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2012 DIGILAW 644 (PNJ)

Suraj Bhan v. Daljit Singh

2012-05-01

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Tenant-Suraj Bhan has filed this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (in short, the Act) assailing judgment dated 05.08.2006 passed by learned Appellate Authority, Patiala. 2. Respondent-landlord Daljit Singh filed ejectment petition against tenant-petitioner under Section 13 of the Act seeking eviction of the petitioner from demised shop on the ground that the tenant has made material alterations and structural additions in the demised shop and thereby materially impaired the value and utility of the demised shop. 3. The tenant in his written statement denied that he had materially impaired the value and utility of the demised shop. It was pleaded that vide rent note dated 13.02.1993, the landlord increased the rate of rent and permitted the tenant to fix shutter in front side of the demised shop and the shutter was accordingly affixed by the tenant. No other material structural alteration or addition has been made. Various other pleas were also raised. 4. Learned Rent Controller, Patiala vide judgment dated 04.02.2002 dismissed the ejectment petition. However, appeal against the said judgment preferred by the landlord has been allowed by learned Appellate Authority, Patiala vide impugned judgment dated 05.08.2006 and thereby ejectment petition filed by the landlord has been allowed and tenant has been ordered to vacate the demised shop and handover its vacant possession to the landlord. Feeling aggrieved, tenant has filed this revision petition. 5. I have heard learned counsel for the parties and perused the case file. 6. Material additions and alterations alleged by the landlord as summed up in paragraph 1 of judgment of the Rent Controller and referred to by counsel for the landlord are reproduced hereunder: “(a) Entire front wall alongwith wooden door were removed and front of the door of the shop was by shutter. (b) The floor of the whole shop was laid including platform. (c) The wooden opening between first and second portion of intervening wall and affixed wooden door. (d) Pucca permanent shelves in the second portion of the shop in dispute by digging in the eastern wall. (e) Break the pucca steps of stair case in entering the shop” 7. (b) The floor of the whole shop was laid including platform. (c) The wooden opening between first and second portion of intervening wall and affixed wooden door. (d) Pucca permanent shelves in the second portion of the shop in dispute by digging in the eastern wall. (e) Break the pucca steps of stair case in entering the shop” 7. Counsel for the petitioner-tenant contended that vide admitted rent note dated 13.02.1993 Annexure P-1 (Exhibit R-3), the tenant was permitted by the landlord to install shutter instead of door of the shop and accordingly the shutter was installed. Repair of the floor had to be carried out due to installation of shutter. It was also argued that old wooden door in the front (which was replaced by shutter) was installed in the opening existing between two portions in the intervening wall. Some change in the steps of the shop in the front had to be made on account of level of road and level of shop. It was argued that the Appellate Authority did not even refer to the rent note which was material piece of evidence authorizing the tenant to replace the door with shutter. It was also argued that Appellate Authority also relied on judgment regarding eviction of tenant from adjoining shop although the same had no relevance with the demised shop. Counsel for the petitioner also contended that alleged alterations (except installation of shutter as permitted by rent note) do not amount to material impairment of value or utility of the demised shop within the meaning of Section 13(2)(iii) of the Act. 8. On the other hand, counsel for respondent-landlord vehemently contended that alterations and additions made in the demised shop by the tenant have been proved by evidence of technical expert as well as Local Commissioner and by the photographs produced by the landlord in evidence, in addition to the other evidence. It was contended that the said alterations and additions have resulted in material impairment of value and utility of the demised shop, which has to be seen from the angle of the landlord and not from the angle of the tenant. Reliance in support of these contentions has been placed on two judgments of this Court in case of Satish Kumar & Co. Reliance in support of these contentions has been placed on two judgments of this Court in case of Satish Kumar & Co. versus Krishan Gopal reported as 1998(2) RCR (Rent) 386 and Surinder Kumar Chadha of Ambala versus Smt. Raj Rani Mehta reported as 1992 HRR 362 and judgment of Hon’ble Supreme Court in the case of Vipin Kumar versus Roshan Lal Anand & others reported as 1993 HRR 341. 9. I have carefully considered the rival contentions. Rent note Exhibit R-3 specifically permitted the tenant to replace the front door of the shop with shutter. There was written consent of landlord for the same. Even learned counsel for the landlord did not dispute this fact. Accordingly shutter was installed instead of the front door with the written consent of the landlord. So the same cannot be taken into consideration to hold that the tenant has made any structural alteration in the demised shop without written consent of the landlord. The contention of counsel for the landlord that the shutter was installed in entire width of the shop instead of limited width of the existing door would not entitle the landlord to seek ejectment of the tenant from the demised shop. Ordinarily, as per prevailing trend and practice, shutter is installed in entire width of the shop unless the width is very large. In the instant case, counsel for the landlord stated that width of the shop is 11 feet only and there are two side pillars of the width of 9 inches each and the existing door was of 5 feet width. In this view of the matter, it cannot be said that the tenant made material structural alteration by installing the shutter in almost entire width of the shop when the tenant had the written consent of the landlord to replace the existing door with a shutter. 