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Himachal Pradesh High Court · body

2011 DIGILAW 2231 (HP)

Gurcharan Kaur v. Anil Kumar

2011-06-17

RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, J. This revision petition is directed against the judgment passed by the learned appellate authority, Shimla in Civil Misc. Appeal No.37-S/14 of 2003 dated 8.6.2005. 2. Material facts necessary for adjudication of this petition are that the respondent/landlord (hereinafter referred to as "the landlord" for convenience sake) filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as "the Act" for brevity sake) for eviction of the petitioners/tenants (hereinafter referred to as "the tenants" for convenience sake) from shop No.29, Padam Cottage, Sanjauli, Shimla. The case of the landlord was that the demised premises were non-residential and let out at the rate of Rs. 250/- per month to Shri Gurdit Singh, husband of Smt. Gurcharan Kaur and father of respondents No.2 and 3, namely, Davinder Singh and Amarjeet Singh. Gurdit Singh died in 1989-90 and tenancy was inherited by his widow. According to the landlord, respondent Gurcharan Kaur has changed the user of shop from shop to shop-cum-residence and handed over the control and possession of the shop to Shri Amarjeet Singh as sub-tenant. The tenanted premises were illegally partitioned by respondent Gurcharan Kaur and converted the major portion into residence. Thus, eviction of the respondents was sought on the grounds of subletting, impairing the value and utility of the demised premises and converting the shop into residence. According to the landlord, the tenants were also causing nuisance by cooking in the shop-cum-residence by discharging the filthy water in front of the shop and due to smoke arising on account of cooking by the sub-tenant, Amarjeet Singh. Thus nuisance was caused to the other occupiers of the building and in the neighbourhood. Initially, the petition was filed against the widow of Gurdit Singh, namely, Gurcharan Kaur. However, subsequently, his sons Shri Davinder Singh and Amarjeet Singh were impleaded as respondents by the landlord. 3. The petition was contested by the tenants. It was denied that substantial portion of the demised premises was converted into residence. The case of the tenants was that the shop was temporarily partitioned into two portions. The front portion consists of the shop, whereas, the inner portion consists of a small room where a settee is placed for taking rest during day time only. It was denied that substantial portion of the demised premises was converted into residence. The case of the tenants was that the shop was temporarily partitioned into two portions. The front portion consists of the shop, whereas, the inner portion consists of a small room where a settee is placed for taking rest during day time only. It was denied that the demised premises were converted into residence effecting the value and utility of the premises or impairing the same. The allegation of nuisance was also denied. The learned Rent Controller framed the issues on 18.2.2002. The learned Rent Controller dismissed the petition on 6.6.2003. 4. The landlord preferred an appeal before the learned appellate authority. The learned appellate authority allowed the appeal on 8.6.2005 and ordered eviction of the tenants. Hence, this petition against the judgment, dated 8.6.2005 passed by the learned appellate authority. 5. Tenants have preferred an application bearing CMP No.29 of 2006 under Order 41 Rule 27 of the Code of Civil Procedure. The same was allowed by this Court on 12.5.2011. 6. Mr. Bhupender Gutpa, learned Senior Advocate with Mr. Janesh Gupta appearing on behalf of the tenants has supported the judgment of learned Rent Controller, dated 6.6.2003. He has vehemently argued that the present eviction petition was not maintainable since the landlord has earlier filed eviction petition, which was withdrawn by him on 3.4.1997 vide Ex.PW-2/M. He then argued that the landlord has failed to prove the change of user/wrongful user. According to him, the shop in question was being used for the purpose of business and only a small portion was used as resting place during day time only. He then argued that the landlord has also failed to prove that the temporary partition has impaired materially the value and utility of the building. He further contended that no nuisance was being caused by the tenants and the landlord has not led any evidence to prove this ground. He lastly contended that the present petition was liable to be dismissed by the learned Rent Controller under Section 18 of the Act, which according to him was analogous to Section 11 of the Code of Civil Procedure. 7. Mr. Satyen Vaidya, learned counsel for the landlord has supported the judgment passed by the learned appellate authority. He lastly contended that the present petition was liable to be dismissed by the learned Rent Controller under Section 18 of the Act, which according to him was analogous to Section 11 of the Code of Civil Procedure. 7. Mr. Satyen Vaidya, learned counsel for the landlord has supported the judgment passed by the learned appellate authority. According to him, the landlord has duly proved that the tenants have changed the user of the premises by converting it from non-residential to residential. He then contended that the partition made by the tenants was likely to impair materially the value and utility of the building. He also contended that the tenants have not taken any objection in the reply filed so far as Order 23 Rule 1 is concerned. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. 9. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the landlord has earlier filed eviction petition on the same cause of action, which was withdrawn on 3.4.1997 vide Ex.PW-2/M. He has also drawn the attention of the Court to statement made by the learned Advocate of the landlord, dated 3.4.1997 vide Ex.PW-2/N. The statement made by Mr. V.C. Guleria, learned counsel for the landlord before the learned Rent Controller, Shimla, dated 3.4.1997 read thus: - "Stated that petitioner does not press this petition for some time and wants to institute new petition later on and as such does not press this petition. File be consigned to record room." 10. The order passed by the learned Rent Controller vide Ex.PW-2/M, dated 3.4.1997 read thus:- "Stated that petitioner does not press this petition for some time and wants to institute new petition later on and as such does not press this petition. File be consigned to record room." 10. The order passed by the learned Rent Controller vide Ex.PW-2/M, dated 3.4.1997 read thus :- "RW Amarjit Singh is present but discharged as col. for the petitioner vide his separate statement has withdrawn the petition. Accordingly, the petition is dismissed as withdrawn. Case file be consigned to records." 11. The tenants have also placed on record the certified copy of the earlier petition filed by the landlord vide Annexure A-1 and the reply filed by the tenants vide Annexure A-2. The learned Rent Controller has framed the following issues in this petition on 29.6.1993:- 1. Accordingly, the petition is dismissed as withdrawn. Case file be consigned to records." 