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2008 DIGILAW 1676 (PNJ)

Manjeet Kaur v. Punjab Sales Corporation -

2008-09-29

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This order shall dispose of CR Nos. 126 to 128 of 1987 and 922 of 1987 titled Manjeet Kaur v. Punjab Sales Corporation; Manjeet Kaur v. Aggarwal Steel Traders; Manjeet Kaur v. Dharam Sales Corporation and Sarvjeet Singh Talwar v. Steel Sales Syndicate, respectively, as common questions of law and facts are involved in all these petitions. For brevity facts are being taken from CR No. 126 of 1987. 2. The petitioner landlord filed a petition under section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) for eviction of the respondent from the shop on the ground that the respondent tenant has occupied the shop in dispute at a monthly rent of Rs. 150/- per month. Shop was said to be part of complex consisting of four shops with one common stair-case. Other shops are under the tenancy of tenants who are respondents in other three revision petitions. 3. It was claimed that the respondents have not paid rent after June, 1983 and also on the ground that the petitioner wanted to construct a chobara to have a second story but the tenant has obstructed the construction and blocked the stair-case. 4. It is claimed that suit for permanent injunction was filed for restraining the respondent-tenant from obstructing her from raising construction and temporary injunction was issued. It was claimed that respondent tenant violated that injunction order. It was claimed that the act of the respondent amounts to impairing and diminishing the value and utility of the shop. Arrears of rent along with interest and costs was tendered on the first date of hearing and thus, the ground of non-payment of rent ceased to exist. 5. The petition was contested on the ground that the stair-case and the roof are part of the tenant premises and therefore, the petitioner had no right to raise construction on the roof of the shop. It was also claimed that the petition was not maintainable and mala fide. 6. After filing of rejoinder by the petitioner learned Rent Controller framed the following issues : 1. Whether the respondent is liable to ejectment on the grounds mentioned in para No. 3 of the application ? 2. Relief. 7. The petitioner in support of her case examined Jatinder Singh AW 1, Dr. 6. After filing of rejoinder by the petitioner learned Rent Controller framed the following issues : 1. Whether the respondent is liable to ejectment on the grounds mentioned in para No. 3 of the application ? 2. Relief. 7. The petitioner in support of her case examined Jatinder Singh AW 1, Dr. Gurmukh Singh AW 2, Sucha Singh AW 3, Bhan Dass AW 4, Ajmer Singh AW 5, Ajit Singh AW 6 and herself appeared as AW 7. Siri Ram, respondent appeared in the witness box as his own witness as RW 1. 8. The plea of the tenant that the roof was part of the tenanted premises did not find favour and the learned Rent Controller came to the conclusion that there was no evidence on record to show that the respondent tenant used roof of the shop. Therefore, a finding was recorded that the roof of the shop was not included in tenancy. Learned Rent Controller also held that it is only lower portion of the shop which was rented out to the tenant. However, with regard to the plea of the petitioner that merely by obstructing the landlord to raise construction that the value and utility of the shop has been impaired, the learned Rent Controller held that even if the allegations of the petitioner are taken as true it cannot be said that any damage has been caused to the shop which was in possession of the tenant nor any act could be attributed which would amount to impairing the value and utility of the shop. Thus, findings were recorded against the petitioner. Consequently, the petition was dismissed. 9. The petitioner preferred an appeal against the orders passed by the learned Rent Controller. Learned Appellate Authority also affirmed the findings recorded by the learned trial court by observing as under : "11. Learned Rent Controller, therefore, rightly negatived the plea of the appellant to seek ejectment of the respondent because of the said act of the respondent in not allowing her to go to the roof tops of the shops for constructing chobaras. The ratio of the Single Bench decision of our High Court in Gopi Ram v. Prem Kumar, 1985(1) PLR 496 relied upon by the learned counsel for the appellant is really of no help to support the said plea. The ratio of the Single Bench decision of our High Court in Gopi Ram v. Prem Kumar, 1985(1) PLR 496 relied upon by the learned counsel for the appellant is really of no help to support the said plea. In that case, the tenant had closed the stairs going to the roof of the demised with the result that access of the roof of that shop could be either from the roof of an adjoining shop or by the use of a ladder. This ground was taken as one of the three grounds for ejectment of the tenant contending that it was likely to impair materially the value or utility of the demised shop. This view taken by the appellate authority was upheld by the High Court. 12. As is evident, from the facts and circumstances of Gopi Rams case (supra), the tenant therein had permanently closed the stair and roofed it, but that is not even allegation of the appellant in this case. On the contrary, her case is that she is not being allowed access to the roof top of the demised shop through the stair case common to the complex of four shops. The tenant has asserted his right to do so that she cannot go to the roof tops for raising chobaras without his consent. She may have remedy in the civil court to restrain the respondent from doing so if it is found that the use of roof top was expressly or by necessary implication reserved for the said purpose. The stair case for access to the roof top in the present case continues to exist as before without any addiction or alteration having been made therein." 