Judgment Rajiv Sharma, Judge (Oral): This revision petition is directed against the judgment dated 28.08.2010, passed by the learned Appellate Authority, Shimla in Civil Misc. Appeal No. 42-S/14 of 2009. 2. Material facts necessary for adjudication of this petition are that the respondents-landlords (hereinafter referred to as ‘the landlords’, i.e., Shri Rai Sahib Puran Mall Trust Dharamshala for convenience sake) has filed a rent petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’ for convenience sake) for the ejectment of the respondents-tenants from the residential rooms No. 18, 24 and 25 of R. S. Purnmal Dharamshala. The landlords have sought the eviction of the tenants on the ground that after the commencement of the Act, the tenants have used the rented residential rooms for the purposes, other than for which the same were leased out. According to them, three rooms were leased out for residential purposes, but the respondents are running business of supplying huge wooden Takhatposh and beddings etc. to the marriage parties and for numerous public and privately held functions throughout Shimla without the written consent of the landlords. According to them, such acts and conducts also cause nuisance to the occupiers, yatries and visitors staying in the Dharamshala and in the neighbourhood. According to the landlords, the tenants had been stacking Takhtposh and wooden box containing Rajaies and Talies in the corridor of Dharamshala in the second floor. According to the landlords, the supplying of such articles, i.e., Takhatposh, wood etc. was also causing damage to the building, which has impaired its value and utility. The landlords had further claimed that the entire corridor measuring 64x5 ½ was illegally used for storing Takhtposh numbering to approximately 20 to 25. The tenants were also in arrears of rent of the premises w.e.f. 01.01.1998 till the filing of the petition and they were also liable to pay statutory increase at the rate of 10% after every five years. The rent from 01.01.1998 to 31.03.2001 at the rate of `253/- per annum comes to `3352.25/-.The total rent from 01.01.1998 till the filling of the petition with 10% increase comes to `4016.55/- and interest at the rate of `9% w.e.f. 01.01.1998 comes to `361.48/-. 3. The petition was resisted by the tenants, on the ground that the same was not maintainable. 3. The petition was resisted by the tenants, on the ground that the same was not maintainable. The President and Secretary cannot become the landlords of the premises in question. The provisions of the Rent Act were not applicable and the petition was barred by principles of resjudicata. On merits, it was pleaded that the tenants have not used the accommodation in dispute or the rooms for the purpose, other than that for which they were leased. The rooms were leased out to late father of the tenants for all purposes unconditionally. It was denied that the tenants were running business of supplying wooden Takhtposh and beddings to the marriage parties or for numerous public and privately held functions throughout Shimla, as claimed in the petition. According to the tenants, late father of tenants was given rooms No. 20, 21, 22 along with vacant space in the 1st floor and corridors for running the business of supply of Charpies etc.. 4. Learned Rent Controller framed the issues on 07.07.2003. The petition was allowed on 12.06.2009 and the tenants were ordered to be evicted from the rooms No. 18, 24 and 25 in the second floor of R.S. Puranmal Dharamshala Trust, Cart Road, Shimla, H.P. on the ground of change of user and the tenants were found guilty of such acts and conducts, which caused the nuisance to the occupiers and visitors staying in the Dharamshala and the tenants were also using the said premises for commercial purposes which was causing damages to the building belonging to Dharamshala and has impaired the value and utility of the entire building. The tenants were also held to be in arrears of rent w.e.f. 01.01.1998 till the order dated 12.06.2009 at the rate of `252/- per annum of the demised premises with statutory interest at the rate of 9% per annum. The eviction of the tenants was also ordered for non-payment of arrears of rent. However, it was ordered that the tenants shall not be evicted from the demised premises, if they paid the arrears of rent due within 30 days from the passing of the order. The tenants were also held liable to pay the statutory increase in the rent after every five years at the rate of 10% w.e.f. 01.01.1998 to the date of passing of order. The tenants were also held liable to pay the statutory increase in the rent after every five years at the rate of 10% w.e.f. 01.01.1998 to the date of passing of order. The tenants preferred an appeal before the 1st Appellate Authority, Shimla against the order dated 12.06.2009. The same was dismissed on 28.08.2010. Hence, this petition. 5. The tenant, late Shri Rewati Raman, has died during the pendency of this petition. On 17.03.2011, a statement was made by Mr. Hemant Vaid, learned vice counsel for the petitioner that since the estate of deceased petitioner No. 1 was already duly represented, there was no need to bring his legal representatives on record. 