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2019 DIGILAW 141 (UTT)

Bhagwati Charan Agarwal v. Pramod Kumar Agarwal

2019-02-27

MANOJ K.TIWARI

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JUDGMENT : Manoj K. Tiwari, J. This is landlord’s petition against the judgment dated 21.05.2012 rendered by learned Additional District Judge, Kotdwar, District Pauri Garhwal in S.C.C. Revision No. 01 of 2011, whereby eviction decree passed against the respondents by the learned Judge, Small Cause Court has been set aside. 2. Facts of the case, in brief, are as follows : Petitioner, who is landlord of a building situate in Dugadda, District Pauri Garhwal, filed an eviction suit against the respondents with the averment that (a) tenant/respondent no.1 has defaulted in payment of rent; (b) respondent no. 1 made structural alteration in the building without permission of the petitioner/landlord, which has diminished the value of the building; and (c) respondent no. 1 has sublet a portion of the premises in question to his brother (respondent no.2). The plea of structural alteration was taken by the petitioner in paragraph no. 5 of his plaint, which is extracted below : “5. That the defendant no. 1 has illegally made material alteration in the premises in question inasmuch as defendant no. 1 has completely changed the shape of tenanted premises by raising new construction in it and by constructing new latrine and bath room. Apart from this, the defendant no. 1 has closed the existing Verandah of the premises in question at the roadside towards north of the premises and has fitted a new door in the newly constructed northern wall of the Verandah through which defendant no. 1 has closed the Verandah. Apart from this, the western wall of the middle room has also been dis-mantled by the defendant no. 1 and instead of it, a very thin new wall has been constructed by the defendant no. 1 and in that wall too, a new door has been affixed. This way, defendant no. 1 has made material alteration in the premises in question without permission of the plaintiff which has diminished the value and utility of the building and this construction is detriment to the building which has caused a great prejudice to the plaintiff and by making this material alteration, the defendant no. 1 has diminished the value and utility of the premises in question and on this ground as well, the defendant no. 1 is liable to be evicted from the premises in question.” 3. 1 has diminished the value and utility of the premises in question and on this ground as well, the defendant no. 1 is liable to be evicted from the premises in question.” 3. Upon service of notice, respondents entered appearance before the learned trial Court and deposited the entire rent, including arrears, in terms of Section 20 (4) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act No. 13 of 1972”). The tenants (respondents herein) jointly filed their written statement, in which they denied all the plaint allegations and contended that they have not made any structural alteration in the premises in question. It was further contended by them that the plea of subletting raised by the landlord is false, their father, namely, Mr. Shrikrishan Agarwal was the original tenant and after his death his two sons (respondents herein) inherited the tenancy. 4. Both the parties lead their evidence and, after considering the entire material on record, learned trial Court/Judge, Small Cause Court/Civil Judge (Senior Division), Kotdwar decreed the suit vide judgment & order dated 19.01.2011, by holding that the tenant has made structural alteration in the premises in question, without permission/consent of the landlord which has diminished the value of the building. It was further held that respondent No. 1 has inducted respondent No. 2 as sub-tenant in the premises in question. 5. A perusal of the judgment rendered by learned trial Court reveals that the question of structural alteration by the tenant in the premises in question has been dealt with in great detail from paragraph nos. 36 to 50 of the said judgment. Finding of the learned trial Court is based on the evidence on record, including report submitted by the Advocate Commissioner as well as the Patwari, which reflected construction of a new toilet, brick walls and concrete Almirah. Learned trial Court has considered and discussed the deposition made by the landlord during cross-examination, where he has reiterated that the tenant has constructed a latrine after laying foundation and further that, due to construction of latrine, there is seepage in the building, which has posed threat to the building. Learned trial Court has considered and discussed the deposition made by the landlord during cross-examination, where he has reiterated that the tenant has constructed a latrine after laying foundation and further that, due to construction of latrine, there is seepage in the building, which has posed threat to the building. Learned trial Court had also