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2025 DIGILAW 257 (ALL)

Aziz Ullah v. Musharraf Hussain Deceased

2025-02-07

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar,J. 1. Heard Mr. I.N. Singh, learned counsel appearing for the tenant-petitioner and Mr. R.S. Pandey, learned counsel appearing for landlord-respondents. 2. This petition has been filed under Article 227 of the Constitution invoking superintending/supervisory jurisdiction of this Court questioning the judgment and decree passed by Judge, Small Cause dated 18.12.2018 in S.C.C. Case No. 11 of 1999 whereby the suit for arrears of rent and eviction, both on the ground of default in payment of rent at the end of tenant petitioner as well as for material alteration of the building within the meaning of Section 20 (2) (c) of Act No. 13 of 1972, has been decreed. The said decree came to challenged unsuccessfully in Small Cause revision by the tenant petitioner as the same has also came to be dismissed vide judgment and order dated 18.12.2024. The said judgment is also challenged before this Court in this petition. 3. Mr. I. N. Singh, learned counsel appearing for the petitioner has basically argued on the point of material alteration of the building for which the suit has been decreed. Although he has also tried to assail the order on the point that findings to the effect that petitioner was in arrears of rent was not justified for continued deposit made under Section 30 of Act No. 13 of 1972. 4. In support of his submission as to the first point qua material alteration of the building that according to the trial court diminished the value of the property and thus, entitled the petitioner for a decree of the suit, Mr. Singh argued that constructions were made in the year 1986 of which the landlord respondents were fully aware and it was with his consent why he did not raise any objection for a pretty long time and the suit came to be instituted only in the year 1999. It is further argued by Mr. Singh that extending the shop a little bit by taking the outside Chabutra/platform within the shop and putting iron shutter outside the same as wooden door had completely collapsed, would not amount to material alteration. He submitted that extending the shop to a little bit incorporating within it the Chabutra/platform, would not amount to such alteration as amounting to disfigurement of the shop in question so as to result in diminishing its value. Mr. He submitted that extending the shop to a little bit incorporating within it the Chabutra/platform, would not amount to such alteration as amounting to disfigurement of the shop in question so as to result in diminishing its value. Mr. Singh further submitted that it was always open for the landlord respondents to have remove the shutter and side walls to get the original structure of the shop restored and hence according to him, the findings to the contrary to decree the suit are perverse. 5. Mr. Singh in support of his above submissions has placed reliance upon three authorities of this Court; Hari Singh vs. VIth Additional District Judge, Muzaffar Nagar and others; 2006 (1) ARC 408 . He has placed paragraphs 9 and 10 of the said judgment that run as under:- "9. In Om Prakash v. A. Singh, 1987 SC 617 : 1987 SCFBRC 105, it has been held that material alteration to be a ground for eviction is such alteration which is permanent in nature and not such alteration which may be removed easily without causing any damage to the main/original building. 10. In my opinion construing a wall in the angan which has the effect of dividing the same into two portions cannot be said to be such tructural alteration which is covered by Section 20 (2) (c) of the Act. The point is squarely covered by the Supreme Court authorities of the Om Prakash and Waryam Singh (supra)." 6. Mr. Singh has then relied upon the authority of this Court in the case of Abdul Hamid vs. Xth Additional District Judge, Meerut and others; 2006 (1) ARC 290 . He has placed paragraph-7 of the judgment that runs as under:- "7. Revisional Court also held that construction of latrine in the tenanted building by digging and damaging floor amounts to material alteration and diminishes the value of the property. There was absolutely no allegation that foundation was dug for constructing the walls for constructing the latrine. Event otherwise on the first floor foundation cannot be dug. Even, if it is assumed that by raising temporary walls on the first floor latrine was constructed, it will not amount to material alteration under Section 20 (2) (c) of the Act." 7. Mr. Event otherwise on the first floor foundation cannot be dug. Even, if it is assumed that by raising temporary walls on the first floor latrine was constructed, it will not amount to material alteration under Section 20 (2) (c) of the Act." 7. Mr. Singh has next relied upon the judgment of this Court in the case of Zubeda Khatoon and others vs. VIth Additional District Judge, Lucknow and others; 1999 (1) ARC 74 and has placed paragraph-33 of the judgment that runs as under:- "33. As far as the construction of the Lavatory, Bathroom and Kitchen is concerned, it was never the case of the plaintiff that the constructions raised by the petitioner altered the front show or the structure of the premises. As inspite of such constructions the front and structure of the building may remain unaffected. Hence it can not be said that the constructions were of such a nature that it altered the form, front and structure of the accommodation. Hence it can