6. Mr. B.B. Vaid, learned counsel for the petitioners has strenuously argued that the eviction petition was not instituted as per the provisions of Section 48 of the Indian Trust Act. According to him, the same was required to be filed by all the trustees of Shri Rai Sahib Puran Mall Trust Dharamshala. He further argued that the tenants have not changed the user of the premises. According to him, the premises were being used for residential purposes. He then contended that the tenants have not impaired the value and utility of the building. He lastly contended that his clients have not caused any nuisance, as claimed by the landlords. Mr. B.B. Vaid, learned counsel for the appellants has also argued that there is no relationship of landlord and tenants as far as rooms No. 18, 24 and 25 are concerned. According to him, the tenants were in possession of rooms No. 20, 21 and 22. According to him, the premises are being used for the purposes for which these were rented out, i.e., for residential purposes. According to him, neither the tenants were in arrears of rent nor were they liable to increase the rent after a period of five years. 7. Mr. Ashok Sood, learned counsel for the respondents has supported the judgments passed by the learned Rent Controller and the 1st Appellate Authority, Shimla. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Firstly, the Court will advert to the question of maintainability of the eviction petition filed on behalf of the landlords. 10. Shri Sanjay Kuthiala has appeared as PW-2. According to him, he was fully authorized by the Trust through resolution Ex. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Firstly, the Court will advert to the question of maintainability of the eviction petition filed on behalf of the landlords. 10. Shri Sanjay Kuthiala has appeared as PW-2. According to him, he was fully authorized by the Trust through resolution Ex. PW-2/A by all the trustees to institute the petition. Ex PW-2/A has been duly proved. He also proved in evidence certified copy of the trust deed Ex. PW-2/B.He has also testified that the petitioner No. 2 (in Rent Petition) was the President of the Trust. According to him, the premises were residential in nature, but the same were used by the tenants for commercial purposes. The tenants were indulging in the business of beddings and cots. According to him, they have converted room No. 18 into bathroom and toilet, which has caused seepage. Room No. 25 has been converted into a store. In the corridor of rooms No. 24 and 25, the tenants have kept Takhtposhes and cots, which has caused obstruction for the ingress and egress to the yatries staying in the Dharamshala. The Takhtposhes, when rented out, were being lifted by the tenants through staircase and passage of Dharamshala, which causes damage to the property of Dharamshala, as a result of which, its value and utility had been impaired. The use of the tenanted premises has been changed from residential to commercial without the oral or written consent of the landlords. A suggestion was put to PW-2, whereby he has admitted that Latur Chand, father of the tenants was the tenant of Dharamshala. He has denied the suggestion that the tenants were using the tenanted premises for residential purposes. PW-3 Sushil Kumar Sood has deposed that he was supplying the beddings to the visitors staying in Dharamshala. The tenants were carrying on the business of supply of Takhtposhes, beddings and those were kept in the corridor, which has caused obstruction in the ingress and egress to the visitors and persons passing therefrom. 11. PW-1, Vivek Karol has deposed that the tenants had kept 15 Takhatposhes, two wooden boxes and beddings in the corridors. He has proved in evidence his report, Ex. PW-1/A. He also deposed that by keeping Takhatposhes, the value and utility of the passage has been impaired. He reported in Ex. 11. PW-1, Vivek Karol has deposed that the tenants had kept 15 Takhatposhes, two wooden boxes and beddings in the corridors. He has proved in evidence his report, Ex. PW-1/A. He also deposed that by keeping Takhatposhes, the value and utility of the passage has been impaired. He reported in Ex. PW-1/A that room No. 18 was being used as Kitchen by the tenants and other rooms as residence and store for running business. He noticed 15 Takhatposhes and two big wooden boxes lying in the passage, which was leading to the residence of the tenants and other rooms of Dharamshala. The passage was 5 feet in width and 10 feet in height. The width of the wooden Takhatposhes was 3 feet and their length was 6 feet and, as such, almost 60% of the passage had been blocked by the Takhatposhes and wooden boxes. The quilts were lying on two bed boxes. He further reported that due to blockade of passage, proper maintenance could not be carried out, as a result of which, the property was damaged and, thus, impairing its value. The regular use of such wooden Takhatposhes was damaging walls and floors of the corridor and putting danger to the building of the Dharamshala. He did not inspect rooms No. 20, 21 and 22. 