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2024 DIGILAW 461 (UTT)

Raghav Pandey v. Suresh Chandra

2024-07-05

VIVEK BHARTI SHARMA

body2024
JUDGMENT : Vivek Bharti Sharma, J. Present petition under Article 227 of the Constitution of India has been filed by the petitioner against the judgment and order dated 30.01.2023 passed by 2nd Additional District Judge, Haldwani in S.C.C. Revision No. 04 of 2019, whereby the said court dismissed the revision and affirmed the judgment and order dated 30.01.2019 passed by Civil Judge (Senior Division), Haldwani in S.C.C. Suit No. 11 of 2015. 2. Heard. 3. Admit the petition. 4. Learned counsel for the petitioners/tenants would submit that the respondent/landlord filed Suit No.11 of 2015 against the petitioners/tenants for ejectment on the grounds of non-payment of rent and also making material structural alterations in the tenanted property without taking permission in writing from the respondent/landlord; that, the Small Causes Court, Haldwani vide judgment and order dated 30.01.2019 (annexed as Annexure No.1 to the writ petition) observed that the petitioners/tenants have deposited the entire rental amount before the trial court, however, gave the benefit of Section 20(2)(c) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short ‘the Act No. 13 of 1972’) and decreed the suit in favour of the respondent/landlord on the ground that material alteration was done by the petitioners/tenants in the tenanted property without taking permission from the respondent/landlord and thereby diminishing its value. 5. He would further submit that aggrieved by judgment and order dated 30.01.2019, the petitioners/tenants preferred S.C.C. Revision No.04 of 2019 before the court of 2nd Additional District Judge, Haldwani, District Nainital; that, the Revisional Court vide judgment and order dated 30.01.2023 (annexed as Part-II of Annexure No.1 to the writ petition) dismissed the said revision and affirmed the judgment and order dated 30.01.2019 passed by the Small Causes Court. Hence, this writ petition. 6. Hence, this writ petition. 6. Learned counsel for the petitioners/tenants would submit that both the impugned judgments passed by the courts below are unsustainable in the eyes of law as the petitioners/tenants have already deposited the entire rental amount before the trial court and have not made any permanent partition in the tenanted property and have only made temporary partition by a wooden ply; that, the respondent/landlord did not plead or give any evidence regarding the measurement of shop in dispute or the alleged partition; that, the alleged partition was not examined by any Expert, Architect or Engineer to prove the allegations made in the plaint by the respondent/landlord; that, the respondent/landlord did not examine any witness of the locality, where the shop in question was situated, to prove the case of material alteration; that, the testimony given by the respondent/landlord is not supported by any evidence; that, the burden of proving the case under Section 20(2)(c) of the Act No. 13 of 1972 was upon the respondent/landlord and respondent/landlord miserably failed to prove its case; that, the trial court has not framed proper issue in terms of Section 20(2)(c) of the Act No. 13 of 1972 while dealing with the subject matter of material alteration. 7. In support of his case, he referred the judgment of Vishwanath Prasad Jaiswal Vs. Satya Narain Sharma (2014) 16 SCC 784 , whereby Hon’ble Supreme Court dismissed the appeal filed by the landlord on the ground of non-availability of evidence on record to prove that the material alteration made in the tenanted premises by the tenant diminished the value and utility of the tenanted property and held that the landlord is not entitled to any benefit of Section 20(2)(c) of the Act No. 13 of 1972 under such circumstances. He also places reliance upon various judgments on the same point of law. 8. He also places reliance upon various judgments on the same point of law. 8. Counsel for the petitioners/tenants would further submit that in the written statement (annexed as Annexure No.3 to the writ petition) filed by the petitioners /tenants, it was specifically denied that any material alteration which diminished the value and utility of the tenanted premises was done by them rather it was stated that initially the shop was taken on rent by the father of the petitioners/tenants from the father of respondent/landlord in the year 1964 and at the relevant time the shop was temporarily partitioned by wooden ply and no permanent partition was constructed by the petitioners/tenants; that, with regard to the question of removing the rear wall, the same was removed by the brother of the respondent/landlord himself, when the shop situated in the back side of the tenanted property was taken on rent by the wife of petitioner no.1 from the wife of the respondent/landlord. 9. Counsel for the petitioners/tenants would further submit that in the present case even the ground for ejectment under Section 20(2)(c) of the Act No. 13 of 1972 is not available to the respondent/landlord since the tenanted property has been brought in its original shape; that, the trial court also did not appreciate the evidence of DW-2/Kanhaiya Lal, who categorically deposed that the rear wall of the shop was removed by the brother of the respondent/landlord in the year 1993. 10. Per contra, learned counsel for the respondent/landlord vehemently opposed the submissions made by counsel for the petitioners/tenants and supported the impugned judgment and order of both the courts by submitting that it was the specific case of the respondent/landlord that the petitioners/tenants have partitioned the original shop, which was let out by the father of the respondent/landlord to the father of the petitioners/tenants and when wife of petitioner no.1 took the shop situated at backside of tenanted property on rent from the wife of the respondent/landlord then the petitioners/tenants removed the common wall of the original tenanted property, which is subject matter of the present petition. 11. 