not be said that the petitioner has made or permitted to be made any such constructions or structure in the building which has diminished its value or utility or disfigured it. Twice the trial Court has given a finding of fact that due to said constructions the value or utility of the building had increased and the same has not been diminished or disfigured, such finding of fact should not have been disturbed by the revisional Court, because the revisional Court did not possess any power to examine the finding of fact arrived by the trial Court, and to decide whether a finding of fact is justified by the evidence on record or not. The revisional Court under Section 25 of the Act does not possess jurisdiction to determine the issues of fat itself, by entering into the evidence and assessing it." 8. Meeting the submissions so advanced by Mr. Singh, Mr. Pandey, learned counsel for the landlord-respondents has contended that father of respondent no. 2 and husband of respondent no. The revisional Court under Section 25 of the Act does not possess jurisdiction to determine the issues of fat itself, by entering into the evidence and assessing it." 8. Meeting the submissions so advanced by Mr. Singh, Mr. Pandey, learned counsel for the landlord-respondents has contended that father of respondent no. 2 and husband of respondent no. 1 late Musarraf Hussain, had executed a will in favour of the respondents qua the property in question prior to his death on 10.06.1981 and ever since the death of testator respondents became owner in possession of the property, however, since the tenant-petitioner was continuing in tenancy from the days of late Mussaraf, he was made to continue but no permission was granted to alter or carry out any modification of the structure of the shop in question. It is submitted that respondents-landlord were residing outside at Budaun and taking advantage thereof, petitioner carried out construction to the extent that he absolutely removed the platform/Chabutra outside the shop by taking it into the shop and extending its area by putting a shutter outside and raising walls and keeping roof upon the same. It is submitted that it was only in the year 1999 when the landlord came back that he came to know about this disfigurement of the shop. It is also contended that petitioner had not been paying rent and hence was in arrears of rent and so issued notice to him and then instituted a suit on both counts; for default in payment of rent and material alteration secondly disfigurement of the shop in question, the demised premisses. It is argued by Mr. Pandey that in the plaint itself a plea was taken to the effect that the petitioner got covered the Chabutra/platform outside the shop and disfigured the shop and diminished its value in the absence of the landlord which amounted to no consent and yet no specific denial had been made to this effect in the additional pleas taken in the written statement except a bald and evasive denial vide paragrap-1 that the contents of paragraph-8 were not admitted. Mr. Mr. Pandey further contends that during the testimony, the defendant petitioner did not take the plea that no such permission was taken from the landlord rather he took the plea that he had taken the permission from the original landlord 6-7 years prior to his death, who admittedly died in the year 1981 and, therefore, this was a complete misstatement of fact inasmuch as no evidence was led by the tenant petitioner in support of such additional plea. 9. Having heard the submissions of learned counsel for the respective parties and having perused the record. Insofar as the point of default in payment of rent is concerned, I find that explanation for deposit that was claimed to be made by the petitioner under Section 30 of Act No. 13 of 1972 only and no defence was ever set up as to any deposit made under Section 20 (4) of Act No. 13 of 1972 so as to entitle the Court exercise discretion to dismiss the suit. The Court has held and recorded very convincing finding that the petitioner has been in arrears of rent and, therefore did not give any statutory benefit to the petitioner under Section 20 (2). 10. Insofar as the main point that has been argued before me regarding alteration of the shop which amounted to its disfigurement resulting in diminishing the value of it, it has been argued that it has been done with the permission of erstwhile owner of the property and secondly it did not amount to such material alteration as may be taken and amounting to diminishing the value of the demised premisses. In the case of Vipin Kumar vs. Roshan Lal Anand and others; (1993) 2 SCC 614 , the Supreme Court relying upon an earlier judgment in the case of Om Praksh vs. Amar Singh; (1987) 1 SCC 458 has held that impairment of the value or utility of the building is to be seen from the point of view of the landlord and not the tenant. In that case, the Court had held that the act of the tenant must be such that erection of the wall had materially impaired the value or utility of the demised premises. In that case, the Court had held that the act of the tenant must be such that erection of the wall had materially impaired the value or utility of the demised premises. This judgment has further been followed by Co-ordinate Bench of this Court in the case of Umesh Kumar vs. Arun Kumar and others; 2012 SCC Online All 3987; (2013) 96 ALR 709 and vide paragraph-13 has held thus:- "13. The word "value" means intrinsic worth of a thing. In other words, utility of an object satisfying, directly