11. The tenants have also placed on record the certified copy of the earlier petition filed by the landlord vide Annexure A-1 and the reply filed by the tenants vide Annexure A-2. The learned Rent Controller has framed the following issues in this petition on 29.6.1993:- 1. Whether the respondent has sublet the shop in dispute to Shri Amarjit Singh without the consent of the petitioner? O.P.P. 2. Whether the respondent has impaired value and utility of premises by partition and working, as alleged? O.P.P. 3. Whether the premises have been used for purpose other than for which were let out? O.P.P. 4. Whether the petition is not maintainable? O.P.R. 5. Relief. 12. A bare perusal of order dated 3.4.1997, reproduced herein above makes it abundantly clear that the landlord has not sought permission of the Court to institute fresh petition on the same or similar cause of action. The petition has been unconditionally withdrawn. The only reason assigned by PW-2, Shri Mehar Singh for withdrawal of the earlier petition was that it was withdrawn on some technical grounds. The Court is of the considered view that once the permission as stipulated under Order 23 of the Code of Civil Procedure has not been sought, the present petition was not maintainable. 13. Mr. Satyen Vaidya, learned counsel for the landlord has strenuously argued that the provisions of the Code of Civil Procedure are not applicable under the Rent Control Act. Mr. Bhupender Gupta, learned Senior Advocate has argued that the principles of the Code of Civil Procedure will be applicable to the proceedings under the Rent Control Act. He has relied upon Dr. Shri Bhagwan Singh v. Shri Ramesh Kumar, 1981 (1) RLR, 130, wherein the learned Single Judge has held as under (para 8):- "I have thoroughly considered the arguments of the parties. I am of the view that even if the provisions of Order 23 rule 1 may not be strictly applicable to the proceedings under the Act its principles are still applicable, when there is no provision to the contrary, in the Act itself. I am of the view that even if the provisions of Order 23 rule 1 may not be strictly applicable to the proceedings under the Act its principles are still applicable, when there is no provision to the contrary, in the Act itself. At the same time, I am of the view that even an appellate Court (in the present case the Appellate Authority) is competent to allow the withdrawal of the petition, with a permission to file a fresh one, especially when both the parties consented to the same. It is to be noticed that on the application filed by the respondent, under order 23, rule 1, the learned counsel for the petitioner had consented that the application be allowed, but on payment of costs. The Appellate Authority assessed the costs at Rs. 100. I had put it to the learned counsel for the petitioner (whether his client had received the costs, as awarded, or was prepared to accept the same, if offered to him. It was, however, specifically asserted by the learned counsel for the petitioner that even if the costs were offered to him he would have refused to receive the same and would not also receive it even now. It is contended by the learned counsel for the respondent that his client had offered the costs and is still prepared to pay the same if not already paid. Under the circumstances, I am inclined to hold that the equity is very much in favour of the respondent." 14. He has also relied upon Mehtab Singh v. Tilak Raj Arora and another, AIR 1989 Punjab and Haryana, 12, wherein their Lordships of Punjab and Haryana High Court have held that if the provisions contained in Section 11, Order 2, Rule 2, Order 9, Rule 9 and Order 23 Rule 1 (4) of Code of Civil Procedure are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant, as the case may be, would be able to harass time and again on the cause of action and for the same relief. Their Lordships have held as under (para-6):- "If the various provisions noticed above are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant as the case may be, would be able to harass time and again on the same cause of action and for the same relief. For example, a landlord after the full trial of his petition for ejectment at the stage of arguments feeling that the petition is likely to fail, would get it dismissed as withdrawn and institute a fresh one again on the same cause of action. He would be able to repeat the same process time and again if the principles underlying the provisions of Order 23, Rule 1 (4) are held to be not applicable to the proceedings before the Rent Controller. Similarly if the provisions of Order 2, Rule 2 of the C.P.C. are held to be not applicable, a landlord would be able to file ejectment application on one ground although many other grounds may be available for the same relief at a given time. After having failed on that ground till the highest Court, he would be able to institute another petition on the second ground and thus go on fighting litigation and harassing the opposite party. Same would be the situation with regard to the provisions of Order 9, Rule 9 of the C.P.C. and the landlord would be able to get his petition dismissed in default at any stage of the proceedings and file a fresh one on the same cause of action resulting in the abuse of the process of the Court and harassment of the opposite party. All these principles as held in Lal Chand's, case ( AIR 1977 SC 789 ) (supra), are conceived in the larger public interest and founded on equity, justice and good conscience, which required that no man should be vexed twice on the same cause of action. All these principles as held in Lal Chand's, case ( AIR 1977 SC 789 ) (supra), are conceived in the larger public interest and founded on equity, justice and good conscience, which required that no man should be vexed twice on the same cause of action. We are, therefore, of the considered view that even though the Code of Civil Procedure is not applicable as such to the proceedings before the Rent Controller; but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings and the two decisions relied upon by the learned counsel for the respondent in Ram Parkash v. Nathu Ram, 1984 Cur LJ (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 Pun LR 266 are, accordingly overruled." 