11. Counsel for the respondent/landlord would further submit that Section 20(2)(c) of the Act No.13 of 1972 specifically says that whenever any material alteration has to be made in the tenanted premises there should be consent in writing from the landlord and the petitioners/tenants have failed to prove that whether any written permission was taken by them from the respondent/landlord for doing any material alteration in the tenanted property. He would further submit that in the impugned judgment and order dated 30.01.2019 (annexed as Annexure No.1 to the writ petition) passed by the Small Cause Court, it has been stated that petitioner no.2/defendant no.2 when examined himself as witness in the Small Cause Court as DW1 had specifically admitted the fact that in the rent agreement, which was executed on 26.10.1964 between the father of the petitioners/tenants and father of the respondents/landlord (exhibit as Paper No.25Ga/2), it was stated by the father of the petitioners/tenants that ‘he admits that he would not open any door on the backside of the shop and would not make any change in the tenanted premises without prior permission of the landlord’ but the material alteration has been done by the petitioners/tenants without taking written permission from the respondent/landlord, therefore, the terms of the rent agreement was violated by them. 12. Counsel for the respondent/landlord would further submit that the trial court specifically observed in the impugned judgment and order dated 31.01.2019 that as per the statement of DW1/Lalit Mohan Pande (petitioner no.2) it is proved that three walls were present in the shop when the shop in question was given on rent to the petitioners/tenants but at present there are only two walls in the said shop and also observed that in his cross-examination, the petitioners/tenants stated that he was not aware whether the petitioners/tenants has taken any written permission from the landlord/respondent for material alteration. He would further submit that in the trial court the petitioners/tenants had the opportunity to prove the fact that they had taken the permission from the landlord/respondent in terms of the executed rent agreement but they did not do so. 13. He would further submit that in the trial court the petitioners/tenants had the opportunity to prove the fact that they had taken the permission from the landlord/respondent in terms of the executed rent agreement but they did not do so. 13. Learned counsel for the respondent/landlord would further submit that in the plaint as well as in the evidence filed by way of affidavit by the respondent/landlord as PW1/Suresh Chandra (respondent/landlord) it has come that material changes have been made which had diminished the value of the tenanted premises; that, opportunity was afforded to the petitioners/tenants to cross-examine PW1/Suresh Chandra on the point that how this alteration has diminished the value of the tenanted premises but the petitioners/tenants neither cross examine PW1/Suresh Chandra on this point nor made any suggestion to PW1/Suresh Chandra and did not adduce any evidence to prove that the removal of common wall between the present tenanted premises and the rear shop had not diminished the value of the property. 14. Learned counsel for the respondent/landlord would further submit that the statement of the counsel for the petitioners/tenants is incorrect that the trial court did not frame any issue on the fact that material alteration did not diminish the value of the tenanted premises as issue no.3 was framed on this point; that, the court in paragraph no.26 of its judgment (at page 33 of the writ petition) has made the categorical, specific and clear finding that this material change in the infrastructure of the tenanted premises has diminished the value and utility of the tenanted premises, therefore, this argument of the petitioners/ tenants is also without force. 15. Perused the record in light of arguments of learned counsel for the parties. 16. It is evident that the trial court had specifically stated in paragraph no. 15. Perused the record in light of arguments of learned counsel for the parties. 16. It is evident that the trial court had specifically stated in paragraph no. 26 of the judgment that petitioners/tenants have materially altered the tenanted premises in question without taking any written permission and the same has diminished the value and utility of the tenanted premises and when the opportunity was given to the petitioners/tenants to cross examine the witness, they failed to do so and neither the petitioners/tenants controverted the same in their own evidence nor gave any suggestions to PW1/respondent/landlord that the material alteration in the tenanted premises did not diminish its value and utility; that, in the absence of any cross-examination on this point it shall be presumed that it is a fact admitted by the petitioners/tenants. Therefore, the submission made by the counsel for the petitioners/tenants that there is no evidence of any expert on the fact that the material alteration made in the tenanted property diminished the value and utility of the property in question, is considered, it will still not be fatal to the case of the respondent/landlord. 17. It is trite that when there is no cross examination on any fact stated on oath by any witness to controvert the same by way of any suggestions or otherwise in the cross examination of that witness by opposite party then that fact shall be presumed to be an admitted fact as against the opposite party. Moreover, perusal of the judgment of the Small Causes Court dated 31.01.2019 reveals that in paragraph no. 26 of the said judgment, the trial court has specifically stated that material alteration made by the petitioners/tenants has diminished the value and utility of the tenanted premises, therefore, there is no force in the arguments of the counsel for the petitioners/tenants that there is no findings to this effect in the judgment. Furthermore, the judgment passed by Hon’ble Supreme Court in Vishwanath Prasad Jaiswal (Supra) is of no help to the petitioner on this point. Last but not least, in para-3 of written statement, it is stated that the back wall of the tenanted property, which was common between these tenanted shops was removed in the year 1993 and there is no evidence in respect of the fact that for such material alteration, the petitioners/tenants had taken any written permission from the respondent/landlord. 18. Last but not least, in para-3 of written statement, it is stated that the back wall of the tenanted property, which was common between these tenanted shops was removed in the year 1993 and there is no evidence in respect of the fact that for such material alteration, the petitioners/tenants had taken any written permission from the respondent/landlord. 18. It is trite that the High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate or reweigh the evidence or facts upon which the determination under challenge is based. The power under Article 227 should be exercised sparingly in appropriate cases, like when there is no evidence at all or the finding is perverse but in the present case both the courts have passed a reasoned and speaking order while appreciating the facts and evidences on record. In the judgment Garment Craft Vs. Prakash Chand Goel (2022) 4 SCC 181 , the Hon’ble Apex has observed that the High Court is not vested with unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals and further observed that it is well settled that the High Court while exercising its power under Article 227 of the Constitution of India cannot act as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. 19. In the light of above discussion, this Court is of the considered view that the impugned order passed by both the courts below cannot be said to be illegal or perverse which requires interference under its supervisory jurisdiction by this Court. 20. In result, the writ petition fails and the same is hereby dismissed.