considered that originally the building consisted of two sets of two rooms each; but, the report submitted by the Advocate Commissioner reveals that there was addition of one room in both the sets, which increased the number of rooms from 2 to 3 in both sets. 6. Learned trial Court has considered various judgments for arriving at the conclusion that the structural change made by the tenant has diminished the value of the building. The Revisional Court, however, has reversed the judgment rendered by the learned trial Court and has substituted finding of the learned trial Court on this issue i.e. structural alteration. Perusal of the judgment rendered by the learned Revisional Court reveals that it developed altogether a new case, which was not pleaded by the tenant/defendants that the tenant had merely changed the seat of the latrine from Indian style to Western style, for arriving at the conclusion that there was no structural alteration in the premises in question. Learned Revisional Court has further held that, by changing the seat of latrine from Indian style to Western style, there has been no diminution in the value of the building and, in fact, it has enhanced its value. 7. It is settled position in law that the Revisional Court, in exercise of powers under Section 25 of the Provincial Small Cause Courts Act, can interfere with the pure finding of fact given by the trial Court only when (a) findings are perverse or (b) based on no material or (c) findings have been arrived at upon taking into consideration the inadmissible evidence or (d) findings have been arrived at without consideration of relevant evidence, as held by Hon’ble Supreme Court in the matter of Mundri Lal Vs. Sushila Rani, reported in (2007) 8 SCC 609 . The said view was reiterated by Hon’ble Supreme Court in the recent decision rendered in the matter of Trilok Singh Chauhan Vs. Ram Lal, reported in (2018) 2 SCC 566 . 8. There is yet another aspect to the matter. Sushila Rani, reported in (2007) 8 SCC 609 . The said view was reiterated by Hon’ble Supreme Court in the recent decision rendered in the matter of Trilok Singh Chauhan Vs. Ram Lal, reported in (2018) 2 SCC 566 . 8. There is yet another aspect to the matter. Hon’ble Supreme Court in the matter of Vipin Kumar Vs. Roshan Lal Anand and others, reported in (1993) 2 SCC 614 , has held that impairment of value or utility of building is to be seen from the point of view of landlord and not that of tenant. As per the case set up by the landlord, structural alteration made by the tenant has diminished the value of the building. In his cross-examination, landlord has stated that construction of a new latrine in the ground floor has posed grave threat to the entire building. 9. Learned counsel appearing for the respondents submits that there is no finding recorded by the learned trial Court that structural alteration made by respondent has diminished the value of the building. He further submits that learned Revisional Court was justified in filling this lacuna by interfering with the judgment passed by the learned trial Court. He relies upon a judgment rendered by Hon’ble Supreme Court in the matter of Pratap Narain Vs. District Judge, Azamgarh, reported in 1995 Supp. 3 SCC 459, in which Hon’ble Supreme Court has held that a suit for eviction filed under Section 20 of Act No. 13 of 1972 cannot be decreed unless it is found that the structural change made by the tenant has resulted in diminishing the value of the building. 10. Learned counsel for the petitioner, in reply, submits that learned trial Court has recorded categorical finding in paragraph no. 50 of the judgment that the structural alteration made by the tenant has reduced the life of the building and has disfigured the building and further that such structural alteration was made by the tenant without consent of the landlord. I find substance in the submission made on behalf of the petitioner. 11. Be that as it may, the fact remains that the learned Additional District Judge has transgressed his revisionary jurisdiction by substituting his finding in place of the finding recorded by the learned trial Court and also by developing third case, which was not pleaded by the tenant. I find substance in the submission made on behalf of the petitioner. 11. Be that as it may, the fact remains that the learned Additional District Judge has transgressed his revisionary jurisdiction by substituting his finding in place of the finding recorded by the learned trial Court and also by developing third case, which was not pleaded by the tenant. Learned Revisional Court could have disturbed a finding of fact on limited grounds enumerated in the case of Mundri Lal Vs. Sushila Rani (Supra). Therefore, the writ petition deserves to be allowed. 12. Consequently, the writ petition is allowed. Impugned order dated 21.05.2012 passed by learned Additional District Judge, Kotdwar, District Pauri Garhwal in SCC Revision No. 1 of 2011 is set aside. 13. There will be no order as to costs.