15. The learned Single Judge of Punjab and Haryana High Court in Sardari Lal Jain v. Smt. Dhanwanti Devi, 2002 (2) RCR, 296 has held that though the provisions of C.P.C. are not applicable to the proceedings under Rent Act but the principles which are the basis and foundation for the administration of justice would undoubtedly be applicable to these proceedings. He has held as under (para-3):- "In the reply filed by the tenant, it was alleged that the previous petition for ejectment filed by the landlady was dismissed by the learned Rent Controller on 16.1.1985 and the second petition was also dismissed on 2.3.1985 and that another petition was also dismissed by the learned Rent Controller and that the petitioner was barred from taking of the same plea under Order 23 Rule 1 CPC. It was denied that the shop was lying closed. On the other hand, it was alleged that since he was suffering from prolonged ailment of T.B., he was unable to do any work for quite sometime from 1980 onwards and that he had never ceased to occupy the said shop for a continuous period of four months. The Rent Controller, vide order dated 18.9.1993, dismissed the ejectment petition on the ground that on account of dismissal of the previous ejectment petitions, the ground that the tenant has ceased to occupy the premises for a continuous period of four months without sufficient cause, was not available to the landlord as the period of four months had not expired between the previous petition and the new petition. However, on merits, it was held that in fact the tenant had ceased to occupy the demised premises for more than four months prior to the filing of the present petition. The ejectment petition however was dismissed on the ground that this plea was not available to the landlord in the present petition because of the dismissal of the previous petition. The appeal filed by the landlord was accepted and it was held that the provisions of Rule 1 of Order 23 CPC were not applicable to the proceedings under the Act and, therefore, the present petition could not be held to be barred under Order 23 Rule 1 CPC and the dismissal of the previous petition would be no bar to the filing of the present petition. Aggrieved against this order of the learned Appellate Authority, the present revision petition was filed by Surinder Kumar, Legal Representative of Sardari Lal, since Sardari Lal tenant in the meanwhile had expired." 16. Mr. Bhupender Gupta, learned Senior Advocate has also placed strong reliance on Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior, and others, (1987) 1 SCC 5 wherein their Lordships of Hon'ble Supreme Court have held that the principles underlying Order 23 Rule 1 are different from res judicata under Section 11 of the Code of Civil Procedure. Their Lordships have held that the principle underlying Rule 1 of order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avail of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Their Lordships have held as under (para-7):- "The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating- under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of R. 1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court." 17. In the instant case, both the Courts below have overlooked Section 18 of the Act, which reads thus:- "Section 18. The Controller shall summarily reject any application under sub-section (2) or subsection (3) of Section 14, which raises substantially issues as have been finally decided in a former proceeding under this Act." 18. Mr. Satyen Vaidya, learned counsel for the landlord has argued that the tenants have waived the ground of maintainability of the present petition after the earlier petition was withdrawn on 3.4.1997. However, in the reply to para 18(a)(iv) of the petition filed by tenant Amarjeet Singh, it is specifically mentioned that the landlord was estopped from filing and maintaining the petition. A bare perusal of Section 18 of the Act makes it abundantly clear that the same is analogous to Section 11 of the Code of Civil Procedure. In the instant case, the landlord has filed fresh eviction petition after abandoning the earlier petition and has not sought permission to institute fresh petition on the same cause of action. Thus, the present petition was not maintainable. It was also hit by Section 18 of the Act. The tenants could not be vexed twice over the same cause of action. The learned Rent Controller has come to just conclusion that in the instant case, Order 23 Rule 1 CPC was attracted and thus, the petition was not maintainable. The finding recorded to the contrary by the appellate authority is against the well settled principles of law, as discussed herein above. The learned Rent Controller has come to just conclusion that in the instant case, Order 23 Rule 1 CPC was attracted and thus, the petition was not maintainable. The finding recorded to the contrary by the appellate authority is against the well settled principles of law, as discussed herein above. The learned appellate authority has not correctly appreciated the contents of Ex.PW-2/H. It is true that before the learned appellate authority, the petition filed by the landlord earlier, the reply filed by the tenants and the issues framed were not on record. However, the fact of the matter is that earlier petition was also filed on the same grounds which were contained in the notice dated 2.7.1992 vide Ex.PW-2/H. Consequently, it is held that the earlier petition was abandoned by the landlord and he has not sought permission as discussed above to institute fresh petition and the principles contained under Order 23 Rule 1 CPC read with Section 18 of the Act are attracted in the present case and the same was not maintainable. 19. The judgment reported in The Commissioner, Hindu Religious and Charitable Endowments, Madras v. V. Krishnaswami and another, AIR 1975 Madras 107, cited by Mr. Satyen Vaidya, learned counsel for the landlord is not applicable in the facts and circumstances of the present case. 20. Now the Court will advert to the first ground of eviction, i.e. change of user on the basis of which ejectment has been ordered by the learned appellate authority. According to the landlord, the premises were let out to late Shri Gurdit Singh for non-residential purpose, however, the same has been changed to residential purpose as well. 21. Mr. Satyen Vaidya, learned counsel for the landlord has drawn the attention of the Court to rent notes Ex.PW-2/C and Ex.PW-2/E. According to him, only one shop bearing No.29 was let out to late Shri Gurdit Singh. He has further argued that Amarjeet Singh has started living in the shop and thus, changed the user of the same. 22. Mr. Bhupender Gupta, learned Senior Advocate has drawn the attention of the Court to Sections 2(e) and 2(h) of Himachal Pradesh urban Rent Control Act, 1987. Same read as under:- ".. 2. He has further argued that Amarjeet Singh has started living in the shop and thus, changed the user of the same. 22. Mr. Bhupender Gupta, learned Senior Advocate has drawn the attention of the Court to Sections 2(e) and 2(h) of Himachal Pradesh urban Rent Control Act, 1987. Same read as under:- ".. 