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2015 DIGILAW 3301 (ALL)

Mukesh Chandra Aggrawal v. Kamlesh Jain

2015-10-16

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar,J. The petitioner/tenant is assailing the order dated 1 July 2010 passed in SCC Revision No. 57 of 2008 by the Additional District Judge/Special Judge, SC/ST Act, Jhansi arising out of an order dated 9 April 2008 passed by the Small Cause Court at Jhansi decreeing the suit for eviction and damages. The petitioner is a tenant of two shops of which the respondent is the owner and landlord. The plaint case of the respondent/landlord was that the petitioner is a tenant since 1991 who defaulted in payment of rent, further, it was alleged that the petitioner had removed the partition wall of the two shops converting it into a single shop, therefore, had materially altered the face and structure of the shop. The respondent, therefore, terminated the tenancy by notice dated 16 June 2006. The trial court formulated six issues upon exchange of pleadings. The suit was decreed. 2. Upon considering the material and evidence available on record the revisional court affirmed the judgment and decree on the issue of material alteration but reversed the finding on the issue regarding default of rent. 3. The petitioner is assailing the order in writ jurisdiction under Article 226 of the Constitution of India. 4. Learned counsel for the petitioner at the out set would submit that in view of the Constitution Bench decision rendered in Radhey Shyam and another vs. Chhabi Nath and others1. The writ petition under Article 226 of the Constitution would not lie against the judgment and decree passed in civil proceedings, therefore, would contend that the petitioner shall confine the petition within the parameters of Article 227 of the Constitution of India. 5. The sole point for consideration is confined to the material alteration in terms of Sub-section 22(c) of Act 13 of 1972. 6. Submission of learned counsel for the petitioner is that the removal of the partition wall from the adjoining shops were undertaken by the landlord himself, as such, the tenant requiring prior permission was not warranted in terms of Section 22(C) of the Act. The Courts below have decreed the suit merely by recording that, since their being no written consent of the landlord for altering the structure, therefore, it would follow that the tenant had made material alteration defacing the shop. The material and evidence available on record would necessarily show otherwise. The finding, therefore, is per se perverse. 7. The Courts below have decreed the suit merely by recording that, since their being no written consent of the landlord for altering the structure, therefore, it would follow that the tenant had made material alteration defacing the shop. The material and evidence available on record would necessarily show otherwise. The finding, therefore, is per se perverse. 7. Further, the landlord though filed his written statement but failed to appear in the witness box to state his own case on oath nor offered himself in cross-examination, therefore, an adverse inference would be drawn against him in view of the Section 115 of the Evidence Act. 8. In rebuttal, learned counsel appearing for the respondent-landlord would submit that the Court below have recorded a concurrent finding of fact regarding the material alteration which cannot be interfered under Article 227 . 9. The Court below framed issue no. 4 as follows: - (iv) whether the defendant/tenant has given effect to the removal of the partition wall and that too without the consent of the landlord. 10. The notice dated 16 June 2006 determining the tenancy would, inter alia, reflect that the tenant removed the partition in violation of the contract, therefore, the tenancy is being terminated. The notice was silent as to when the partition wall was removed. In Paragraph 5 of the plaint it was averred that in violation of the terms of the contract the partition wall was removed in the first week of June, 2006 by converting it into a single shop thus making material alteration. The petitioner denied the assertion made in the plaint and would state that it was the landlord who got the partition wall removed in his own presence sometimes in the month of September 2005, therefore, the contention that the petitioner removed the partition wall without consent was incorrect. 11. A similar stand was taken by the petitioner in reply to the notice terminating the tenancy. It was stated that the partition wall was removed by the landlord quite sometimes in the past, had the petitioner removed the wall, the landlord who resides on the first floor of the shop would have objected to such removal. The question of taking consent by the petitioner did not arise because the landlord himself got the wall removed in his presence. 12. The question of taking consent by the petitioner did not arise because the landlord himself got the wall removed in his presence. 12. The Court below decided the issue in favour of the respondent/landlord merely for the reason that the tenant failed to produce any written consent of the landlord to establish that the removal of the wall was consented by the landlord. 