12. PW-4, Dheeraj Kanwar was appointed as a Local Commissioner. He inspected the tenanted premises, consisting of rooms No. 18, 24 and 25. He visited the tenanted premises on 05.04.2001 at about 5:00 p.m. in the presence of Manager of Puran Mall Dharamshala and conducted the spot inspection. He has proved in evidence his report, Ex. PW-4/B (Mark-X). He has also recorded the statements vide Ex. PW-4/C-1 to Ex. PW-4/C- 4. He has also proved the photographs Ex. PW-4/D-1 to Ex. PW-4/D-6. He has also stated that during inspection, he noticed that room No. 24 was occupied by the tenants and the same was being used as kitchen, bathroom and store by making partition in between. Room No. 25 was being used as store where beddings were stored. In the corridor of the said rooms wooden beddings (Takhatposhes) and big trunks had been kept and only space from which a single person could move had been left. 13. Rewati Raman has appeared as RW-1. Room No. 25 was being used as store where beddings were stored. In the corridor of the said rooms wooden beddings (Takhatposhes) and big trunks had been kept and only space from which a single person could move had been left. 13. Rewati Raman has appeared as RW-1. According to him, his father has taken on rent rooms No. 20, 21 and 22 in the year, 1947 in order to carry out the business of supply of beddings and cots and the said rooms were also rented out for residence to his father. According to him, the eviction petition had been instituted and maintained in respect of the tenanted premises comprising of rooms No. 18, 24 and 25. He has deposed that he has no concern with the tenanted premises, comprising of rooms No. 18, 24 and 25. According to him, the respondents were in possession of rooms No. 20, 21 and 22. However, the testimony of RW-1 cannot be believed on the basis of judgments Ex. PX-1 and Ex. P-X, whereby the landlords and tenants’ relationship stood established. In his cross-examination, he admitted that he had the knowledge of the judgments Ex. PX-1 and Ex. P-X. Tenants have also examined Rajesh Kumar as RW-2. He supported the version of RW-1. The tenancy pertained to rooms No. 20, 21 and 22 in fourth storey. According to him, the tenants carried out the business there without causing any nuisance, hindrance or obstruction to any body. However, he admitted that in the veranda/corridor, Takhatposhes were lying and those used to be kept there since the time of the father of the tenants. 14. What emerges from the evidence led by the parties, is that the tenanted premises were rented out for the purpose of residence, however, the same are being used for commercial purposes. 15. Their Lordships of the Hon’ble Supreme Court in Bishamber Dass Kohli (Dead) By L.Rs. Vs. Satya Bhalla (1993) 1 Supreme Court Cases, 566 have held that change in user must be a change in character of the user for which alone building had been let out. Change in user may be even in respect of a small portion and need not be in respect of the entire building or a substantial part thereof. Their Lordships have held as under: “8. Change in user may be even in respect of a small portion and need not be in respect of the entire building or a substantial part thereof. Their Lordships have held as under: “8. It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a 'scheduled building' as defined in Section 2(h) of the Act without the written consent of the landlord, the ground of eviction under Section 13(2(ii)(b) is made out. 9. This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis. The High court misconstrued the provisions to take the contrary view. 10. A division bench of the Punjab and Haryana High court in Telu Ram v. 0m Parkash Garg' while dealing with Section 13(2(ii)(b) of the Act mentioned one of its conclusion in para 21 as under "(FC) that if the result of the use of even a small portion of a build- 1 1971 RCJ I : 1971 Punj LR 1 ing is such that the category of the premises is changed from residential, non-residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be at- tracted," 11. This is how this provision appears to have been understood at least ever since then and the people in the State have arranged their affairs on that basis. Apart from the fact that this view commends to us as the correct view, the desirability of continuing the settled view is also a reason in its favour.” 16. Now, the Court will advert to the question whether the tenants have committed such acts which were likely to impair material value or utility of the building. The only evidence led by the landlords is statements of PW-1 Vivek Karol and PW-2 Sanjeev Kuthiala. They have only stated that the shifting of Takhatposhes etc. through stairs or corridors has damaged the building, as a result of which, its value and utility had been impaired. The Court is of the considered view that the evidence led by the landlords does not meet the requirement of law. They have only stated that the shifting of Takhatposhes etc. through stairs or corridors has damaged the building, as a result of which, its value and utility had been impaired. The Court is of the considered view that the evidence led by the landlords does not meet the requirement of law. The expression of “Materially altered” has come for consideration before their Lordships of the Hon’ble Supreme Court in Om Parkash Vs. Amar Singh and others (1987) 1 Supreme Court Cases, 458, while interpreting U.P. Cantonment Rent Control Act, 1952. Their Lordships have held that the expression ‘materially altered’ means “a substantial change in the character, form and the structure of the building without destroying its identity”. It means that the nature and character of change or alteration of the building must be of essential and important nature. Their Lordships have held as under: “5. The Act does not define either the word ‘materially’ or the word ‘altered’. In the absence of any legislative definition of the aforesaid