2. (e) "non-residential building" means a building being used - (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein; Provided that if a building is let out for residential and non-residential purposes, separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as non-residential. Explanation. - Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence. (h) "residential building" means any building which is not a non-residential building;" 23. Landlord has appeared as PW-1. In his examination-in-chief, he has deposed that he usually remains outside Shimla in connection with his business. In his cross-examination, he has admitted that he generally lives at Una and he did not know how many daughters and sons Gurdit Singh had. He has further admitted in his cross-examination that he is residing at Una since 1986. He has denied the suggestion that Amarjeet Singh used to live in Roop Mehal building. Thereafter he volunteered and stated that he used to live at Dhalli. He did not know where he used to reside at Dhalli. He did not know if any rent note was prepared at the time of letting out the premises. In his cross-examination, he has categorically admitted that there is wooden partition and he has seen the shop in question last month. He has not given the exact date when he has seen the shop. He has also not mentioned neither in examination-in-chief nor in cross-examination whether he has gone inside the shop to see whether Amarjeet Singh was living with his family in the shop or not. He has not given the exact date when he has seen the shop. He has also not mentioned neither in examination-in-chief nor in cross-examination whether he has gone inside the shop to see whether Amarjeet Singh was living with his family in the shop or not. He has denied the suggestion that the partition was carried out in 1960, but later on stated that it was there for the last 7/8 years. In his cross examination, he has deposed that he has seen the front portion of the shop which is visible from the road, but he has not seen the inner portion of the shop. He did not know whether the premises in question was got inspected or not. It was for the landlord to establish while he has appeared in the witness box that there was change of user. 24. PW-2 is the father of landlord. He has proved the copy of rent notes Ex.PW-2/C and PW-2/D. According to him, dimension of the shop was 16' x 11'. According to him, Gurdit Singh has never stayed in the shop from 1960 to 1990. Gurdit Singh has died on 26th February, 1990. He has stated that Davinder Singh was living in Roop Mehal since 1983 and Amarjeet Singh was doing his business separately since 1967 at Dhalli. He has further stated that Amarjeet Singh has left his shop at Dhalli and has started doing business from the shop in question and has also started residing there. Amarjeet Singh has partitioned the shop thereby converting it into two portions measuring 6' x 11' and 10' x 11'. He has started residing in the inner room. According to him, the partition has caused damage to the premises. Amarjeet Singh has started residing, bathing and cooking meals in the demised premises which has caused damage to the building. According to him, tenant has not sought permission of the landlord before changing the user. According to him, the earlier petition filed on the same ground was withdrawn on technical grounds. In his cross-examination, he has admitted that Gurdit Singh used to reside in Muslim Trust, Lower Bazaar, Shimla. Thereafter in 1983, Davinder Singh started residing in Roop Mehal. In his cross-examination, he has categorically deposed that he has gone into the shop one month back. 25. PW-3, Ram Parkash has produced the record pertaining to licence of the shop. In his cross-examination, he has admitted that Gurdit Singh used to reside in Muslim Trust, Lower Bazaar, Shimla. Thereafter in 1983, Davinder Singh started residing in Roop Mehal. In his cross-examination, he has categorically deposed that he has gone into the shop one month back. 25. PW-3, Ram Parkash has produced the record pertaining to licence of the shop. According to him, initially the licence upto 1989-90 was in the name of Gurdit Singh. Thereafter the licence was changed in the name of Amarjeet Singh. PW-4, Prem Singh has deposed that earlier the licence was in the name of Gurdit Singh and subsequently, the licence was issued in favour of Amarjeet Singh in 1990. 26. PW-6, Khem Singh, Clerk, Electric Sub Division, Dhalli has proved taking of electric connection by Amarjit Singh on 21.8.1967 for his shop at Dhalli. 27. PW-6, Shri Ramesh Kapil has deposed that Amarjeet Singh was running separate business at Dhalli. His father used to run the shop at Sanjauli. He did not know whether Amarjeet Singh used to stay at Dhalli. According to him, Amarjeet Singh was residing in the building of the landlord. He did not know about the size of the family of Amarjeet Sigh. He has visited the shop 2-3 years back and has gone into the inner portion of the shop once. 28. PW-7 Bansi Lal has deposed that Amarjeet Singh was residing in the shop and the partition was in existence since the time of Gurdit Singh. However, he was not residing in the shop. He has categorically admitted in cross-examination that he has never visited the house of Gurdit Singh. He has denied the suggestion that the tenant used to take rest in the shop. However, volunteered thereafter and stated that their food, cooking was in the same shop. They are also sleeping in the same shop. 29. RW-1 has denied that he was residing in the shop. According to him, his father was suffering from blood pressure and disk problem and he used to take rest in the back portion of the shop. According to him, he was residing in Shiv Niwas, Sanjauli and before that he was residing in Roop Mehal. He has denied the suggestion in cross-examination that he was residing in the rear portion of the shop. According to him, he was residing in Shiv Niwas, Sanjauli and before that he was residing in Roop Mehal. He has denied the suggestion in cross-examination that he was residing in the rear portion of the shop. He has admitted in his cross examination that there was no separate provision for letting out the waste water. 30. RW-2, Jagdish Ram has deposed about the nature of the partition. According to him, the partition is made of tin sheets. According to him, the rear portion was used for taking rest and lunch during day time only. He has further deposed that whenever he used to visit the shop of Amarjeet Singh, the partition was already in existence. 31. According to RW-3, Surender Singh, Amarjeet Singh was earlier residing in Roop Mehal building and thereafter shifted to Shiv Niwas, Sanjauli. According to him, the partition was in existence since long and it was in existence from the time of Gurdit Singh. 32. This is the oral and documentary evidence led by both the parties. 33. The landlord has failed to prove that the tenant has changed the user of the premises. PW-1 is residing at Una since 1986 and has never gone inside the shop to see whether Amarjeet Singh was residing there with family or not. He has seen only the outer portion of the shop and has never visited inside the shop. He has not given the exact date when he has seen the shop even from outside except a vague statement that it was one month back. PW-2 Mehar Chand has only deposed that he has seen the shop from inside one month back, but the exact date has not been given. It has come in the evidence that the tenant with family was earlier living in Muslim Trust building in Lower Bazaar, Shimla and thereafter shifted to Roop Mehal. It has come in evidence that Amarjeet Singh has thereafter started living in Shiv Niwas at Sanjauli. It has come in the evidence of PWs-3 and 4 that earlier the licence of the shop was in the name of Gurdit Singh. Thereafter, it was changed in the name of Amarjeet Singh. PW-6, Ramesh Kapil has deposed that he has gone in the rear portion of the room once, that too, 2/3 years back. It has come in the evidence of PWs-3 and 4 that earlier the licence of the shop was in the name of Gurdit Singh. Thereafter, it was changed in the name of Amarjeet Singh. PW-6, Ramesh Kapil has deposed that he has gone in the rear portion of the room once, that too, 2/3 years back. He has not given specific date or month in which he visited the rear portion of the shop. His statement is vague. PW-7, Bansi Lal has admitted that the partition was in existence from the time of Gurdit Sigh. However, he has stated that in the shop Amarjeet Singh, tenant is residing. He has also not disclosed whether he has ever visited the shop in question or has gone inside the shop to ascertain who is residing in the shop. He could not make a statement whether the food is being cooked or tenants are sleeping in the inner portion without seeing the premises by going inside. PWs.