Bhavani Prasad alias Ojha vs IInd A.D.J. and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is tenant''s writ petition. Original landlady Smt Urmila Gupta since deceased and survived by respondent Nos. 3 to 9 Onkar Nath and Ors. instituted S.C.C Suit No. 106 of 1992 against tenant petitioner for his eviction on the ground of default and material alteration and for recovery of arrears of rent . Rate of rent is Rs. 5/- per month.

According to the plaint allegation defendant was tenant of one room, however, he constructed an additional room.

Additional J.S.C.C. Allahabad decreed the suit for eviction on the ground of material alteration through judgment and decree dated 21.02.1995. Against the said judgment and decree, revision No. 720 of 1997 was filed by the petitioner which was dismissed by A.D.J. IInd Allahabad through judgment and order dated 27.07.1999 hence this writ petition.

Question of default does not survive as on the first date of hearing tenant deposited the entire arrears of rent alongwith interest and cost of the suit.

The only point to be decided is as to whether construction of an additional pucca room amounts to material alteration/structural change as mentioned u/s 20(2)(b) & (c) of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. The said sub Sections are quoted below:

2(b) that the tenant has wifully caused or permited to be caused sbstantial damage to the building.

2(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it.

In respect of construction of additional room notices were issued by Estate Officer Cantt Allahabad. Copies of notice were filed before the Trial Court. The said copies have also been filed alongwith supplementary affidavit. The first notice is dated 16.05.1988. In the said notice it was mentioned that several tenants of the Bungalow in question bearing No. 5 Lock Hart road Cantt. Allahabad including petitioner Bhavani Prasad had constructed one room, each of 108 sq.feet area. In respect of adjoining portion also similar proceedings were initiated and eviction decree was passed which was confirmed in writ petition No. 63560 of 2006 dismissed on 22.11.2006. SLP filed against the said judgment was also dismissed.

There cannot be any doubt that making of an additional room does amount to material alteration. In this regard reference may be made to the following authorities:

Gurbachan Singh and another Vs. Shivalak Rubber Industries and others,

1983(1) A.R.C. 145, Shabir Ahmad v. I Additional District and Sessions Judge, Saharanpur and Ors. In this case tenant had constructed two rooms and it was held that this amounted to material alteration.

1988(2) A.R.C. 243, Sohan Lal v. Ram Prakash. In this case tenant had put up a Chappar and then replaced it with tin shade fixed on pucca pillars and tenant had also raised Chabutra/platform and made it permanent. Supreme Court held that it amounted to material alteration.

1993(1) A.R.C. 493, Smt. Swarn Devi and Ors. v. Meeakshi Gautam alias Chandrawati Devi and Ors. In this case after raising walls over Chabutra tin roof was put there upon by the tenant and it was, therefore, held that it amounted to material alteration.

1987(2) A.R.C. 411, Mool Narain Mehrotra v. Smt. Gulab Devi and Ors. in this case tenant had constructed.

Accordingly, I do not find any error in the impugned judgments passed by the courts below. Writ petition is dismissed.

Tenant-petitioner is granted six months time to vacate provided that:

Within one month from today tenant files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlady-respondent.

For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs. 3,000/- (at the rate of Rs. 500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlady-respondent.

Within one month from today tenant shall deposit entire decreetal amount due till date before J.S.C.C. for immediate payment to landlords respondents.

In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month and tenant-petitioner shall be liable to pay damages at the rate of Rs. 1000/- per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing decreetal amount and Rs. 3000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 1000/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application.