Hari Singh and Sons vs Devinder Nath Sharma

J.V. Gupta, J.—This is tenants''s petition against whom eviction order has been passed by both the authorities below.

2 The landlord Deinder Nath Sharma filed the present ejectment application on 6th October. 1982, inter alia, on the ground that the tenant has materially impaired the value and utility of the demised premises by making material alterations and additions therein. The tenant had constructed a wooden Parchhati by digging big holes on either side of the walls and by fixing wooden beams in the walls which had weakened and damaged the walls. This he has done without the written consent of the landlord. He has also alleged that the walls and floor of the demised premises have also been damaged by the tenant by misusing the same. In the written statement the tenant dented the same and he also denied that the floor and wall of the demised premises had been damaged whatsoever or misused by him as alleged by the landlord. According to him the premises are perfectly in the same condition as it was let out to him in the year 1977.

The landlord also pleaded other grounds but since the ejectment has been ordered on the ground of materially impairing the value and utility, these grounds are not relevant for the purpose of this petition

The learned Rent Controller on issue No. 2 came to the conclusion that the Parchhati has been constructed by the tenant after the creation of the tenancy. He further found the width of the left hand side wall is Parchhati is as big as 10'' � 8.(sic). This wall is reported to be damaged, cracked and bulged out. Under the circumstances, the construction of the Parchhati under the facts and circumstances of the case shall amount to material alteration impairing the value and utility of the demised premises Consequently, the eviction order was passed. In appeal, the learned Appellate Authority affirmed the said finding of the Rent Controller. It was observed that "I am constrained to accept the version put forth by the Petitioner to the effect that the same was constructed after the letting out of the premises in dispute" It was further found that there was material in coming to the conclusion that the cracks have appeared in the walls and they have also bulged out at places on account of the load of the Parchhati.

Learned Counsel for the tenant Petitioner submitted that no date was given by the landlord in his ejectment application as to when the Parchhati was constructed by the tenant and in the absence of any date it could not be held that the same was constructed after the tenancy was created in his favour in the year 1977. He also submitted that by constructing the said Parchhati it could not be held that it has materially impaired the value and utility of the premises. In support of his contention he relied on M/s Moti Ram Banarsi Dass v. Shit Dayal Trust 1984 (2) R.C.R. 421 Govind Ram v. Shrimati Kushalya Ranni and Ors. 1982 (1) R. L. R. 288, Madan Lal and Anr. v. British Motor Car Company (1933) Pvt Ltd. and Anr. 1984 (2) R. L. R. 572, Arvind Nahar Wagh v. Chintaman Ganesh Khire 1985 (1) R. L. R. 549, Devinder Singh v. Shri Bhag Singh 1981 (1) R. L. R. 327, Om Parkash v. Amar Singh 1987 (1) R. C. R. 326 and Om Pal v. Anand Swarup 1988 (2) R. C. R 419.

On the other hand learned Counsel for the landlord-Respondent submitted that on the appreciation of the entire evidence it has been found as a fact that the Parchhati was constructed by the tenant after the tenancy was created and that it has materially impaired the value and utility of the demised premises. That being a finding of fact should not be interfered with in this revision in view of the case Rajbir Kaur and Another Vs. S. Chokesiri and Co., . He also submitted that whether the construction of a Parchhati had materially impaired the value and utility of the demised premises is a question of fact to be determined in each case on the evidence produced therein. Since in the present case the construction of the Parchhati had put extra weight on the walls on account of which the same had cracks and bugled out was sufficient to prove that it has materially impaired the value and utility of the demised premises. I support of his contention he referred to Massa Singh v. Baru Mall Charitable Trust, Dharamsala, Dhuri 1988 Har. R. R. 455.

After hearing the learned Counsel for the parties and going through the case law cited at the Bar I am of the considered view that there is no illegality or impropriety in the concurrent finding arrived at by the two Courts below as to be interfered with in this petition. In the written statement filed by the tenant he never denied specifically that the Parchhati was already constructed before the tenancy was granted. In the absence of any such specific plea it could not be successfully argued on behalf of the Petitioner that since no date was given by the landlord in his ejectment application and, therefore, it could not be held that the Parchhati was constructed by the tenant after the tenancy Moreover, on the appreciation of the entire evidence it has been found as a fact by both the authorities that the Parchhati was constructed by the tenant himself as it did not find any mention either in the sale-deed dated 26th December, 1979 by virtue of which the present landlord purchased the demised premises or in the rent note executed by the tenant earlier in favour of the original owner.

As regards materially impairing the value and utility of the demised premises in the present case, the learned Rent Controller has specifically found that "the Parchhati has been supported by three wooden joints of 6''�3'' fixed in the right and left side wall of the Tabela building by making big holes in the wall. The width of the left hand side wall is 41/2". Parchhati is as big as 10''�8''.3". This wall is reported to be damaged, cracked and bulged out. Under the circumstances the construction of the Parchhati under the facts and circumstances of the case shall amount to material alterations impairing the value and utility of the demised premises. This finding of the Rent Controller was affirmed by the learned Appellate Authority with the observations that "the report of Harbans Singh A.W. 1 there is material in coming to the conclusion that the cracks have appeared in the walls and they have also bulged at places on account of the load of the Parchhati. In the absence of other evidence which would held me to reject this assertion made by the expert witness, it is not possible for me to take a contrary view to the one taken by the Rent Controller. The statement and the report of Shri S. C Vermani which asserts the contrary view is also silent about the other material facts including the width of the wall shown as AC and in site plan Ex. AW5/2." In view of this specific finding in the present case by the two authorities below, the judgments referred to above relied upon the learned Counsel for the Petitioner have no applicability to the facts of the present case. In the Supreme Court judgment in Om Pal''s case (supra), it has been observed in para No. 10 thereof "it would, therefore, follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building." Again in the Supreme Court judgment in Massa Singh''s case (Supra) the finding of the High Court to the effect that the construction of the Parchhati had definitely put weight on the walls thereby diminishing the value and utility of the building in question was maintained and it was held that it definitely comes within the mischief of Section 13 (2) (iii) of the East Punjab Urban Rent Restriction Act. In these cirumstances, I do not find any impropriety or illegality in the impugned order as to be interfered with in this petition.

Consequently, this petition fails and is dismissed with costs.

However, the tenant-Petitioner is allowed three months time to vacate the premises in dispute provided all the arrears of rent, if any, are deposited/paid within one month with an undertaking in writing before the Rent Controller that after the expiry of the said period vacant possession will be handed over to the landlord and rent for this period will be paid in advance by the 10th of every month