or indirectly, the needs or desires of a person. It can thus be said that to attract Section 20(2)(c) it has to be established that the tenant has committed such acts of construction or structural alteration as are likely to diminish the quality, strength or value of building or rented land to such an extent that intrinsic worth or fitness of the building or rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of landlord and not of tenant or any one else. This aspect has also been reiterated by Apex Court in Gurbachan Singh (supra) in para 12 of the judgement. In Gurbachan Singh (supra) also the tenant had removed full size door of one shop and merged the shop into open part of verandah. All these activities were held to be a constructional alteration impairing material value and utility of building. The Court observed: "14. . . . . . then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. . . . . . . . . . . then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. . . . . . . In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its Fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act." 11. The utility of the structure of the demised premisses, which is rented out to the tenant has to be always seen from the point of landlord to appreciate whether the structure has been so altered has diminished its value and rather makes the landlord in vulnerable position so as to not could get rent in the event it is let out it would amount to diminishing its value for such alteration and if alteration results in diminishing the commercial value of structure then it would definitely amount to disfigurement. Insofar as the authority that has been cited before me in the matter of Hari Singh (Supra) is concerned and the relevant paragraph that has been reproduced hereinabove, I find that the court relied upon an authority of Supreme Court in the case of Om Prakash where the issue of whether the structure has been permanently altered or it is a temporary one, in my considered view, this is not an issue in hand, it is a case where a wall has been constructed taking outside chabutra inside it by putting shutter outside amounted to permanent change in the structure and therefore, the observation made in paragraphs 9 of the said judgement would not attract and since paragraph 9 would not attract, therefore, paragraph 10 would equally not attracted in the present case. 12. 12. Insofar as in the case of Abdul Hamid (Supra) in paragraph 7 as quoted above, I find that this was relating to some structural change by making the allegation that digging took place to construct a toilet, the Court has held that on the first floor of the house there can be no digging and construction of toilet is a utility service either provided or obtained and it would not amount to such structural change as would result in damaging construction or diminishing its value. The judgement therefore is distinguishable on facts. 13. Insofar as the judgement in the case of Zubeda Khatoon (Supra) as cited above an reliance has been placed on paragraph 33 quoted herein above, the Court again held that construction of lavatory, bathroom and kitchen are not such constructions which can be said to have altered the front show of the structure of the premises. The court was considering as to whether raising such constructions had in fact damaged the front show of the premises. It is in these circumstances, the Court held that such structure cannot be said to be material alteration which would said to have diminished the value. The Court has further considered whether the revisional court in exercise of power under Section 25 of the Act can reverse the finding of the trial court to determine the issue itself or not, in my considered view both the point would not attract in the present case as it is a case where constructions can be said to have been carried out by enhancing the wall of the premisses. Obviously construction of a lavatory or kitchen would not enhance the utility of structure, unless and until it damages the outside show it cannot be amounted to material alteration so as to decree the suit. In these circumstances, therefore, the observations made in the case are of no help to the petitioner. 14. Besides the above, I find merit in the argument of learned counsel for the respondent that on the question of permission for making such alteration or modification of the structure there is no plea as such taken in the entire written statement. In these circumstances, therefore, the observations made in the case are of no help to the petitioner. 14. Besides the above, I find merit in the argument of learned counsel for the respondent that on the question of permission for making such alteration or modification of the structure there is no plea as such taken in the entire written statement. Further in the testimony that was recorded of the tenant petitioner it has been categorically come that he had taken permission from the erstwhile owner of the property 6-7 years prior to his death, in my considered view when the tenant petitioner was fully aware about the death of the original owner had taken place in the year 1981 and there is no denial to that effect in the entire pleadings, permission was required to be obtain from the subsequent owner of the property which is quite missing in the present case. 15. In such above view of the matter, I do not find any perversity in the finding returned by the Courts below under the judgment impugned in this petition. The petition lacks merit and is accordingly, dismissed.