words, it would be useful to refer to the meaning given to these words in dictionaries. Concise Oxford Dictionary defines the word ‘alter’ as change in character, position. “Materially” as an adverb means ‘important’ essentially concerned with matter not with form. In Words and Pharases (Permanent Edition) one of the meanings of the word ‘alter’ is “to make change, to modify, to change, change of a thing from one form and set to another. The expression “alteration” with reference to building means ‘substantial’ change, varying, change the form or the nature of the building without destroying its identity”. The meaning given to these two words show that the expression ‘materially altered’ means “a substantial change in the character, form and the structure of the building without destroying its identity”. It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Shah Vs. The meaning given to these two words show that the expression ‘materially altered’ means “a substantial change in the character, form and the structure of the building without destroying its identity”. It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Shah Vs. Bishun Das, this Court considering the expression ‘material alterations’ occurring in Section 3(1)( c) of U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed: Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation.” 9. Learned counsel for the respondent placed reliance on the Full Bench decision of the High Court in Sita Ram case where the question as to what constructions could materially alter the accommodation was considered. The Full Bench held that conversion of a single storey shop into a double storied structure by constructing a pucca superstructure on the roof of the shop materially altered the accommodation. On the facts of that case, there could be no doubt that the tenant had made substantial constructions which changed the form, front and structure of the tenanted shop. The High Court observed that the fact that a construction is permanent or temporary in nature does not affect the question as to whether the constructions materially alter the accommodation or not. We do not agree with this view. The nature of constructions, whether they are permanent or temporary, is a relevant construction in determining the question of ‘material alteration’. A permanent construction tends to make changes in accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building. The Full Bench referred to the observation of this Court made in Babu Manmohan Das Shah case that the alteration in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of leased premises, yet construction may fall within the expression ‘material alterations’. The Full Bench referred to the observation of this Court made in Babu Manmohan Das Shah case that the alteration in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of leased premises, yet construction may fall within the expression ‘material alterations’. In our opinion, the observations made in Babu Manmohan Das Shah case do not justify inference that the nature of the construction the whether permanent or temporary is not relevant for the purpose of determining the ‘material alterations’ made by a tenant”. 17. Their lordships of the Hon’ble Supreme Court in Brijendra Nath Bhargava and another Vs. Harsh Wardhan and others (1988) 1 Supreme Court Cases 454 have held that no definition can be drawn of the “material alteration.” It will have to be decided on the basis of facts and circumstances appearing in each case. But the material consideration would be whether the construction carried out by the tenant alters the front show or the structure of the premises and whether the constructions are substantial and permanent in nature and they alter the front elevation or the front and the structure of the building itself. Their Lordships have held as under: “12. The next question which was debated at length by learned counsel for parties is as, to whether the said construction of the wooden Dochhatti or a balcony is a material alteration within the meaning of S. 13(l)(c) of the Act quoted above and in this regard it is undisputed that what has been constructed is a wooden structure which makes the showroom a cabin and on the roof of the cabin a kind of balcony with a wooden staircase from inside the cabin to go to this balcony. Admittedly this all is a wooden structure built on beams and planks inside the showroom itself and in order to come to the conclusion whether such a wooden cabin made up inside the showroom could be said to be a material alteration or not, we can draw much from Om Prakash's case (AIR 1987 SC 617 at p. 619) where it was observed : "The Act does not define either the word ,materially' or the word 'altered'. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise Oxford Dictionary defines the word "alter" as change in character, positions "materially" as an adverb means important essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word alter is to make change, to modify, to change, change of a thing from one form and set to an other. The expression "alteration with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to those two words show that the expression 'materially altered' means a substantial change in the character, form and the structure of the building without destroying its identity". It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Das Shah v. Bishun Das, ( 1967) 1 SCR 836: AIR 1967 SC 643, this Court considering the expression 'material alterations occurring in S. 3(l) (c), U. P. Temporary) Control of Rent and Eviction Act. 1947 observed: "Without attempting to lay dawn any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case. The alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the front and structure of the premises. It is no doubt true that in the last part of this passage quoted above it has been clearly stated that no definition could be drawn of material alteration but it will have to be decided on the basis of facts and circumstances appearing in each cases; but the material consideration would be whether the construction carried out by the tenant alters the front show or the structure of the premises and considering this aspect of the law it was further observed (a( p. 619 of AIR) : "In determining the question the Court must address itself to the nature, character of the constructions 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. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The legislature does not provide for their eviction; instead, the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions' the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation." Here it has been observed that the essential element which needs consideration as to whether the constructions are substantial in nature and they alter the front elevation or the front and the structure of the building itself and it is in the light of this that ultimately in this decision what was constructed has been held not to be material alteration as it was observed (at p. 620 of AIR) : "The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling; instead, it converting a big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the, building. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation." The question as to whether the construction is of a permanent nature or a temporary nature also was considered by this Court in the decision quoted above and it was observed (at p. 621 of AIR) : "The High Court observed that the fact that a construction is permanent or temporary in nature does not affect the question as to whether the constructions materially alter the accommodation or not. We do not agree with this view. The nature of constructions, whether they are permanent or temporary, is a relevant consideration in determining the question of 'material alteration'. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which does not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building." It is thus clear that what is alleged to have been constructed in the present case, in the light of the test laid down by this Court in the decision referred to above, could not be said to be material alteration in the premises in question. In Venkatlal G. Pittie v. Bright Bros. In Venkatlal G. Pittie v. Bright Bros. (Pvt.) Ltd., (1987) 4 JT 139: (AIR 1987 SC 1939) the question was not about material alteration but the question was whether the constructions carried out by the tenant were permanent in nature and were such which had diminished the value of the property and further that the constructions have been made after encroaching on the land which was not the part of the lease and in that context the question as to whether the structures raised were permanent or temporary has been considered and the nature of the things as appeared in that case apparently is of no avail so far as the case in hand is concerned as it was observed in that case (at p. 1940 of AIR): "Two questions arise for consideration in these appeals (i) whether the structure constructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant; (ii) what is the scope and extent of the jurisdiction of the High Court under Art. 227 of the Constitution on questions of facts found by the appellate bench of Small Cause Court." In Babu Manmohan Das Shah's case, (AIR 1967 SC 643) the question which was before this Court was not as to whether the construction made was such which could be said to be a material alteration but the real question which was raised before the Court was whether it is necessary further to hold that this construction diminishes the value of the accommodation although in the Section it was material alteration of such construction which diminishes the value of the accommodation used but it was contended that it will amount to end and considering this aspect of the matter in this judgment it was observed : "As already stated, even if the alterations did not cause any damage to the premises or did not sabstantially diminish their value the alterations were material alterations and on that basis alone the appellants were entitled to evict the respondent." It is thus clear that even this judgment is of assistance so far as the present case is concerned. In the light of the discussions above and in the light of the test laid down by this Court in Om Prakash's case (AIR 1987 SC 617), it is clear that this construction of the balcony or Dochhatti which is a wooden structure does not amount to material alteration which could give a cause of action to the respondent landlord for filing a Suit Of eviction. No other question was pressed. In the light of the discussions above therefore the appeal has to be allowed. It is therefore allowed. The judgment and decree passed by the courts below are set aside and the suit filed by the respondent is dismissed. In the circumstances of the case parties are directed to bear their own costs so far as this Court is concerned. 