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2016 DIGILAW 1667 (HP)

Shadi Lal Sharma v. Mool Chand Aggarwal

2016-08-10

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this revision petition, the petitioner has challenged the judgment passed by learned Appellate Authority, Chamba Division, Chamba, in Rent Appeal No. 4 of 2010, dated 01.10.2010, vide which, learned Appellate Authority has upheld the Order passed by learned Rent Controller, Dalhousie, in Rent Petition No. 1 of 2007, dated 30.04.2010, whereby learned Rent Controller had partly allowed the rent petition of the landlord as far as the arrears of rent was concerned but rejected the claim of the petitioner therein regarding impairment of value and utility. 2. Brief facts necessary for the adjudication of the present case are that the petitioner herein i.e. the landlord filed petition for eviction of respondent from the shop i.e. premises shop subject matter of the petitioner before learned Rent Controller, Dalhousie, on the ground that the respondent was in arrears of rent w.e.f. March, 2003 and also on the ground that the respondent without the consent of the petitioner had covered open verandah by removing wooden planks and ‘Kaddies’ and also by removing wooden stairs and poles, had put lintel over it. As per the petitioner, the respondent had removed wooden door and extended the shop including the space of verandah in the shop and put an iron shutter in front of the said shop and also removed the side walls and raised concrete pillars by removing wooden planks from the side of the shop and raised bricks wall and as such, he had changed the entire front, which acts had impaired materially the value and utility of the building. 3. In reply, the respondent though admitted the relationship between the parties of landlord and tenant but besides disputing dimension of the shop as were claimed by the petitioner he challenged the rate of rent and stated that the shop in question had been rented out at the rate of Rs.166/- per month and not at the rate of Rs.800/- per month, as was claimed by the petitioner. The factum of respondent being in arrears of rent was also disputed and according to the respondent, rent for the year 2002 amounting to Rs. 2000/- was personally received by the petitioner by way of a valid receipt and rent for the year 2003 was also received by him personally on 03.04.2005 though no receipt was issued in lieu of the same. 2000/- was personally received by the petitioner by way of a valid receipt and rent for the year 2003 was also received by him personally on 03.04.2005 though no receipt was issued in lieu of the same. Rent for the year 2004-05 amounting to Rs.4000/- was also sent by him to the landlord by way of Demand Draft No. 136432 dated 14.08.2006 drawn upon P.N.B. Bakloh Cantt vide registered letter on 14.08.2006. The tenant also expressed his readiness to pay the rent w.e.f. 01.01.2004 onwards at the rate of Rs.166/- per month. The tenant also disputed the allegation of having impaired materially the value and utility of the building by way of effecting changes as were alleged by the landlord. Though he admitted having carried out minor repairs but according to him, the same were carried out about 10-15 years back and that too with the permission of the landlord. As per the tenant, the shutter was affixed with the verbal consent of the landlord about 4 years back to safeguard the stock kept in the shop and according to the tenant, it had rather increased the value of the structure. Accordingly, on the basis of the said submissions, the tenant stated that there was no merit in the petition and the same be dismissed. 4. In rejoinder filed by the landlord, the contentions raised in the eviction petition were reiterated. According to the landlord, the shop was rented at the rate of Rs.166/- initially but the said rent stood enhanced with the consent of the tenant to Rs.800/- per month w.e.f. December, 2002 and respondent had paid amount of enhanced rent only for two months and thereafter, no rent was paid for the year 2003 onwards. The receipt of rent for the year 2003 to 03.04.2005 was denied by the landlord and he also denied payment of rent by way of demand draft etc. as was being claimed by the tenant. According to the landlord, the tenant had applied for grant of permission to the Cantonment Board to affix the shutter on 20.06.2002 on behalf of the father of the petitioner who incidentally had died on 15.09.1974. However, no such permission was granted in favour of the tenant by the Cantonment Board. as was being claimed by the tenant. According to the landlord, the tenant had applied for grant of permission to the Cantonment Board to affix the shutter on 20.06.2002 on behalf of the father of the petitioner who incidentally had died on 15.09.1974. However, no such permission was granted in favour of the tenant by the Cantonment Board. According to the petitioner, the respondent had again moved an application for repair of the shop illegally on behalf of the petitioner without his consent, which also stood rejected by the authorities. Thus, according to the landlord, despite refusal by the authorities concerned, the respondent had altered the existing shop. 5. On the basis of the pleadings of the parties, learned Rent Controller framed the following issues:- 1. Whether the petitioner is entitled for eviction of the respondent on the ground of non-payment arrears of rent as prayed for? … OPP 2. Whether the petitioner is entitled for the eviction of the respondent on the ground that the respondent has impaired materially the value and utility of the building as alleged? … OPP 3. Whether the present petition is not maintainable? … OPR 4. Whether the petitioner is estopped by his own act and conduct to file the present petition? … OPR 5. Whether the petitioner has no cause of action and locus-standi to sue? … OPR 6. Relief. 