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Punjab High Court · body

2009 DIGILAW 167 (PNJ)

Adhishwar Parshad Jain v. Inder Parkash

2009-01-21

K.KANNAN

body2009
Judgment K.Kannan, J. 1. I. Scope of enquiry : The only surviving point for consideration before this Court in revision petition is whether the landlord established that the tenant has done acts which have materially impaired the tenanted premises. The Rent Controller found in favour of the landlord and the Appellate Authority reversed the decision finding, inter alia, that whatever construction that had been effected did not materially affect the building and in any event, the landlord himself had acquiesced in the alterations in the building carried out by the tenant. The landlord who suffered a reversal of fortunes at the Appellate Court is the revision-petitioner before this Court. II. Landlords complaint : 2. The impairment complained of in the rent control petition is stated in the following words : "That the tenant has committed such acts without consent of the landlord which has materially impaired the value and utility of the tenanted premises. He has made material alterations by undergoing construction of permanent nature without consent of the landlord in the building. The tenant has removed the existing roof of the building in question and also removed the front wooden door frame and doors alongwith little wall over door frame which were in existence since the inception of the tenancy and has raised the all round walls of the shop by 1-1/2 feet and has constructed new roof in the inner khan as well as of front khan of tin shed and has widened the front gate and fitted a shutter by changing altogether the masonary work. He has also broken the old existing floor of the shop and has lower down its height by removing material considerably and has constructed a totally new floor. All these material alterations were made without the consent of the landlord petitioner between Oct., 1980 to Jan. 1981 before starting a cloth show room under the name and style of M/s Singla Cloth House, Sadar Bazar Gurgaon in April, 1981. The tenant has assumed the function of the landlord without his consent and caused great loss to his building in question. The tenant is liable to be ejected". III. 1981 before starting a cloth show room under the name and style of M/s Singla Cloth House, Sadar Bazar Gurgaon in April, 1981. The tenant has assumed the function of the landlord without his consent and caused great loss to his building in question. The tenant is liable to be ejected". III. Scope of previous litigation : 3 Even before the rent control proceedings there had been earlier an attempt by the Municipal Authorities to pull down the building on the ground that it was uninhabitable and the tenant and several other tenants in a row of shops had filed a civil suit against the landlord and the Municipal Authority for an injunction restraining the authorities from doing any act which could hamper their continuance in possession. The Civil Courts decision ultimately went in favour of the tenants granting the relief of injunction as prayed for. At that time, the tenants had secured an architects report which was also examined to say that the building was in a fit condition for occupation and there was no justified necessity under any of the provisions of the local Acts to demolish the construction at the instance of the municipality. IV. Appellate Authoritys reasoning for reversing the decision : 4. Before the Rent Controller when the tenant had filed a petition in the year 1984, the landlord examined the very same architect who had earlier given a report in favour of the tenants to speak about three aspects, which, according to the landlord, had caused material impairment of the building : (i) the flooring of the construction had been changed, (ii) the ceiling had been raised by about 2 feet and (iii) a little wall over the door frame at the front had been removed. The Rent Controller on consideration of the evidence placed before him accepted the contention of the landlord. The Appellate Authority reversed the finding on a reasoning that in respect of everyone of the alleged changes attributed to the tenant, the landlord had not objected immediately and the so-called changes that had been effected between the year October 1980 to January, 1981 as contended by the landlord could not be a ground of complaint in petition which was filed on 26.3.1984. This according to the Appellate Authority was sufficient to infer that there had been acquiescence on the part of the landlord. This according to the Appellate Authority was sufficient to infer that there had been acquiescence on the part of the landlord. In particular, the Appellate Authority had stated that the level of the roof of back portion of the shop was two inches higher than the adjoining shops in the same row and it was also not disputed that the floor of back portion of the shop was lower by 1-1/2 feet than the other shops. The Appellate Authority reasoned that the statement of Subhash Sehgal who was a star witness of the landlord and who had appeared in the earlier proceedings between the parties that the raising of ceiling and the lowering of flooring had been effected subsequent to the earlier proceedings could not be true by virtue of the fact that in the statement of one Chain Sukh Dass who had given evidence earlier on 21.7.1979 in the civil suit