18. Their Lordships of the Hon’ble Supreme Court in Vipin Kumar Vs. Roshan Lal Anand and others (1993) 2 Supreme Court Cases 614 have held that for act of tenant impairing materially the value or utility of the building, the burden of proof is on the tenant and thereafter onus shifts on landlord to rebut. Their Lordships further held that impairment should be from the point of view of landlord. Their Lordships have held as under: “2. The question, therefore, is whether the Finding of courts below which concurrently found that the appellant had constructed a wall in the verandah which materially affected the value or utility of the shop is vitiated by law. The building consists of two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate on the evidence and upset that finding. It was also found that the wall was constructed without the permission of the landlord. Due to construction the value or utility of the building has been materially affected. Section 13(1 provides thus: "A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947 as subsequently amended)." Clause (iii) of Ss. (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 thef-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 Ss. (2 of Section 13 is impairment of the building due to acts committed by the tenant 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 affected 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 the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that Ss. (2 of Section 13 gives discretion to the Rent Controller to order eviction while in the cases covered under Ss. (3 of Section 13 it is made mandatory to direct eviction of the tenant. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that Ss. (2 of Section 13 gives discretion to the Rent Controller to order eviction while in the cases covered under Ss. (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 to the landlord to rebut these 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 Controller's failure to exercise the discretion. In 0m Prakash 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 constructions 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`l alteration. The ratio thus renders little assistance to the facts of the case. 19. In considering that language it was held that putting up a door to the verandah is not a material`l alteration. The ratio thus renders little assistance to the facts of the case. 19. Their Lordships have again explained the term “impair materially” in Gurbachan Singh and another Vs. Shivalak Rubber Industries and others (1996) 2 Supreme Court Cases 626 as under: “12. Section 13(2) (iii) of the Act of which provides a ground for eviction of tenant reads as under :- "13 (2) (iii).- The tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land." A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2) (iii) of the Act. If it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. If it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else. This Court while dealing with the provisions of Section 13(2) (iii) of the Act in the cast of Vipin Kumar v. Roshan Lal Anand , (1993) 3 JT 9 SC) 171 expressed the view as follows :- "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 tenant and the second limb of the utility or value of the building has been materially impaired. The acts of the tenant must be such that erection of the wall had materially imparied the value or utility of the demised premises". 14. Thus, from the above mentioned facts it is clear that even if it is assumed that the tenants-respondents raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note Ext. A/1, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have imparied materially the value or utility of the building / premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act. The High Court, therefore, fell in patent error in dismissing the revision in limine without going into the correct legal position involved in the case. Having regard to the facts and circumstances discussed above, we are of the firm view that this is a case which squarely falls within the mischief of the provisions contained in Section 13 (2) (iii) of the Act which make the tenants-respondents liable for eviction form the demised premises.” 20. The pleadings and the evidence led by the landlords is not sufficient to come to the conclusion that merely by shifting the Takhatposhes, beds etc., the value or utility of the building has been materially impaired. The findings recorded by the Rent Controller and the Appellate Authority are liable to be set aside. 