6. On the basis of the material produced on record by the parties in support of their respective case, learned Rent Controller returned the following findings on the issues so framed:- Issue No. 1 : Partly yes. Issue No. 2 : No. Issue No. 3 : No. Issue No. 4 : No. Issue No. 5 : Accordingly decided. Relief : The petition of the petitioner is partly allowed as per operative part of the order. 7. The rent petition filed by the landlord was disposed of by learned Rent Controller vide his Order dated 30.04.2010 in the following terms:- “In view of my findings on above said issues, the petition partly succeeds and the respondent is held to be in arrears of rent w.e.f. March, 2003 @ Rs.166/- p.m. (which comes out to Rs.2000/- p.a.) till date to the tune of Rs.14324/-. The respondent is also liable to pay the interest @ 9% on arrears. The respondent is also liable to pay the interest @ 9% on arrears. If the respondent pays the arrears of the rent within 30 days of the order, the respondent shall not be evicted on the ground of arrears of rent. The claim of the petitioner regarding the impairment of value and utility is rejected. The parties are left to bear their own costs. A memo of cost be prepared accordingly. The file after due completion be consigned to record room.” 8. Feeling aggrieved by the said order passed by learned Rent Controller, the landlord preferred an appeal before learned Appellate Authority. Learned Appellate Authority dismissed the appeal so filed by the landlord by upholding the findings returned by learned Rent Controller, Dalhousie. 9. Feeling aggrieved by the said judgment passed by learned Appellate Authority, the landlord has filed the present petition. 10. Mr. S.D. Sharma, learned counsel for the petitioner, strenuously argued that both the Order and judgment passed by learned Courts below were not sustainable in law. According to Mr. Sharma, learned Courts below have totally mis-appreciated the position of law on the ground of materially impairing the value and utility of premises by a tenant. Mr. Sharma argued that learned Courts below did not appreciate the falsity of the plea taken by the respondent/tenant to the effect that the alterations were carried out with the consent of the petitioner. He also argued that learned Courts below did not appreciate the fact that the factum of impairment of the value and utility in question is to be judged from the view point of the landlord and not from the view point of the tenant. It was further submitted by him that learned Courts below also erred in not appreciating that independent access of petitioner to upper portion of shop was completely removed by the respondent and excessive weight was put on the old structure and the acts of respondent had not only materially impaired the value and utility of premises but divested the petitioner of that portion of premises which were not even let out to the tenant. He argued that the findings returned by learned Courts below that the petitioner was required to examine an expert in order to substantiate his case of materially impairing the value and utility of premises, was also totally incorrect because the said factum had to be viewed from the perspective of the landlord and it cannot be substituted by any person. According to him, the landlord was the best person to state as to in what way the acts of the tenant had materially impaired the value and utility of the premises. On these basis, he prayed that the present petition be allowed and the impugned order and judgment passed by learned Rent Controller and learned Appellate Court respectively be set aside. 11. On the other hand, Mr. Adarsh Sharma, learned counsel for the respondent argued that there was no merit in the present revision petition and there was no infirmity or perversity either with the Order passed by learned Rent Controller or with the judgment passed by learned Appellate Court. Mr. Sharma argued that it stood proved on record that the case had been filed by the landlord with an ulterior motive because the alterations were indeed carried out by the tenant with the consent of the landlord. Not only this, repairs were carried out far back and filing of the case as such also was not a bona-fide act of the landlord and the case was filed with sole intent of harassing the tenant. On these basis, he submitted that there was no merit in the revision petition and the same be dismissed. 12. I have heard learned counsel for the parties and also gone through the records of the case. 13. A perusal of the order passed by learned Rent Controller will demonstrate that while holding that the petitioner was not entitled for the eviction of the respondent on the ground that the respondent had impaired the value and utility of the building, it held that save and except only self serving statement of the landlord, the petitioner had not examined any expert who could say that the acts of the tenant had impaired the value and utility of the building. It further held that whether these alterations had been carried out by the respondent without the consent of the petitioner or with the consent of the petitioner was not material when the petitioner had failed to prove that these acts had impaired materially the value and utility of the building. On these basis, learned Rent Controller held that in the present case the petitioner had not proved how the acts of the enclosing the verandah by removing wooden planks, Kaddies, wooden poles and by putting iron shutter had impaired materially the value and utility of the demised premises. It further held that these acts in a business locality only increased the area of the shop and the value and utility. 14. Learned Appellate Court while upholding the order passed by learned Rent Controller held that no doubt additions had been made without permission of the petitioner or the Cantonment Board but no evidence had been placed on record by the landlord to the effect that value of the premises had been impaired in any manner. It further held that in case bye laws of Cantonment Board had been violated then action can be taken by the Cantonment Board as per the rules. It further held that if it was found that the respondent had moved applications in the name of a dead person i.e. father of the petitioner who was stated to have died in the year 1974 then in this regard legal proceedings can be initiated in accordance with law against the tenant. However, it held that this could not be done in the present proceedings and accordingly, it dismissed the appeal filed by the present petitioner. 