10. Other alterations which have been proved are not sufficient to hold that the same have materially impaired the value or utility of the demised shop even from the view point of the landlord. There was opening without door shutter in the intervening wall of two portions of the shop. However, if the tenant affixed the existing front door (which was replaced with shutter) in the said opening, it would not amount to any material alteration of the demised shop. There was opening without door shutter in the intervening wall of two portions of the shop. However, if the tenant affixed the existing front door (which was replaced with shutter) in the said opening, it would not amount to any material alteration of the demised shop. The said door which would remain open while the shop is open would not diminish air or light for the back portion. The said opening has not been permanently closed but has only been provided with a door and that too the existing front door of the shop. The said door has been gainfully used by the tenant for enhancing the value and utility of the shop instead of impairing the same. Some alterations in the floor or steps of the shop consequential upon installation of the shutter would also not amount to impairment, much less material impairment of value or utility of the demised shop. In this view, I am supported by judgment of Hon’ble Supreme Court in the case of Om Pal versus Anand Swarup (dead by his legal representative) reported as 1988(2) PLR 699 wherein it has been laid down that construction of chabutra (platform), almirah, opening of window or closing of a verandah by temporary structure or replacing of leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building so as to make the tenant liable to eviction under Section 13(2) (iii) of the Act. In view of this authoritative judgment of Hon’ble Supreme Court also, the tenant cannot be said to be liable to eviction from the demised shop in the instant case. 11. Judgments cited by counsel for respondent-landlord are not attracted to the facts of the case in hand. In the case of Satish Kumar (supra), tenant had made unauthorized construction which was held to impair the utility of the building although it may have increased the value of the building. In that case, the tenant had raised pucca structure on the platform in front of the shop and had extended the length of the shop by 2 feet 11.5 inches in front and shutter had been affixed in front of the shop changing even the internal area of the shop. Open space in front of the shop had also been covered and included in the shop. Open space in front of the shop had also been covered and included in the shop. Obviously facts of the said case are completely distinguishable from the facts of the case in hand. In the case of Vipin Kumar (supra), tenant constructed a wall in verandah of the demised shop and put up a door, thereby converting the verandah into room and thus impaired the value and utility of the building by stopping the flow of light and air. Said judgment is also, therefore, distinguishable on facts. In the case of Surinder Kumar Chadha (supra), the tenant had demolished boundary wall to widen the gate. In the instant case, however, shutter has been installed with the written consent of the landlord. So this judgment is also not of any assistance to the landlord. 12. Learned Appellate Authority, as noticed hereinbefore, did not refer to the rent note which permitted the tenant to install shutter. Finding of the Appellate Authority is, therefore, vitiated. Moreover, the Appellate Authority referred to judgment of eviction of adjoining shop. It is beyond comprehension as to how said judgment could be relevant for deciding instant eviction petition. It may be added that as per grounds of appeal submitted by the landlord before the Appellate Authority, eviction of tenant from the adjoining shop was on the ground of having become unfit and unsafe for human habitation but the said ground has not even been pleaded by the landlord regarding the demised shop in the instant case. Consequently judgment relating to the adjoining shop relied on by learned Appellate Authority is completely irrelevant and has been erroneously relied on by the Appellate Authority, thereby vitiating its finding. 13. It is thus apparent that learned Appellate Authority committed grave error in allowing appeal of the landlord and ordering ejectment of the tenant. Landlord has failed to prove the ground of ejectment pleaded by him. Finding of the Appellate Authority to the contrary is unsustainable being based on misreading and misappreciation of evidence and ignoring the material evidence. 14. Resultantly the instant revision petition is allowed. Impugned judgment dated 05.08.2006 passed by the Appellate Authority is set aside. Judgment of learned Rent Controller dismissing the ejectment petition filed by the landlord is restored. The parties are left to suffer their respective cost throughout. ---------0.B.S.0------------