that the roof of the level of the shop was higher than the other shops and floor was lower than other shop. This statement according to the Appellate Authority clinched the matter that these changes could not have been effected in the manner spoken to by the landlord. Instead of even examining whether these changes had been effected by the tenant, the Appellate Authority reasons that the petitioner Adishwar Parshad Jain had admitted that when these alterations had been made by the tenant, he had not resorted to litigation nor obtained any stay from the Court. The Appellate Authority further reasoned that if the landlord had been absent, even his brothers as co-owners had not taken any action. The Appellate Authority also stated that there was no evidence that when the alterations had been done, he had removed the materials from the shop to some other premises. The Appellate Authority observed that the landlord had not filed the original plans for the house to indicate the height of the building and nature of flooring and in the absence of the same, it was difficult to attribute that the tenant could have done the same. The Appellate Authority also reasoned that the evidence of the architect himself did not evoke confidence because he had admitted in findings that he had not stepped into the building while inspecting the building afresh before drawing of a report. The Appellate Authority also reasoned that the evidence of the architect himself did not evoke confidence because he had admitted in findings that he had not stepped into the building while inspecting the building afresh before drawing of a report. Adverting to the witnesses on the side of the respondent, the Appellate Authority stated that the tenant had not carried out any structural changes and he had merely fitted the racks in the entire shop. He, however, admitted to the fact that in the adjoining shops which were also owned by the same landlord, there was merely a wooden front door while at the demised premises a steel shutter had been fixed. Evidently the attempt of the landlord was to show that the wooden door had been removed and in its place a rolling shutter had been fixed by the tenant without his concurrence. The Appellate Authority concluded that the walls of the shop could not have been raised without the permission of the Municipal Committee but the tiny wall which was in existence at some point of time had been removed even earlier to 1980 after which the landlord was receiving the rent without demur. The Appellate Authority, however, stated that there was no definite proof as to when this had been removed and the landlord must be deemed to have acquiesced and waived. Towards the end, the Appellate Authority stated that the landlord had failed to establish that the above alterations were made by the tenant during the period 1980 to 1981..The findings of the Rent Controller were, therefore, set aside. V. Grounds of attack by revision petitioner : 5. The learned Senior Counsel for the revision-petitioner contends that the lower Appellate Court which found that there had been structural alterations could not have rendered a finding in favour of the tenant by merely stating that the landlord had acquiesced such alterations even without a specific plea of waiver and acquiescence by the tenant in the written statement. By reading of the Appellate Court judgment, it could be seen that the Appellate Authority had prevaricated in some measure about whether the structural alterations had been made by the tenant or the landlord and not finding enough support through reasoning of the Rent Controller which adopted another course that even if there had been alterations there was waiver. By reading of the Appellate Court judgment, it could be seen that the Appellate Authority had prevaricated in some measure about whether the structural alterations had been made by the tenant or the landlord and not finding enough support through reasoning of the Rent Controller which adopted another course that even if there had been alterations there was waiver. The landlord himself had placed weight of reliance on evidence of the architect that some structural changes had been made and therefore, the changes which had been effected by the tenant without the concurrent of the landlord amounted to material impairment giving the right to the landlord to obtain eviction. VI. Imperatives for this Court to make appraisal on the basis of evidence available : 6. Having regard to an unsatisfactory approach of the Rent Controller of not sifting the evidence of all witnesses and making a proper inference and the approach of the Appellate Court in making contradictory statements about the landlord as not having proved the contentions of the alterations alleged to have been made by the tenant between the year 1980-1981 and at the same time stating elsewhere that the tenants alterations had been acquiesced by the landlord leaves me with no option but to examine the evidence led by the respective parties before the Rent Controller and examining them afresh. At the stage of revision, the latitude of enquiry normally does not traverse beyond examining the legality and propriety of the order and the finding regarding whether there had been material impairment or not would merely be taken only as statement of fact that would call for no inference. In this case, there is no definite finding by the Appellate Authority whether there had