-1, 2 and 3 have denied that the tenant Amarjeet Singh was living in the shop in question. The landlord has not proved on record any map to establish the plea of change of user. The premises were never got inspected even as per statements of PWs-1 and 2. 34. The appellate authority has failed to take into consideration even the definition of 'non-residential' building as contained in Section 2(e) of the Act. The non-residential building as per sub-Section 2(e) of the Act would include the building which is mainly used for the purpose of business or trade and also partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building, resides therein. 35. In this case, in rent notes there is no recital that the premises could not be used for residential purpose. Their Lordships of Hon'ble Supreme Court in Sant Ram v. Rajinder Lal and others, AIR 1978 SC 1601 have held that in case the lease of portion of shop was made in favour of the cobbler and the purpose of lease was not disclosed in the lease, their Lordships have held that the purpose was not exclusively commercial or incompatible with residential use and the premises used on some days for cooking and staying at night will not be no diversion. Their Lordship of the Hon'ble Supreme Court have held as under (paras 6, 7, 9 and 10):- "The life style of the people shapes the profile of the law and not vice-versa. Law, not being an abstraction but a pragmatic exercise, the legal inference to be drawn from a lease deed is conditioned by the prevailing circumstances. The intention of parties from which we spell out the purpose of the lease is to be garnered from the social milieu. Thus viewed, it is difficult to hold, especially when the lease has not spelt it out precisely, that the purpose was exclusively commercial and incompatible with any residential use, even of a portion. Two rules must be remembered while interpreting deeds and statutes. The first one is (2): "in drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree to precision which a person reading in bad faith cannot misunderstand." The second one is more important for the Third World countries. Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the one with which we are now concerned, must be interpreted in a Third World perspective. We are not on the Fifth Avenue or West End of London. We are in a hilly region of an Indian town with indigents struggling to live a huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, loaded a little in favour of that class of beneficiaries. When interpreting the text of such provisions - and this holds good in reading the meaning of documents regulating the relations between the weaker and the stronger contracting parties - we must remember what in an earlier decision of this Court, has been observed (3) : "Where doubts arise the Gandhian talisman becomes a tool of interpretation "Whenever you are in doubt apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him." If we remember these two rules, the conclusion is easy that there is no exclusiveness of purpose that can be spelt out of the lease deed. That knocks at the bottom of the case of the landlord. It is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion, cooks and eats, he so disastrously perverts the purpose of the lease. A different 'purpose' in the context is not minor variations but majuscule is mode of enjoyment. This is not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. On the other hand the common case is that the cobbler continued to be cobbler and stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. A sense of proportion in social assessment is of the judicial essence. The irresistible inference, despite the ingenious argument to the contrary, is that the provision of Section 13 (2) (ii) has not been attracted. We are comforted in the thought that our conclusion is a realistic one, as is apparent from a subsequent amendment to the definition of nonresidential building which reads thus : "(d) 'non-residential building' means a building being used, - (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there : Provided that if a building is let out for residential and non-residential purpose separately to more than one person, the portion thereof let out for the purpose of residence shall into be treated as a non-residential building. Explanation. - Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence." 36. Explanation. - Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence." 36. Moreover, in the instant case, according to the averments contained in the petition, Gurdit Singh has died in the year 1990 and thereafter Amarjeet Singh has partitioned the shop and changed the user. The earlier petition was filed on the same or similar grounds on 10.8.1992 and the same was withdrawn on 3.4.1997. The present petition was filed on 11.7.1998. The landlord has remained silent for eight years from the date of cause of action has arisen. 37. Their Lordships of Hon'ble Supreme Court in D.C. Oswal v. V.K. Subbiah and others, (1992) 1 SCC 370 have held that in a case where objection to change of user, from residential to partly commercial, raised seven years after commencement of such user by taking it as a ground for eviction, their Lordships have held that the landlord had accepted the change over to the partly commercial user. Their Lordships have held as under (para (6):- "Counsel for the respondents does not dispute that from 1973 there has been change of use. The petition for eviction is of 1980. It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground. In these circumstances, we are prepared to accept the submission advanced on behalf of the appellant that the landlords accepted the user to be also other than residential." 38. The landlord has filed earlier petition after two years from the date of accrual of cause of action after the death of Gurdit Singh and has filed the instant petition after eight years from the date of cause of action so far as the plea of change of user is concerned. 