed reliance on the. judgment of Honble Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand, wherein Honble Supreme Court has been pleased to lay down that when the tenant of the shop constructed a wall by putting a door which stopped the flow of air and light inference has to be drawn that it impaired the valueand utility of the building. 22. Learned Counsel for the respondent further placed reliance on the judgment of this Court in the case of M/s Victor Industries and Ors. v. Banarasi Lal, to contend that once the respondent landlord was able to prove the factum of material alteration made by the tenant then the court could infer its adverse effect on the value and utility of the building keeping in view the nature of alteration. Such alteration has to be seen from the point of view of the landlord. The contention of the learned Counsel for the respondent, therefore, was that in the present case as the tenant has raised a wall and placed a wooden frame thereon and also fixed a door thereon the finding recorded by the learned Courts below therefore is totally justified in the facts and circumstances of the case. 23. Learned Counsel for the respondent also contended that concurrent finding of the Courts below that the tenant made alterations which materially impaired the value and utility of the building is not likely to he interfered with in the revision. 24. Learned Counsel for the respondent also referred to the judgment of this Court in the case of Satish Kumar and Co. v. Krishan Gopal 1998 (2) R.C.R. (Rent) 386 : 1998(2) R.L.R. 237, in support of this contention. The plea of the learned Counsel for the respondent, therefore, was that when unauthorized construction is made by the tenant he would be liable to be evicted no matter the said construction increased the value of the building. v. Krishan Gopal 1998 (2) R.C.R. (Rent) 386 : 1998(2) R.L.R. 237, in support of this contention. The plea of the learned Counsel for the respondent, therefore, was that when unauthorized construction is made by the tenant he would be liable to be evicted no matter the said construction increased the value of the building. The utility of the building is to be seen from the point of view of the landlord and not of the tenant. On consideration of the matter, I find force in the contentions raised by the learned senior counsel for the petitioner. 25. It may be seen in the present case that the only allegations are that the petitioner has constructed a temporary wall on which a wooden frame has been placed. It is admitted by the expert appearing on behalf of the landlord that the wooden structure is temporary structure. He has also failed to show that the alleged wall constructed in order to stop the rainy water and sewerage water is based on any foundation. The said wall is also temporary structure. The evidence brought on record shows that the temporary alterations made by the tenant are of such nature which were necessary for running of the business of the tenant and therefore, could by no stretch of imagination be said to be alteration which impaired the value and utility of the building. 26. As regards the question of concurrent finding of fact, needless to say that the Honble Division Bench of this Court in the case of Gurbachan Singh v. Shvialak Rubber Industries, relied upon by the learned Counsel for the respondent-landlord itself shows that though the fact the construction has been made by the tenant is a finding of fact but the question whether addition and alteration materially impaired the value and utility of the premises is a mixed question of law and fact. 27. Honble Supreme Court in the case of P.S. Pareed Kaka and Ors. v. Shafee Ahmed Saheb, has been pleased to lay down that in the revisional jurisdiction the High Court has power to re-appreciate the evidence and interfere with the findings of fact. The revisional powers of the High Court are wider than the power conferred under Section 115 of the Code of Civil Procedure. 28. v. Shafee Ahmed Saheb, has been pleased to lay down that in the revisional jurisdiction the High Court has power to re-appreciate the evidence and interfere with the findings of fact. The revisional powers of the High Court are wider than the power conferred under Section 115 of the Code of Civil Procedure. 28. As already observed above in the present case the evidence brought on record clearly showed that the alleged alterations were purely temporary in nature and were necessary for running the business of the petitioner and therefore, the findings of the learned Courts below that the alterations made by the tenant impaired the value and utility of the building also cannot be sustained and thus, the findings on issue No. 2 also stand reversed. 29. In view of what has been stated above, this revision is allowed. The orders passed by the learned Rent Controller and learned Appellate Authority are set aside. The petition filed by the landlord for eviction is ordered to be dismissed.