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Allahabad High Court · body

2014 DIGILAW 2003 (ALL)

Ramkali v. Qamar Alam

2014-07-09

PANKAJ MITHAL

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JUDGMENT Pankaj Mithal, J. – Heard Sri Yogesh Agarwal, learned counsel for the tenants, Sri Rajesh Gupta, learned counsel for the landlords and perused the pleadings exchanged between the parties. The dispute is regarding house No.201, Lal Kurti Bazar, Meerut Cantt. The landlords instituted suit for eviction of the tenant from the said house after terminating the tenancy on the ground of default and material alteration. The suit was dismissed by the court of first instance holding the notice to be invalid and that there is no default and material alteration. 2. The landlords filed revision under Section 25 of the Provincial Small Causes Court Act, 1887 and the same has been allowed by the impugned judgment and order. 3. The revisional court approved the finding of the court of first instance regarding validity of the notice and that there is no default. However, only on the ground of material alteration the revision has been allowed and the suit for eviction has been decreed. 4. Aggrieved by the aforesaid revisonal order both parties have have preferred these separate writ petitions. 5. The only argument of Sri Yogesh Agarwal, learned counsel for the tenants is that there is no material alteration within the meaning of Section 20(2) of the U.P. Act No.13 of 1972 and that the revisional court has no jurisdiction to interfere with the findings of fact recorded in this regard by the court of first instance. 6. On the other hand, Sri Rajesh Gupta has submitted that as tenants have accepted raising of certain constructions in the Sahan, the revisional court rightly held that in view of the admitted fact the construction so raised amounted to material alteration. The construction even of a temporary nature would be covered by material alteration. 7. In the connected writ petition of the landlords he has tried to assail the findings regarding no default. 8. I have gone through the judgment and order of the revisional court as well as that of the court of first instance. 9. The respondent/landlord have alleged three types of material alteration, namely; (i) tenants have constructed a latrine, a bathroom and a kitchen in the Sahan; (ii) closed the door in the Veranda; and (iii) closed another eastern door in the Veranda, all of which have affected the air and light of the house. 10. 9. The respondent/landlord have alleged three types of material alteration, namely; (i) tenants have constructed a latrine, a bathroom and a kitchen in the Sahan; (ii) closed the door in the Veranda; and (iii) closed another eastern door in the Veranda, all of which have affected the air and light of the house. 10. The revisional court records that D.W.1 Rameshwar Dayal in his statement has accepted construction of a Rasoi in Veranda and that the said construction may be of a temporary nature but it amounts to material alteration as has been held by the High Court in Sardar Amrik Singh Vs. IVth Additional District Judge, Kanpur Nagar and others ARC 1996 (2) 188= 1997 (29) ALR 6 (Sum.). Secondly, it has been held that P.W.1 in his statement has stated that the construction raised by the petitioner/tenant affects the ventilation of the house which amount to materially altering the house. 11. Section 20(2)(c) of the Act provides that no suit for eviction of a tenant except for the grounds specified therein shall be instituted and one of the grounds is that the tenant has without permission in writing of the landlord made or permitted to be made any construction or structural alteration in the building as is likely to diminish its value or utility or disfigure it. 12. A plain reading of the aforesaid provision would indicate that it is not only the construction or structural alteration but diminishing the value or utility or disfiguring the property by such construction which is essential to bring the construction/alteration within the meaning of material alteration. 13. In the instant case the revisional court though has recorded finding that construction/alteration of temporary nature have been made by constructing a kitchen in the Sahan but there is no finding that such construction has diminished the utility or value of the house or resulted in disfiguring of the same. It relying upon the statement of P.W.1 records that the alteration so made by the tenants affects the ventilation, light and air of the house, nonetheless there is no specific finding that the said alteration/structural change amounts to diminishing the utility and value of the house. 14. A Division Bench of this Court in Dr. Jai Gopal Gupta and others Vs. 14. A Division Bench of this Court in Dr. Jai Gopal Gupta and others Vs. Bodh Mal 1969 ALJ (sic.).while considering a similar provision of material alteration under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed as under: "In this case the tenant had made alterations in the building which was let to him. And they were to be material alterations. In the case before us the tenant has not touched the house which was let to him. It remains as it was when it was let out to him. He has, however, added two rooms on a portion of the courtyard. These additions are a kitchen and a bath-room. They appear to be necessary for the proper and convenient use of the house let out to him. They have no foundations, although they are built of pucca bricks and have been plastered with cement. Essentially they are of a temporary character. They can be demolished at any time without causing any damage to the accommodation. Their temporary character is also evinced by the tenant's use of a side of a bed as a support for the roof of one of them. They also occupy only a small portion of the court-yard. It cannot be said that they have changed the front or the structure of the house let to the tenant. It is difficult to say on the facts of this case that the constructions made by the tenant have materially altered the accommodation." 15. The Division Bench was ceased with a matter wherein similar constructions as in the instant case i.e. a kitchen and a bath-room in the open court yard was made temporarily without any foundation but with pucca bricks and cement and the Court held that such construction which occupies a very small portion and is not visible from outside would not amount to materially altering the accommodation. 16. In view of the above, the construction alleged to have been raised in this case also would not be material alteration under the provisions of Section 20(2)(c) of the Act. Accordingly, the impugned revisional order dated 23.2.2008 cannot be sustained in law and is hereby quashed. 17. 16. In view of the above, the construction alleged to have been raised in this case also would not be material alteration under the provisions of Section 20(2)(c) of the Act. Accordingly, the impugned revisional order dated 23.2.2008 cannot be sustained in law and is hereby quashed. 17. In so far as the connected writ petition preferred by the landlords i.e. Writ - A No.22106 of 2008 is concerned, the finding on rent and default is a finding of fact concurrently recorded by the courts below and, therefore, requires no interference. 18. Accordingly, writ petition No.14970 of 2008 is allowed and writ petition No.22106 of 2008 is dismissed.