39. Their Lordships of Hon'ble Supreme Court in Kisan Dayanu Mano v. Vithal Vishnu Mohandalo, 1990 (Supp) SCC 654 have held that use of part of the premises for residence by the tenant, held, did not amount to change of user more so when it arose out of compelling necessity due to poverty. Their Lordships have held as under (paras 2, 3 and 4):- "The petitioner is a barber by profession. Their Lordships have held as under (paras 2, 3 and 4):- "The petitioner is a barber by profession. He is occupying a shop premises measuring 10 ft. x 18 ft. in which he has been carrying on hair cutting saloon. The monthly rent payable in respect of the premises is Rs. 17 and it appears to be the standard rent. The landlord brought an action for eviction of the petitioner for not paying rent for six months and also on account of change in use of the premises. It was alleged that the tenant stopped using it as a barber shop and started using it for the purpose of only residence. The trial Judge ordered eviction. On appeal, however, the District Judge, Kohlapur set aside the eviction decree. But the High court on a revision agreed with the trial Judge on the question of change of user. It has been held that the tenant has joined the service in State Transport Undertaking as a driver and ceased to carry on his business and used the premises for residence. It is not in dispute that the tenant joined service as a driver in the Maharashtra State Road transport Corporation but his case, however, was that he was working as a part time barber in his spare time in the morning and evening. This evidence has been supported by DW 2 also who in turn has stated that the tenant has been using the back portion of the premises for the residential purposes during all these years since he has no other premises. We have given our anxious consideration to the case of the tenant. He is now no longer in the service of the State Transport Corporation. He has retired as a driver. Even during that service there is evidence to indicate that he has been using the premises as hair cutting saloon during his spare time. Secondly, it is not correct to state that there is a change of user merely because he has been using a portion for his residence. That has perhaps become compelling necessity due to his poverty. So long as the premises are also utilised for the purpose of carrying on his profession it cannot he said that there is change of user." 40. That has perhaps become compelling necessity due to his poverty. So long as the premises are also utilised for the purpose of carrying on his profession it cannot he said that there is change of user." 40. Now the Court will advert whether the partition put up by the tenant in any manner has materially impaired the value and utility of the building. It has come in the evidence of PW-1 that the partition is wooden and it has come in the statement of RW-2 that the partition has been carried out by fixing tin sheets. The landlord has failed to prove how the partition of the shop by temporary wooden/tin sheets has impaired the value and utility of the building. The wooden structure or tin sheets can always be removed and the room may be put to its original shape. The landlord has failed to prove the material alteration which has materially impaired the value and utility of the building. The alteration must be permanent in nature which could result in the building becoming unfit and its strength diminishes. 41. This Court in Simla Central Co-operative Consumers Store Ltd. v. S. Darshan Singh Kochhar and another, 1990 (2) Sim. L.C. 317 has held that mere temporary construction does not give rise to the presumption that value and utility of the building has been impaired. The learned Single Judge has held as under (para 12):- "After examining the evidence of the parties, I am of the opinion that construction of enclosures is temporary in nature and of light weight. It has been done in the open Verandah that was lying vacant. It was prone to damage by rain and snow thereby affecting the lower portion of the same which is named as roof of late Shri M.L. Saxena, Advocate. Instead of impairing the premises, this construction has rather saved the lower portion of the building. The contention that more weight has been put on the Dhaji walls, is untenable, since, as already observed, the construction in question is of only a few cement sheets of light weight. Moreover, as stated by Shri S.P. Kapoor (RW-3), the weight is to fall on the columns in the lower storey, thus, leaving very less weight to be borne by the main wall. Moreover, as stated by Shri S.P. Kapoor (RW-3), the weight is to fall on the columns in the lower storey, thus, leaving very less weight to be borne by the main wall. This has remained in existence for a number of years and the respondents have not produced any evidence pointing out that in between this period, any damage has occasioned to the building in question. Mere temporary construction does not give rise to the presumption that value and utility of the building has been impaired. It has to be clearly established by clear and cogent evidence, since it is not only a question of law but also a question of fact." 42. Their Lordships of Hon'ble Supreme Court in Om Prakash v. Amar Singh and another, AIR 1987 SC 617 have held that material alteration means substantial change in character, form and structure of building without destroying its identity. In this case, the tenant had constructed a partition wall in a hall and tin shed in the open courtyard adjacent to the building. It was held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling instead; it was a temporary wall of 6 feet height converting the big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the building. Their Lordships have further held that the partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. It has been further held by their Lordships that taking into consideration the nature of the construction of the tin shed it could not be said to have altered the accommodation. Their Lordships have held as under (paras 5, 6, 7, 8 and 10):- "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 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. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S.B. Mathur v. K.P. Gupta, 1961 All LJ 137 construction of temporary wail enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature, was held not to constitute material alteration of the accommodation. In Dr. J.G. Gupta v. Bodh Mal, 1969 All LJ 477 a Division Bench of the High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom did not constitute material alterations as the same were temporary and they could be removed without causing any damage to the accommodation. In Sita Ram Sharan v. Johri Mal, 1972 All LJ 317 : AIR 1972 All 317 a Full Bench held that construction which converted the tenanted premises into double storey structure, materially altered the accommodation. Another Division Bench of the High Court in Baldev Dass v. Ram Khilawan, (1979) 5 All LR 44 held that a partition wall in a shop converting the same into two portions for the convenient use of the same did not amount to material alteration. Another Division Bench of the High Court in Baldev Dass v. Ram Khilawan, (1979) 5 All LR 44 held that a partition wall in a shop converting the same into two portions for the convenient use of the same did not amount to material alteration. These decisions were rendered on the facts available on the record of those cases. In deciding this question the Court has to consider whether the constructions have been made with the consent of the landlord and if so, whether those constructions are of such substantial nature which make material alterations in