10. Ms. Himani Sarin, learned counsel appearing on behalf of the petitioner has challenged the orders passed by the learned courts below by referring to the provisions of Section 13 of the Act wherein provision has been made for eviction of a tenant if the value and utility of the building is impaired which reads as under : "13. Eviction of tenants - (2) xx xx (i) xx xx (ii) xx xx (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or" 11. Eviction of tenants - (2) xx xx (i) xx xx (ii) xx xx (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or" 11. The contention of the learned counsel for the petitioner is that the words used are "likely to impair materially the value or utility of the building or rented premises". The contention of the learned counsel for the petitioner, therefore, is that the reading of the provisions of the Act would show that the words used are "acts of the tenant which are likely to impair materially the value or utility of the building". The act would, thus, include any action taken by the tenant. The contention of the learned counsel for the petitioner, therefore, was that the act of tenant in blocking the stair-case is such act which impaired the value and utility of the building as the petitioner landlord has not been allowed to use the roof for construction. 12. It is also the contention of the learned counsel for the petitioner that the act of the tenant in closing and shutting the stair-case would be such an act to hold that the value and utility of the shop has been impaired. 13. In support of this contention reliance has been placed on the judgment of this court in the case of Gopi Ram v. Prem Kumar and others, 1985(1) Rent Law Reporter 496, wherein this court has been pleased to lay down as under : "3..............But is one thing to make small hole in an intervening wall in the shop and quite another thing to close the stairs of a shop and to roof the same, so that access to the roof of the shop is rendered impossible, with the result that whatever might happen on or with the roof of the shop the owner of the property is either at the mercy of a neighbouring shop owner or may be compelled to use a ladder. But even if he can use a ladder, I should have thought that a shop would have more value if there was a ready access with the stairs to its roof than that shop with no such access. But even if he can use a ladder, I should have thought that a shop would have more value if there was a ready access with the stairs to its roof than that shop with no such access. It has then been said that the tenant may remove this obstruction at a small cost, but this case has been pending for quite a long time and there has been no such removal. So in so far as the second ground is concerned, I agree with the approach of the Appellate Authority that by closing and shutting of the stairs and roofing the same, thus making impossible the user of the same for going to the roof of the demised shop, is an act of the tenant that is likely to impair materially both the value and the utility of the shop.............." 14. Reliance has also been placed on a judgment of this court in the case of Baij Nath v. Shail Kumari, 2003(1) RCR(Rent) 197 (P&H), wherein this court has been pleased to lay down as under : "9. A perusal of sub-clause (iii) of sub-section (2) of Section 13 of the Act shows that if the tenant-petitioner has committed such act that are likely to impair materially the value and utility of a rented building, then the Rent Controller would be well within his jurisdiction to direct the tenant to put the landlord in possession of the building. The judgment of the Supreme Court in Om Pals case (supra), on which reliance has been placed by the learned counsel for the tenant-petitioner has concluded that the landlord must fulfill certain conditions before it could be concluded that the case of the ejectment o the tenant has been made out. The observations of their Lordship in Om Pals case (supra) read as under: "It is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract Section 13(2) (iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. In order to attract Section 13(2) (iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building, 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 utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord. In the present case the appellant-tenant examined an expert, a retired engineer, to prove that the parchhati was only a temporary wooden fixture which could be easily removed at any time without any damage being used to the walls of the building. Having regard to the nature of the temporary construction put up by the appellant and the evidence of the expert witness examined by him which remains uncontroverted by any experts evidence on the respondents side, it must be held that there was no material impairment to attract Section 13(2)(iii). There was no basis for contrary findings rendered by the rent Controller as well as the appellant authority and the High Court erred in accepting those findings without applying the correct principles of laws underlying Section 13(2)(iii)." 10. The above quoted observations of the Supreme Court would not apply to the facts of the present case because even if it is assumed that the construction raised by the tenant petitioner is temporary in nature, it cannot be said that it has not materially impaired the utility and value of the building because the landlady respondent is left with no access to reach the roof through the stair case. Moreover, the express stipulation in the rent note Ex.R-2 has been violated. It is further evident that a balakhana constructed on the first floor of the premises has been removed by the tenant-petitioner, which at the time of execution of rent note was in existence. The acts of tenant- petitioner, are such that the provisions of clause (iii) of sub-section (2) of Section 13 would squarely apply to the facts of the present case. The acts of tenant- petitioner, are such that the provisions of clause (iii) of sub-section (2) of Section 13 would squarely apply to the facts of the present case. In this regard, it has to be remembered that the impairment of the value or utility of the building has to be examined from the point or view of the landlord and not of tenant. The observations of their Lordships in Vipin Kumar v. Roshan Lal Anand, (1993)2 SCC 614 : 1993(1) RCR(Rent) 675 (SC) read as under : "The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of clause (iii) of sub- section (2) of Section 13 is impairment of the building due to acts committed by the tenants and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises." 15. Thus, the contention of the learned counsel for the petitioner is that the order passed by the learned courts below deserve to be set aside. 