been any structural alterations or not. At one stage, he says the landlord had not established any changes and at another stage, he stated that there had been acquiescence. If the findings of the Appellate Authority could, therefore, be interfered with, then if at least the appreciation of evidence by the Rent Controller had been rendered by proper appreciation of evidence, the job would have been simpler by upholding the decision of the Rent Controller. If the findings of the Appellate Authority could, therefore, be interfered with, then if at least the appreciation of evidence by the Rent Controller had been rendered by proper appreciation of evidence, the job would have been simpler by upholding the decision of the Rent Controller. As I pointed out that there has been an unrealistic reliance on evidence of the architect who had been shown as a person that draw up a report even without entering upon the building at the time when the report was to be filed before the Rent Controller. In fact he had even committed a serious error in assuming that there was a grain shop in one portion of the building when he was mixing up his own evidence with reference to the existence of another shop where another tenant by name Ghan Shyam had joined with this tenant and had filed a civil suit against the same landlord and the adjoining shop of grain business of another tenant was mistakenly understood and spoken to in the evidence before the Rent Controller that this tenant was running a grain business in one portion of the shop. So much for the poor quality of evidence of the architect, on the basis of which the Rent Controller had granted the order of eviction. VII. Vital aspects that require examination : 7. In view of the unsatisfactory mode of disposal both by the Rent Controller and by the Appellate Authority, I ventured to look into all the documents and the evidence of witnesses as regards three possible aspects in the case that required examination: (i) whether the landlord had increased the ceiling of the building; (ii) whether the flooring had been tampered by the tenant by lowering the flooring and (iii) whether the landlord had removed any portion of the wall in the building. On each of these aspects, it is possible to render a clear finding. These changes were reported to have been made by the tenant between the year 1980-81 and finding that these so-called changes had existed even prior to the relevant period, the learned Senior Counsel of the revision-petitioner contends that there could be a mistake in the petition regarding the time exactly when the tenant had made the structural alterations and that ought not to be put out against the landlord to reject his claim for eviction. 8. 8. The period during which the tenant was reported to have effected the material alterations cannot be swept under carpet as it was the only ground on which the eviction had been sought. It is an admitted case that there had been an attempt by the Municipal Authority to direct the construction to be pulled down on the ground that it was uninhabitable and later at the intervention of the Civil Courts decree the action was stopped. The earliest evidence regarding the nature of building had been available at the time of the institution of the suit in the year 1977 and if it showed that no other alterations had been made subsequent to the civil suit, then it could not be stated that the tenant had committed any act that imperiled the structure to offer a ground of eviction to the landlord. The best method of proving that the ceiling had been removed and new ceiling was made could have been established most easily by definite evidence about the height of the building as it originally existed. It was in evidence even during the civil suit the height of the ceiling in occupation of the tenant was found to be more than the height of the building in the adjoining shops. It was not the landlords case that the row of the building which he owned was constructed at the same time. If, even during the pendency of the civil suit, the height of the ceiling was different from the adjoining building, it is not possible to contend that the height of the building was increased between the period 1980-1981. If such a contention is made, it is obviously a false contention. Even as regards the flooring there is no definite evidence that the flooring had been changed by lowering it by 1-1/2 feet. This is not again brought out through any documentary evidence or report of the architect. The architect admits that he did not step into the building to note down the feature that the flooring had been changed subsequent to the report when he gave evidence in favour of the tenants in the civil suit. A matter of conjecture by a landlord cannot substitute the requirement of proof to pitch-fork a tenant with an order of eviction. Even the removal of the wall has not been stated in so many express words. A matter of conjecture by a landlord cannot substitute the requirement of proof to pitch-fork a tenant with an order of eviction. Even the removal of the wall has not been stated in so many express words. The architect had given a confusing evidence that at the time when there was a wall, there was a grain business and after removing the wall, the landlord was carrying on a single business in textiles. It was not the landlords case that the building existed in two portions. On the other hand, it is admitted by the