13. In my opinion the issue has been incorrectly decided and is unsustainable on facts and law. The Courts below have taken notice of the fact that the tenant had stated in written statement that the partition wall was removed by the landlord sometimes in September 2005 and not in first week of June 2006 as alleged by the landlord. The examination-in-chief and cross-examination of the wife of the petitioner, who was also the power of attorney holder on behalf of the handicapped tenant, Anand Shastri (DW2) and Naresh Kumar Sahu (DW3) clearly stated that the partition wall was removed by the landlord in 2005. DW3 who is in the trade of installation of shutters, as well as false ceiling, deposed before the trial Court that at the time when the said partition wall was being removed, he was called upon by Sri Rishabh Kumar Jain (husband of the landlady) to protect the fall ceiling of the shop from getting eroded. It was further narrated by the defense witness that at the same time Sri Rishabh Kumar Jain was getting constructed an office in the same building for his son, the entire demolition of the partition wall was done on the specific directions and control of Sri Rishabh Kumar Jain. DW2 on oath stated that since the partition wall was getting damp due to the moisture rising from the basement thus causing damage to the building, therefore, Sri Rishabh Kumar Jain, got removed the partition wall in his own presence. The Courts below have committed an error in not discussing the evidence which was specific and categorical, therefore, committed an error in not deciding the fact as to whether the landlord himself got the partition wall removed or it was removed by the tenant, whereas, the evidence available on record would categorically establish that the partition wall was got removed by the landlord in order to protect the structure from dampness. 14. 14. The landlord, who is the resident on the first floor of the disputed property would certainly have objected the removal of the partition but there being no occasion to protest the removal of the wall when the structure was removed at the behest of the landlord himself. The case set up by the landlord in the plaint that the structure was removed in September 2006 is not borne out from the material and evidence available on record. The petitioner on the contrary was able to establish and prove by independent witnesses that the partition wall was removed by the respondent-landlord. The finding, therefore, on issue no. 4, as to whether the tenant altered the structure without the consent of the landlord is per se perverse. 15. Before, clause (c) of Section 20(2) of the Act can be applied, the plaintiff in order of succeed must establish the following: i. That the tenant has made or permitted to be made construction of structural alteration in the building; ii. That this was done without the permission in writing of the landlord ; and iii. That the said construction or structural alteration is likely either; a. to diminish its value ; or b. to diminish its utility ; or c. to disfigure it. 16. The above analysis of the section will show that any structural alteration or construction in the building in the absence of written consent of the landlord per se is not enough for decreeing the landlord's suit for eviction for he must further establish that the construction complained of had resulted in either diminishing the value or utility of the building or in disfiguring the same. If none of these is not proved the suit for eviction on this ground must fail. 17. It is not every kind of construction or structure alteration which will give rise to a cause of action for evicting a tenant. The offending construction or structural alteration must be of the type as was likely to result either in diminishing the value or utility of the building or in causing disfigurement thereof. In the absence of this, the raising of construction, making structural alteration per se will not give cause of action for eviction of the tenant. 18. The offending construction or structural alteration must be of the type as was likely to result either in diminishing the value or utility of the building or in causing disfigurement thereof. In the absence of this, the raising of construction, making structural alteration per se will not give cause of action for eviction of the tenant. 18. Even presuming that the alteration was effected by the tenant without the consent of the landlord even then the petitioner could not be evicted unless the courts below would have recorded as to how and why, the utility of the two shops suffered. No evidence has been pointed out to support the conclusion that the utility of the two shops as they originally stood has suffered as a consequence, merely on the removal of the partition wall. There is no pleading to that effect in the plaint nor any assertion that the utility of the shop drastically diminished and would reduce the prospect of the nature of the business activity which was carried out at the time of letting out, further such business or activity is no longer feasible in view of the size of the larger shop. (Refer: Mooli vs. Vth Additional District Judge, Mathura and others, 1989 (2) ARC 152 and Kedar Nath Baij Nath and others vs. Sri Ram Chandra Ji, Sri Janki Ji, Virajman Mandir through L. Ramdas Ji Trust, 1990 (2) ARC 124) 19. Thus in my view, the mere fact that the two shops have been converted into a single shop cannot per se justify that the utility of the two shops diminished or it has become automatically disfigured. The Courts below have committed an error in fact and law while adjudicating on the issue, further, there being no pleading to that effect and no evidence was led by the respondent-landlord, therefore, merely by stating that the tenant failed to produce any written consent, would not be sufficient to evict the petitioner in terms of Section 20(2)(c) of the Act. 20. In the result, the petition succeeds and is hereby allowed, order dated 9 April 2008 and order dated 1 July 2010 passed by the Courts below is quashed, the release application is, accordingly, dismissed. 21. No order as to cost.