Harish Chand vs Udai Bhan and Others

J.V. Gupta, J.—This is tenant''s petition against whom ejectment application was dismissed by the Rent Controller but an order of eviction has been passed in appeal.

The landlord sought ejectment of his tenant from the premises in dispute, which consist of a shop situated in Hodal. Ejectment was sought inter alia on the ground that the tenant has materially impaired the value and utility of building. The necessary allegations in this respect were made in Para 4 (Kh), which is in the following terms:

The Respondent has converted two bay shop into a single bay by removing the intervening wall together with frame and door fixed therein. He had also replaced the roof of the northern bay and had also replaced the floor of the roof of the inner bay. The Respondent had thus caused material alterations in the premises. This had caused material impairment of value and utility of the building.

In the written statement filed on behalf of the tenant the allegations made in the ejectment application were denied. In reply to the above said para it was stated that it was wrong that the tenant has converted the shop into one ''Khan'' by removing the wall and the door therein, or he has changed the floor of the roof. It was stated that the tenant had not made any change or alteration whatsoever and, therefore, the question of impairing its value and utility did not arise.

After considering the evidence led by the parties and also on the basis of the result of the inspection made by the learned Rent Controller on 30th October, 1980, at the request of the parties, he came to the conclusion that the landlord has failed to establish that any wall partitioning the two shops was removed by the tenant as alleged. Therefore, the question of impairing any value or utility does not arise. As a result of these findings the ejectment application was dismissed.

In appeal the learned Appellate Authority after discussing the entire evidence reversed the said finding of the Rent Controller and gave his finding in the following terms:

From the evidence discussed above it is established that previously the demised shop comprised two-bays with a dividing wall. A door with shutters existed in that wall. That wall has been demolished long after the inception of the tenancy inferentially by the tenant and instead a beam has been placed on two pillars to support the roof instead of the wall which existed previously. It also stands established that the tenant has replaced roof of the northern bay by another roof These amount to substantial alterations and in view of the authorities relied upon on behalf of the landlord they have resulted in material impairment of value and utility of the premises.

As a result of these findings the eviction order was passed against the tenant. Dissatisfied with the same the tenant has filed this petition in this Court.

Learned Counsel for the Petitioner vehemently contended that the finding of the Rent Controller has been reversed arbitrarily on surmises and conjectures without discussing the entire evidence on the record. Learned Counsel further contended that in the ejectment application no date or period was mentioned as to when the alleged wall was removed by the tenant, which impaired the value or utility of the demised premises. Moreover, there was no occasion to remove the alleged wall because the tenant was not going to gain anything in that way. Moreover, according to the Learned Counsel, the inspection was made by the learned Rent Controller at the instance of the landlord himself and his inspection note dated 30th October, 1980 was not properly appreciated by the Appellate Authority. Thus, argued the learned, counsel the findings arrived at by the Appellate Authority are vitiated and are liable to be set aside in this revision petition.

On the other hand Learned Counsel for the landlord-respondent submitted that the Appellate Authority had given a firm finding that the demised-shop comprised of two-bays with a dividing wall, which was demolished by the tenant and instead a beam has been placed on two pillars to support the roof instead of the wall, which existed previously. According to the Learned Counsel this being a finding of fact cannot be interfered with in revisional jurisdiction.

I have heard Learned Counsel for the parties and have also gone through the relevant evidence on the record. From the evidence both the views are possible, the one taken by the Rent Controller and the one taken by the Appellate Authority. The Rent Controller mainly relied upon his inspection note, whereas the learned Appellate Authority after discussing the same has observed:

All that follows from that inspection note is that pillars in question have not been constructed of big bricks. The decision of the question does not turn on the fact whether the pillars are made of big bricks or small ones.

Apart from that he has relied upon the statement of Ram Billas, retired Chief Engineer, P.W. 4, and his report Exhibit 4/1, who inspected the premises on 24th February, 1978. Thus after going through the evidence it cannot be said that the finding given by the Appellate Authority was illegal or improper as to be interfered with in revisional jurisdiction. From the very beginning the plea of the landlord has been that the shop consisted of two Khans and there was a partitioning wall with a door therein and that the said door and the wall was removed by the tenant and in its place some beam was put by the tenant. of course the tenant denied the said plea of the landlord. According to the tenant there was no partitioning wall at any time. The learned Appellate Authority relied upon three rent-notes, Exhibits PA, PC and PD dated 21st June, 1946, 21st July, 1947 and 4th October, 1947, respectively, wherein it was mentioned that the demised premises consisted of two Khans. Thus I do not find any infirmity or illegality in the conclusions arrived at by the Appellate Authority on the facts proved on the record.

It is the common case of the parties that the shop is old one, even the present tenant is there since July, 1947. Thus the impairing of value and utility of the building is to be seen in the totality of the circumstances. As a matter of fact it could not be seriously challenged that once it is found that there existed a partitioning wall with a door therein and the same was removed by the tenant, then the utility and the value of the building was not materially impaired. Again it will be a question of fact, which has to be determined on the basis of evidence on record.

In this view of the matter the petition fails and is dismissed with costs. However, the tenant-petitioner is allowed three months'' time to vacate the premises, provided all the arrears of rent, if any, and the advance rent of three months is deposited with the Rent Controller, within three weeks.