the accommodation. The findings of the Court regarding constructions would be finding of fact, but the question whether the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles. In the instant case the disputed constructions which the High Court has found to be 'material alteration' consists of a partition wall of 6 feet height in a hall converting the same into two rooms and a tin shed marked by letters CDGH on the Eastern side on an open land adjacent to the accommodation. The trial Court held that the partition wall did not change the front or structure of the accommodation, it being temporary in nature, did not constitute material alterations in the accommodation. This finding of the trial court was not challenged by the landlord before the Civil Judge. But the High Court has held that the partition wall constituted 'material alteration'. The findings recorded by the trial Court and the relevant evidence placed before us by the parties clearly show that the partition wall did not actually partition the hall converting the same permanently into two rooms. The partition wall was, made without digging any foundation of the floor of the room nor it touched the ceiling instead; it was a temporary wall of 6 feet height converting the 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 other disputed item relates to the construction of tin shed. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. The other disputed item relates to the construction of tin shed. The respondent alleged that the appellant had constructed a tin shed shown by letters ABCD in the site plan attached to the plaint in an unauthorised manner without obtaining his consent. All the three Courts have recorded concurrent finding that the tin shed shown by the letters ABCD consists of two portions. One portion is shown by letters AGHB and the other shown by GHCD. The trial Court as well as the first appellate Court both have recorded findings that the portion of the tin shed shown by letters CDGH had been constructed by the appellant without the consent of the respondent landlords, but the rest of the tin shed shown by the letters ABGH had been constructed by the appellant after obtaining permission of the Cantonment Board and the erstwhile landlord. The First Appeal Court held that the tin shed shown by letters CDGH did not constitute material alteration as the constructions were temporary in nature which would be removed at any time without causing any damage to the accommodation. The First Appeal Court further held that the basic structure of the accommodation let out to the appellant was not affected at all by the disputed tin shed as it had been constructed on the open land adjoining the accommodation and it was enclosed by Bamboo structure, and Kuccha wall which did not effect any change in the form or the structure of the tenanted building. In second appeal the High Court held that since two sides of the tin shed were resting on the pacca wall it constituted a material alteration in the accommodation. We have been taken through the Commissioner's report filed before the Lower Court and on perusal of the same we find that the wall which had been constructed for the tin shed was kuccha made of bricks and mud and the bamboo tatters were used for enclosing it. The findings recorded by the First Appeal Court and the Commissioner's report make it evident that the tin shed was constructed on an open land, it was temporary in nature and it could be removed without causing any damage to the building. The findings recorded by the First Appeal Court and the Commissioner's report make it evident that the tin shed was constructed on an open land, it was temporary in nature and it could be removed without causing any damage to the building. One portion of the tin shed was already in existence on the open land adjacent to the accommodation, the appellant merely extended that tin shed which did not make any substantial change either in the form or structure of the building. There is no material on record to sustain the findings of the High Court that the appellant had constructed pacca walls on three sides of the tin shed; instead the Commissioner's report is contrary to it. In the circumstances the construction of tin shed could not be held to have materially altered the accommodation. Learned Counsel then urged that this Court should not interfere with the findings of fact recorded by the High Court. We find no merit in the submission. The question whether disputed constructions constitute material alterations is a mixed question of fact and law. The High Court in second appeal interfered with the findings of fact recorded by the lower Courts on the question whether tin shed and the partition wall constituted material alterations. The learned single Judge placing reliance on the observations of the Full Bench decision in Sita Ram's, case ( AIR 1972 All 317 ) (supra) held that the disputed construction even though temporary in nature, which could be removed without causing any damage to the accommodation, would fall within the mischief of material alterations. The High Court committed error in interfering with the findings of the First Appeal Court. We accordingly allow the appeal, set aside the order of the High Court and restore the judgment and decree of the First Appeal Court. In the circumstances of the case there would be no order as to costs." 43. Their Lordships of Hon'ble Supreme Court in Brijendra Nath Bhargava and another v. Harsh Wardhan and others, (1988) 1 SCC 454 have held that no definition can be drawn of the material alteration. In the circumstances of the case there would be no order as to costs." 43. Their Lordships of Hon'ble Supreme Court in Brijendra Nath Bhargava and another v. Harsh Wardhan and others, (1988) 1 SCC 454 have held that no definition can be drawn of the material alteration. But the material construction could 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. In this case, the tenant had constructed a wholly wooden structure inside the show room making the show room a cabin and a balcony or dochatti on the roof of the cabin with a wooden staircase from inside the cabin to go to the balcony. Their Lordships of Hon'ble Supreme Court have held as under (paras 7 and 12):- "Learned counsel for the respondents, on the other hand referred to the plain Para 5 quoted above and also the written statement Para 5 after amendment and contended that on these allegations the Courts below came to a finding of fact. However it was not disputed that what construction has been made is a finding of fact but whether it amounts to material alteration or not is undoubtedly a question of law. It was further contended by the learned counsel that as all the three Courts have concurrently came to the conclusion that, it is not open to this Court to reopen that question. It was also contended by learned counsel that the inspection note by the learned trial Judge, no doubt, has been relied upon but it is contended that as observed by the learned Judge of the High Court it is relied upon only for purposes of appreciating evidence but unfortunately the learned counsel for the respondents himself could not refer to any other evidence except