16. Mr. S.S. Virk, learned counsel for the respondent, however, contended that the orders passed by the learned courts below are well reasoned and do not call for any interference by this court. The contention of the learned counsel for the respondent is that in order to succeed it is incumbent upon the landlord to prove additions and alterations made by the tenant and further to prove that these additions and alterations impaired the value and utility of the building. 17. In support of this contention reliance has been placed on the judgment of Honble Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand and others, 1993(1) RCR(Rent) 675 : 1993(2) PLR 349, wherein Honble Supreme Court has been pleased to lay down as under : "3. Clause 3 of sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land", the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. Clause 3 of sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land", the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of clause (iii) of sub- section (2) of Section 13 is impairment of the building due to acts committed by the tenants and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises. It is contended by Mr. Prem Malhotra that the landlord should prove as to how it is materially effected and that there is no evidence adduced by the landlord. We find no force in the contention. 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 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. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that sub-section (2) of Section 13 gives discretion to the Rent Controller to the order eviction while the cases covered under sub-section (3) of Section 13 it is made mandatory to direct eviction of the tenant,. Therefore, the Rent Controller has to independently consider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Controller to order eviction in his favour. The landlord had not proved such facts in his favour. Therefore, the Court had committed illegality in granting the decree of ejectment. We find no force in the contention. Undoubtedly the statute, on proof of facts, gives discretion to the court, by Section 13(2) and made mandatory in case covered by Section 13(3), to order eviction. In a given set of facts the Rent Controller, despite finding that the tenant committed such acts which may impair the value or utility of the building yet may refuse to grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may not warrant eviction and then the burden shifts on the landlord to rebut those facts or circumstances. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellant. So no fault can be laid at the Rent Controllers failure to exercise the discretion. In Om Prakashs case the words "materially altered" under Section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952, came up for consideration. This court held that the nature and character of change or alteration of the building must be of an essential and important nature. In determining the question the court must address itself to the nature, character of the construction and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. In considering that language it was held that putting up a door to the verandah is not a material alteration. The ratio thus renders little assistance to the facts of the case." 18. In considering that language it was held that putting up a door to the verandah is not a material alteration. The ratio thus renders little assistance to the facts of the case." 18. On consideration of the matter, I find that in order to succeed the landlord is required to prove that the act of the tenant has resulted to diminish in quality, strength or value substantially. Word impair cannot be said to have a fixed meaning and is a relative term of holding different meaning in different context and situation. Impairing the utility of the building is to be judged and determined in given facts and circumstances. However, the point of view of the landlord has to be kept in view. 19. Now in this back-ground of the matter, if the contentions of the learned counsel are the parties are taken into consideration it has to beheld that there is no force in the contention raised by the learned counsel for the petitioner. Firstly, the act attributed to the petitioner is not with respect of the tenanted premises. It has also not been shown as to which of the four tenants had blocked the stair-case. 20. In the present case there has been no positive act of construction or demolition to hold that there has been impairment of value and utility. It is only the act of the tenant in putting a lock and the said act at best is a civil wrong to the person concerned and not to the building. It is also not in dispute that violation of the civil right has been challenged by the petitioner before the civil court and the parties would be bound by the decision taken therein. 21. In view of what has been stated above, there is no force in the contentions raised by the learned counsel for the petitioner that by locking the stair-case the value and utility of the tenanted premises has been in any way impaired. Rather it is a case of landlord herself that the stair-case and the roof is not part of tenanted premises. The authorities relied upon by the petitioner would not be applicable to the facts of the present case. Rather it is a case of landlord herself that the stair-case and the roof is not part of tenanted premises. The authorities relied upon by the petitioner would not be applicable to the facts of the present case. In the case of Baij Nath v. Shail Kumari (supra) the tenant of the shop had closed the stairs with wooden plank, thus, permanently blocking the access to the roof though the construction was said to be temporary in nature. It was held that the tenant was liable to eviction. However, in the present case there is no construction, whatsoever, whether permanent or temporary in nature. Similarly in Gopi Rams case (supra) the tenant has closed the stairs by shutting the same. Thus, by way of permanent structure the landlord had been completely denied the access to the roof. It was in that situation it was held that the value and utility of the building had been impaired. 22. In the present case no act has been attributed to the petitioner with respect to the tenanted premises. The landlord has sought eviction of 4 tenants on the plea of blocking of the passage though with regard to this civil wrong the matter is pending in the civil court. 23. The findings recorded by the learned courts below, therefore, do not call for any interference. Dismissed.