21. Now, the Court will advert to the question whether the tenants had been guilty of such acts and conducts which has caused nuisance to the occupiers of the building in the neighbourhood. There is no tangible evidence on record to establish that the acts of the tenants have caused nuisance to the occupiers of the building in the neighbourhood. No witness has been cited from neighbourhood by the landlords. The landlords have miserably failed to prove this point. What is ‘nuisance’ or ‘annoyance’ has been explained by their lordships of the Hon’ble Supreme Court in Narpatchand A. Bhandari Vs. Shantilal Moolshankar Jani and another (1993) 3 Supreme Court Cases 351 as under: “15. No witness has been cited from neighbourhood by the landlords. The landlords have miserably failed to prove this point. What is ‘nuisance’ or ‘annoyance’ has been explained by their lordships of the Hon’ble Supreme Court in Narpatchand A. Bhandari Vs. Shantilal Moolshankar Jani and another (1993) 3 Supreme Court Cases 351 as under: “15. There are no statutory definitions of 'nuisance' or 'annoyance' which under S. 13(1)(c) of the Act constitute a ground for recovery of possession by landlord of a premises in the occupation of a tenant. In the case with which we are concerned, the acts of nuisance or annoyance complained of are committed by the tenant and persons residing with him in the premises which is a tenement (flat) lying amidst other tenements (flats) of the one and same storeyed building. The acts of the defendant or persons residing with him ,in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers, cannot fall short of being acts of nuisance or annoyance if regard is had to their nature, intensity and duration and the consequential ill-effects which might have been produced by them on the normal living of such occupiers. Further, when the particular acts of the defendant or persons residing with him in the premises (flat) of a storeyed building, said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of tenements (flats) in the very same storeyed building are seen, they cannot make us think that they were not clear acts of nuisance or annoyance envisaged under S. 13(1)(c) of the Act because of the intolerable inconveniences, sufferings, humiliations which must have been caused to the adjoining or neighbouring occupiers, due regard being given to the locality of the storeyed building, the class of the people living in the tenaments of the storeyed building and the nature of living to which they were accustomed. Even otherwise, the acts, said to have been committed by the defendant and persons residing with him in the premises when are, as stated, found by the fact finding courts to have amounted to acts of nuisance or annoyance entitling the plaintiff under S. 13 (1)(c) of the Act to recover possession of the premises from the defendant and when the High Court has refused to interfere with such finding in exercise of its Writ jurisdiction there could be no justification whatever for us to interfere with the same in this appeal under Art. 136 of the Constitution. 22. The same question has been considered by their lordships of the Hon’ble Supreme Court in Rafat Ali Vs. Sugni Bai and others (1999) 1 Supreme Court Cases 133. Their Lordships have held that every inconvenience or noise cannot become actionable nuisance. For nuisance to be actionable substantial or significant damage must be proved. While interpreting A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, their Lordships have explained the terms “likely”, “materially” as under: 14. Though the word "nuisance" is not defined it can be inferred from the context that what is meant therein is the actionable nuisance which is recognised in Common Law. Nuisance as understood in law is broadly divided into two classes - public nuisance and private nuisance. The former consists of some acts or omissions which result in violation of rights which one enjoys in common with other members of the public. But the latter i.e. private nuisance, is one which interfere with a person's use and enjoyment of immovable property or some right in respect of it. 16. Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at least of some significance. In other words, if the damage is insignificant or evanescent or trivial it would not be actionable nuisance. The following passage in para 312 of the same volume in Halsbury's Laws of England is worth extracting in this context : "312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The following passage in para 312 of the same volume in Halsbury's Laws of England is worth extracting in this context : "312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The damage need not consist of pecuniary loss but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent." 17. It is clear from Clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood". Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuisance must be of a reasonably perceptible degree as pointed out earlier. 19. All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially". In Om Pal v. Anand Swarup, (1988) 4 SCC 545 the Court, while considering a similarly worded clause in another Rent Control enactment, has observed thus "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." 23. The findings recorded by both the Courts below with regard to arrears of rent and not increasing the rent by the tenants @ 10% after every five years w.e.f. 01.01.1998 are also up held. The tenants are also liable to be evicted on the ground of non-payment of arrears of rent and not increasing the rent after statutory period of five years, i.e., w.e.f. 01.01.1998. 24. Accordingly, in view of the observations/discussions made hereinabove, the revision petition is partly allowed. The petitioners/tenants are liable to be evicted only on the ground of change of user from residential to commercial and non-payment of arrears of rent. However, it is made clear that in case the petitioners-tenants deposit the arrears of rent within a period of 30 days from today, in that eventuality, they shall not be evicted on the ground of non-payment of arrears of rent. No costs.