landlord in the chief examination that the tenanted building was in one khan and was in the same condition right from the day of its construction and no additions and improvements had been made in the building. Even the attempt of the landlord to say that there was an invitation card in the year 1981 that showed that the tenant had carried out some alterations and opened a new shop on 5.4.1981 as evident by Ex.A-4 cannot be true. It is a clear misreading of the recitals in the invitation card. The invitation card merely states the commencement of a new agency for Bheelwara Terene Suitings and Shirtings and does not refer to the shop as having been newly inaugurated. Even the photographs relied upon by the landlord purporting to show that tenant was effecting alterations in the building were captured by a photographer on 22.10.1980 and do not show that any alterations had been done in a big way except that some of the photographs show some persons sitting on the ceiling. It does not show that the ceiling itself had been removed and any masonary work had been undertaken for laying a new ceiling. In fact, it would be risky to make any inferences about a building act by producing photographs without definite evidence as to who carried out that masonary work and to what extent it could be stated that it had impaired the condition of the building. VIII. Every alteration is not material impairment: 9. In fact, it would be risky to make any inferences about a building act by producing photographs without definite evidence as to who carried out that masonary work and to what extent it could be stated that it had impaired the condition of the building. VIII. Every alteration is not material impairment: 9. It is difficult to find that any alterations allegedly have been made by the tenant to fall foul of the ground of eviction that it spelt out through Section 13(2)(iii), which if reproduced reads : "that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land.- The tenant in shop business such as the business of textiles and suitings would not allow his material to be show-cased in a dilapidated poor building. Any steps by a tenant on his own initiative to ensure that there is no leakage in the ceiling or making some wooden racks and almirahs for storing his goods or ensuring better safety to a building by providing for rolling shutters ought not to be understood as acts that materially impaired the value or utility of the building. Both the learned senior counsel for the landlord and tenant have cited extensively judgments of this Court and Honble Supreme Court to bring weight to the respective arguments." IX. Consideration of authorities : 10 The learned Senior Counsel for the revision petitioner refers to the decision in Ram Dass v. Ishwar Chander and others, 1988(1) RCR(Rent) 625 : AIR 1988 SC 1422, which held, while adverting to Section 15(5) of the East Punjab Rent Restriction Act, 1949, that in appropriate case High Court could reappraise evidence, if findings of the Appellate Court were found to be infirm in law. In fact, this is precisely the exercise undertaken in this revision petition and I have already adverted to the justification for the same in the earlier paragraphs. There have been decisions on either side about what constitutes material impairment of the building. A decision of this Court in Shiv Ram v. Sham Lal and another, 2003(2) RCR(Rent) 285 (P&H) states that a tenant raising a wall and converting a hall into two rooms impairs the utility though not the value of the construction and this was to be considered only from the point of view of the landlord and no one else. A decision of this Court in Shiv Ram v. Sham Lal and another, 2003(2) RCR(Rent) 285 (P&H) states that a tenant raising a wall and converting a hall into two rooms impairs the utility though not the value of the construction and this was to be considered only from the point of view of the landlord and no one else. In the absence of a specific plea regarding acquiescence and waiver, the learned Senior Counsel for re vision-petitioner also refers to a decision of this Court in Banke Ram v. Shrimati Sarasvati Devi, 1977(1) RCR(Rent) 595 : 1977 All India R.C.J. 332 that the principles of pleadings under Order VI Rule 2 shall be taken as incorporated in rent control proceedings also and it was essential for an authority to plead the ingredients of any facts on which he wants to rely, on proof of which may produce evidence. The reference to this decision does not really seem to have any value for the case, having regard to the specific contention raised by the tenant in the following words : ".......No construction of any type has been made by the answering respondents. It is also wrong that tenant has removed the roof of the building and that also removed door frame. No roof was removed. The roof is same as was at the time of inception of tenancy. The door frame, however, was replaced by shutter door in the starting of tenancy in the year 1963 and it does not in any way impair the value and utility of the building/shop. Furthermore, a long and regular observation by the landlord without any protest and by raising the rent from Rs. 20/- to Rs. 27.50 in the year 1972 amounts to a consent and acquiescence for affixing the shutter door in place of door frame.........." (Underlining mine) 11. In M/s Suman Light Hosiery v. Jaswant Singh, 1985(1) RCR(Rent) 680 : (1985-2)88 PLR 213, it was held by this