15. Learned trial Court while holding that the petitioner had not examined any expert who could say that the acts of the tenants had impaired materially the value and utility of the building relied upon the judgment of Hon’ble Supreme Court in Waryam Singh Vs. Baldev Singh, 2003 (1) Civil Court Cases 61 (S.C.), in which case Hon’ble Supreme Court held:- “16. 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 and utility, the Appellant has led no evidence at all. 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 and 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 and utility had been diminished. We are unable to accept such a submission. In the case of 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. 16. Recently, Hon’ble Supreme Court in Vishwanath Prasad Jaiswal Vs. Satya Narain Sharma, (2014) 16 SCC 784 , has held : “4. The allegation made by the appellant landlord, against the respondent-tenant, on the subject of unauthorised construction/structural alteration is to the effect, that the shifting of the shutter affixed on the shop, had resulted in a structural alteration of the shop, which at the time of the lease was 22 ft.x11½ ft. By removing the aforesaid shutter, and by installing the said shutter at the opposite end of the verandah, the dimensions of the shop had been increased to 30 ft.x11½ ft. It is in the background of the aforementioned understanding of the unauthorised construction/structural alteration, that we must further determine, whether by the aforesaid action of the respondent, he had diminished the value of the premises, and/or had diminished the utility of the building, and/or had disfigured it? A positive finding on any of the above, would make out a claim, for the appellant-landlord under Section 20(2)(c) of the 1972 Act. 5. There is no material on the record of this case, to establish any of the aforementioned ingredients. A positive finding on any of the above, would make out a claim, for the appellant-landlord under Section 20(2)(c) of the 1972 Act. 5. There is no material on the record of this case, to establish any of the aforementioned ingredients. It is in the aforesaid circumstances, that we may venture to determine a finding on the said issues, at our own. Undoubtedly, the shop premises leased out by the appellant to the respondent originally measured 22ft.x11½ ft. Even if the dimensions of the shop have been increased to 30 ft.x11½ ft., it is not possible for us to record a conclusion, that the value of the shop has been decreased, nor has the utility of the shop been reduced. On the contrary, by increasing the dimensions of the shop, it may legitimately be concluded, that its value and utility had been enhanced. The only remaining question is, whether by removing the shutter from its existing location, and by installing it at the opposite end of the verandah, has the respondent disfigured the premises? In our considered view, there is no material on the record of this case, to arrive at such a finding.” 17. Five Judge judgment of the Hon’ble Supreme Court in Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh, (2014) 9 SCC 78 , has held that the revisional power of the High Court cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. It has been further held that where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity. Relevant Para of the judgment is quoted herein below:- “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/ Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 18. In my considered view, keeping in view the fact that the landlord did not produce any evidence on record to substantiate his contention that the alterations carried out by the tenant impaired materially the value and utility of the demised premises, it cannot be said that there was either any perversity or any infirmity in the order passed by learned Rent Controller or the judgment in appeal passed by learned Appellate Court. In the absence of the landlord substantiating his contention that the alterations carried out by the tenant have materially impaired the value and utility of the demised premises, a tenant cannot be evicted. 19. In the absence of the landlord substantiating his contention that the alterations carried out by the tenant have materially impaired the value and utility of the demised premises, a tenant cannot be evicted. 19. In order to make out a case for the eviction of the tenant on the ground of material alterations, the onus is upon the landlord to prove that the alterations carried out have materially impaired the value and utility of the demised premises. 20. This Court is not oblivious to the fact that the value and utility of the demised premises has to be seen from the perspective of the landlord but then the perspective of the landlord has to be substantiated by the landlord by producing same material on record from which it can be inferred that what is contended by the landlord is correct. This can be way of expert evidence. In the present case, as is evident from the order passed by learned Rent Controller as well as the judgment passed by learned Appellate Court, the petitioner has failed to discharge the said onus. Therefore, in view of the decisions of the Hon’ble Supreme Court discussed above, it cannot be said that there is either any infirmity or any perversity in the findings returned either by learned Rent Controller or by learned Appellate Court. Accordingly, as there is no merit in the present revision petition, the same is dismissed. No order as to costs. Interim orders, if any stand vacated. Miscellaneous applications pending, if any, also stand disposed of.