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2010 DIGILAW 2652 (ALL)

PARAS NATH DIGAMBER JAIN SABHA v. OMKAR NATH

2010-08-31

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon’ble Devendra Pratap Singh, J.—Heard learned counsel for the parties. 2. This petition by the landlord is directed against a revisional order dated 26.5.2001 by which the tenant revision against eviction decree has been allowed and the suit has been dismissed. 3. It appears that the respondent was allotted a portion of house consisting of a room on the ground floor and another over it, apart from a godown etc. on 30.8.1978 at the rate of Rs. 20.50/- per month but immediately after taking possession he allegedly started making material alterations resulting in the complete destruction of the godown and part of the room in September, 1978 itself and when he started raising fresh constructions in 1981, the petitioner landlord was forced to file a suit No. 453 of 1981 for injunction which though was subsequently dismissed and in the meantime the tenant completed the entire constructions to his own satisfaction and thereby not only he disfigured it but diminished its utility etc. forcing him to file the SCC Suit No. 16 of 1984. The respondent tenant contested the suit inter alia on the ground that the constructions had been completely destroyed in floods and despite notice to the landlord when he did not make constructions he himself completed it by utilising his own money and the constructions were neither material nor diminished the value or its utility. 4. After the parties led their evidence, the trial Court found that the entire godown had fallen down which the tenant had reconstructed according to his own requirement and thus came to the conclusion that the tenant had made large scale new constructions without any written permission or notice to the landlord and these constructions, apart from diminishing its value, had also reduced its utility and therefore, decreed the suit. The revisional Court came to the conclusion that the new constructions did not diminish the value and in fact he was entitled to do so under Section 29 (2) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). 5. It is urged on behalf of the petitioner neither any permission for alteration under Section 20(2)(c) nor any notice for reconstruction was given under Section 29(2) therefore, the Court was not justified in allowing the revision. 5. It is urged on behalf of the petitioner neither any permission for alteration under Section 20(2)(c) nor any notice for reconstruction was given under Section 29(2) therefore, the Court was not justified in allowing the revision. In any event, the reconstruction diminished its value by depriving the landlord of the rent for the room on the first floor. 6. Admittedly, the roof of the godown was supported by wooden beams and over it was a room which was in the tenancy of one Badri. It has also been found by both the Courts below that the entire godown had fallen down, together with the first floor room and the tenant reconstructed it but used tin sheets for the roof of the godown depriving the petitioner of the utility of the room over it which was in the tenancy of Badri. The trial Court had also recorded categorical findings that neither any written permission was sought or given under Section 20(2)(c) nor any notice under Section 29(2) was given before reconstructing the godown. The revisional Court has not set aside the finding with regard to permission under Section 20(2)(c), but has held that the tenant was entitled to reconstruct the godown under Section 29 and relied upon the order passed in the injunction suit of the petitioner dated 16.12.1981. Though the parties have not brought on record the said order, but during arguments it was produced. Its perusal shows that the temporary injunction application was dismissed on the ground that the tenant is entitled to reconstruct the godown under Section 29, but there is no finding in that order or the revisional order that due procedure was followed before raising the constructions, therefore this finding of the revisional Court is perverse as it is based on evidence. 7. This issue can be examined from another angle. Assuming that the godown fell down due to excessive rains, but both Courts have held that it fell down in September, 1978. It is the admitted case of the tenant that when he started reconstruction in November 1981, the petitioner filed the injunction suit. At this stage it would be relevant to note the requirement and procedure prescribed under Section 29 (2). It reads as under : “29(1)........................... It is the admitted case of the tenant that when he started reconstruction in November 1981, the petitioner filed the injunction suit. At this stage it would be relevant to note the requirement and procedure prescribed under Section 29 (2). It reads as under : “29(1)........................... 29 (2) Where in consequence of fire, tempest, flood or excessive rainfall, any building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect or repair it wholly or partly, as the case may be, at his own expense after giving a notice in writing to the landlord within a period of one month from such injury : Provided that the tenant shall not be entitled to avail himself of the benefit of this provision : (a) if such injury was occasioned by his own wrongful act or default; or (b) in respect of any re-erection or repair made before he has given a notice as aforesaid to the landlord or before the expiration of a period of fifteen days after such notice, or if the landlord in the meantime makes an application under Section 21, before the disposal of such application; or (c) in respect of any re-erection or repair made after the expiration of a period of six months from such injury or, if the landlord has made any application as aforesaid, from the disposal thereof. 29 (3)..............._” 8. The clause (2) requires the tenant to serve a notice for reconstruction on the landlord within a month of such injury. Sub clause (b) to the proviso provides that the tenant would not be entitled to the benefit of the section if he makes any construction before serving the notice or constructions made before expiry of 15 days from the service of the notice. Further, Sub clause (c) to the Proviso disentitles the tenant from availing the right of reconstruction after expiry of six months from such injury. Apart from the fact that no notice was proved to be served on the landlord, even the constructions were made after expiry of six months from the date of destruction of the godown. 9. Thus, examining the facts either at the altar of Section 20(2)(c) or Sections 29(2)(b) and (c), the constructions raised by the petitioner cannot save him from eviction and the argument of the petitioner is bound to be accepted. 10. 9. Thus, examining the facts either at the altar of Section 20(2)(c) or Sections 29(2)(b) and (c), the constructions raised by the petitioner cannot save him from eviction and the argument of the petitioner is bound to be accepted. 10. For the reasons above, this petition succeeds and is allowed and the impugned revisional order dated 26.5.2001 is hereby quashed and that of the trial Court is restored. 11. In the circumstances of the case, no order as to costs. —————