Court that act of the tenant in the construction of wooden parchhatis and dismantling wooden walls and constructing in its place brick wallamounted to impairment of value and utility of building. The High Court had affirmed the findings of the Rent Controller and Appellate Authority on the said issue. The High Court had affirmed the findings of the Rent Controller and Appellate Authority on the said issue. The Honble Supreme Court has ruled in Manmohan Dass Shah and others v. Bishun Dass, AIR 1967 SC 643, while interpreting a provision in U.P. (Temporary) Control of Rent and Eviction Act that the expression "or is likely substantially to diminish its value" said that the expression "or" in the phrase was to be construed merely in its ordinary manner and ought not to be construed as and if there was a question whether there was material alterations and the alterations were found, it was not necessary in its ordinary sense for the court also to hold lowering of floor level of shop by about 1-1/2 feet by excavating the earth therefrom and putting up a new floor of lowering correspondingly the front door entailed cutting and removal of plinth band did not satisfy the requirement of law for eviction. The decision rendered under another State Act which required proof of either alteration or diminution in value cannot be imported to this State Act, which requires alteration that also impairs the utility of the building. In this case, I have already pointed out that there was no proof that tenant had tampered with the floor. The mere fact that the level of flooring in the shop was lower than the adjoining shops did not mean anything. Even prior to the year 1980 when according to the landlord the tenant had committed the act, it was adverted to in the evidence of a witness in the Civil Court that the floor was lowerd in the shop in possession of the tenant than the other shops. The Honble Supreme Court held in Shri Gurbachan Singh and another v. Shivalik Rubber Industries and others, 1996(1) RCR(Rent) 398 : (1996-2)113 PLR 694 : JT 1996(2) SC 615 while adverting to the provisions of Section 13(2)(iii) of the East Punjab Rent Restriction Act, 1949 that removal of the roof of the shop, partition walls and doors etc. giving totally a new shape and complexion would certainly amount to material impairment. There is no doubt in my mind that if there had been such a proof of the removal of ceiling or the roof and the wall, there was a scope of application of the decision of Honble Supreme Court. giving totally a new shape and complexion would certainly amount to material impairment. There is no doubt in my mind that if there had been such a proof of the removal of ceiling or the roof and the wall, there was a scope of application of the decision of Honble Supreme Court. I have already adverted to the fact that such a proof was not available. The construction of a wall in a verandah putting up a door and the fact of stopping of flow of air and light were held in Vipin Kumar v. Roshan Lal Anand, 1993(1) RCR(Rent) 675 : (1993- 2)104 PLR 349 (SC) to impair the value and utility of the building. No such facts, as congruent to the facts found by the Honble Supreme Court, are available for its application. On the issue of acquiescence and waiver, a Bench of this Court held in Ved Parkash v. Darshan Lal Jain, 1986(2) RCR(Rent) 126 : (1986-2)90 PLR 90, that a landlord having full knowledge of the fact that the wall in question had been removed by the tenant and had been receiving rent from him from more than 4 years, from the time he gained knowledge of it, would prove that he had either released the covenant or granted a licence for such an altered user. This decision if at all, supports the contention of the tenant and not of the landlord. If the landlords contention had been true then the tenant had removed the wall in the year 1980-81 or even earlier, the filing of the petition four years later would not advance the case of the landlord to his advantage. 12. The learned senior counsel appearing for the respondents brings in support of his arguments several decisions to the effect that unless an alteration done by the tenant had impaired the value of the building the section will not be attracted. He pointed out that an improvement made by the tenant by a structural alteration cannot avail to the landlord to plead for ejectment under this Section. The decision in Narinder Kumar v. Smt. Pushpa Gupta, 2008(4) RCR(Civil) 228 : 2008(2) RCR(Rent) 266 : (2008(4) PLR 338) is to the effect that a tenant who constructed a temporary wall in front of the shop without foundation to protect entry of floor water did nothing to impair the value of the building. The decision in Narinder Kumar v. Smt. Pushpa Gupta, 2008(4) RCR(Civil) 228 : 2008(2) RCR(Rent) 266 : (2008(4) PLR 338) is to the effect that a tenant who constructed a temporary wall in front of the shop without foundation to protect entry of floor water did nothing to impair the value of the building. The decision of Honble Supreme Court in G. Raghunathan v. K.V. Varghese, 2005(2) RCR(Rent) 247 : JT 2005(7) SC 559 lays down a law that structural alteration that went to improve the value or utility of the building could not attract the scope for eviction, as laid down under Kerala Building (Lease and Rent Control) Act, 1965 which contained a similar provision as the Punjab Act. The conversion of three rooms to two rooms by removing a central