the statement of the tenant the appellant himself and apart from it even the allegations contained in para 5 of the plaint do not clearly make out how this construction is such which was affixed on the wall and on the basis of which an attempt was made to contend that in fact it could not be removed unless the walls are demolished. This argument and the inferences drawn by the Courts below apparently are not based on any evidence at all. The learned counsel contended that the balcony is strongly annexed to the walls with the beams and the structure is 10' X 25' to the entire breadth of the showroom and also contended that it could not be removed without damaging the walls and thereby damaging the property itself but unfortunately learned counsel could not refer to any evidence in the case which could suggest these facts which were alleged by the learned counsel during the course of his arguments. Counsel in support of his contentions placed reliance on the decision of this Court in Om Prakash's case ( AIR 1987 SC 617 ) (supra) and also on Babu Manmohan Das Shah v. Bishnu Das, (1967) 1 SCR 836 : AIR 1967 SC 643 and it was also contended that question of waiver does not arise, according to the learned counsel, as if the landlord wants not to raise any objection, he could grant a permission to the tenant but in absence of that the question of waiver could not be raised. Learned counsel attempted to contend that Bhonri Lal who filed this suit in 1974 filed the suit on that ground and therefore it could not be said that he waived the right to file a suit on this ground. Learned counsel did not refer to the statement of Bhonri Lal himself in cross examination. The next question which was debated at length by learned counsel for parties is as, to whether the said construction of the wooden dochatti or a balcony is a material alteration within the meaning of Section 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. 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 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 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 Section 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 form and structure of the accommodation. 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 form and structure of the accommodation. 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: ( SCC p. 463, para 6) "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: (SCC p. 464, para 7) "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: (SCC pp. 645-66, para 9) "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., 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: (SCC p. 560, para 2) "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 Article 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 'and' 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 substantially 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 Dochatti 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." 44. Their Lordships of Hon'ble Supreme Court in Waryam Singh v. Baldev Singh, 2002 (2) RCR 594 have held that every addition and alteration does not materially impair value and utility. It has to be proved that the value or utility has been materially impaired. In the instant case the tenant had covered verandah by constructing two side walls and putting a rolling shutter in front, no fixture removed nor flow of air and light stopped. Their Lordships have held that the value and utility not impaired, rather it increased value and utility. Their Lordships have held as under (paras 11 and 16):- "Mr. Walia next relied upon the case of Narain Singh v. Bakson Laboratories, reported in 1981 CLJ (Civil) 414. In that case, the tenant had enclosed the verandah on the front and back side of the building and had opened a door by the wall of the room. It was held that this diminished the value of the premises. With great respect to the learned Judges concerned, we find over selves unable to accept this proposition. As stated above it is not every addition or alteration which could be said to materially impair value or utility. It has to be proved that the value or utility has been material impaired. Merely because some additions or alterations are made it cannot be presumed or inferred that the value or utility of the building has been impaired. This authority cannot be said to be laying down the correct proposition of law. It has to be proved that the value or utility has been material impaired. Merely because some additions or alterations are made it cannot be presumed or inferred that the value or utility of the building has been impaired. This authority cannot be said to be laying down the correct proposition of law. However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility the Appellant has led no evidence at all. The submission has been that no evidence was required to be led as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case there is no proof, like in Vipin Kumar's case (supra), that free flow of light and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. In the absence of any proof of material impairment in value or utility, the High Court was right in concluding that no decree for eviction could be passed. We, therefore, see no reason to interfere with the Judgment of the High Court." 45. The landlord has not led any cogent and convincing evidence so far as the ground of nuisance is concerned except the self serving statement of PW-2 whereby he has deposed that the tenant was cooking food in the house and there was no exhaust for the smoke. Merely that there is no provision for letting out of smoke and waste water will not amount to nuisance. The landlord has not led any evidence by producing any witness from the neighbourhood to prove that the acts of the tenant have caused any nuisance in the premises to the landlord or in the neighbour. 46. Thus, the findings recorded by the learned appellate authority that the landlord has proved the change of user and partition of room has materially impaired the value and utility of the building and the tenant is causing nuisance, are liable to be set aside. 46. Thus, the findings recorded by the learned appellate authority that the landlord has proved the change of user and partition of room has materially impaired the value and utility of the building and the tenant is causing nuisance, are liable to be set aside. 47. Accordingly, in view of the observations and discussion made herein above, what emerges is that - (i) the present petition was not maintainable in view of Order 23 Rule 1 read with Section 18 of the Act; (ii) the landlord has failed to prove the change of user/wrongful user of the premises from nonresidential to residential; (iii) the landlord has failed to prove that the partition raised by the petitioner has materially impaired the value and utility of the premises. 48. No other point was urged. 49. Consequently, for the foregoing reasons, the revision petition is allowed. The judgment passed by the learned appellate authority, dated 8.6.2005 is set aside and the judgment of the learned Rent Controller (V), Shimla, dated 6.6.2003 is upheld. The pending application(s), if any, also stands disposed of. No costs.