wall by a tenant was found in Dr. Paul S. Sandhu alias Sarabjit Singh v. Som Nath through LRs., 2003 H.R.R. 193 as insufficient to justify eviction. The Court particularly took note of the fact that there was no expert opinion to prove that the act of the tenant had materially impaired the value and the court was itself not inclined to interfere with the Revisional Court on the finding of fact by the Appellate Authority and Rent Controller that there involved any such impairment by the tenants conduct. The decision in Atthar Mal through LRs. v. Satish Kumar Aggarwal, 2000(2) RCR(Rent) 96 (P&H), adverted to the removal of wooden door and placing of a shutter as not involving any structural change. In fact in this case, if there was anything clearly admitted by the tenant it was the fact that he had changed the wooden door at the entrance and fixing of rolling shutter. This issue is, therefore, squarely applicable to the facts of the case as well. A more apposite expression regarding the effect of removal of a wall was adverted to in a judgment of this Court in Mrs. Anju Sharma v. Krishna Kumar and others, 1996(1) RCR(Rent) 307 : (1996-3)114 PLR 549 that mere removal of walls would not be sufficient to prove that the value and utility of the building had been impaired unless such alterations had endangered the building. Anju Sharma v. Krishna Kumar and others, 1996(1) RCR(Rent) 307 : (1996-3)114 PLR 549 that mere removal of walls would not be sufficient to prove that the value and utility of the building had been impaired unless such alterations had endangered the building. This is obvious from the fact that a parda wall or any wall, which is a small wall acting as a barricade ought not to be taken as materially impairing the value and utility. The removal of a party wall, for instance, which bears the load of the ceiling might, in a given case, be so serious as to impair the integrity of the building itself. We have no such situation arising in this case. This view finds affirmation from a decision of the Honble Supreme Court in Waryam Singh v. Baldev Singh, 2002(2) RCR(Rent) 594, that every addition and alteration did not materially impair the value and utility of a building. The fact of covering a verandah by constructing two side walls and putting a rolling shutter in front was found by the Honble Supreme Court as not constituting impairment in the value, while considering the same provision of the East Punjab Urban Rent Restriction Act. Ved Parkash v. Darshan Lal Jain, (1986-2)80 PLR 90 spells out a proposition that a tenant removing intervening 1a wall between two shops would have committed an actionable wrong but not so, if the landlord continued receiving rent from the tenant and filed an application for ejectment eight years thereafter. This was found by the Court to acquiesce and waive of the landlords right to obtain ejectment on the ground of impaired value and utility of the building. Walaiti Ram v. Sohan Lal, 1986(1) RCR(Rent) 593 : 1986 HRR 137 held that mere statement of a landlord in the absence of a plea or proof in what manner the premises have been rendered useless would not offer to the landlord right to claim eviction. X. Conclusion : 13. On a conspectus of consideration of all the authorities referred to above, the conclusion is clear in my mind that the landlord cannot obtain eviction. First of all, there is no pleading or proof that any act of the tenant has resulted in the impairment in the utility of the building. X. Conclusion : 13. On a conspectus of consideration of all the authorities referred to above, the conclusion is clear in my mind that the landlord cannot obtain eviction. First of all, there is no pleading or proof that any act of the tenant has resulted in the impairment in the utility of the building. The so called alteration in the ceiling and the flooring as having been done by the tenant between 1980-81 stand falsified by the fact that the height of the building and the level of the floor were different from the other shops even in earlier proceedings that was before the Civil Court. If it were to be contended that these changes had been made even prior to 1980-81 and the landlord had made a minor mistake in reference to dates, by the fact that the photographs were taken at the time when the so-called alterations were being made, and the date of photographs as having been taken on 22.10.1980, it is falsified by the fact that the landlord was very specific about the particular dates when the so- called alterations were being made, such a contention that the alterations could have been made a little earlier would be in consistent with this attempt to show that photographs were being taken when the alterations were actually being made. An argument that requires to be cited not so much as explaining the conduct of the respondent but to non-suit the petitioners own claim is that such of those alterations had been done and admitted by the tenant, do not render him vulnerable for eviction by the Act of the landlord coming to Court four years after the so-called alterations and they constitute a waiver and acquiescence which have sufficient basis in the pleadings of the respondent that I have culled out above. 14. The landlords claim for ejectment is ill-founded and does not avail to the landlord on the pleadings and evidence adduced. The revision petition is consequently dismissed with costs of respondents assessed at Rs. 5,000/-.