Kali Dass Vasudeva vs Swaran Singh

V.P. Gupta, J.—Both these civil revision petitions arise out of a single eviction application filed by Swaran Singh landlord against Kali Dass tenant with respect to shop No. 20, situate in Chhota Simla, and as such I am disposing of both these revision petitions by this order.

In civil revision petition No. 51 of 1979, Kali Dass Petitioner-tenant has challenged the order, dated 13th March, 1979, passed by District Judge, Simla, exercising the powers of Appellate Authority under Himachal Pradesh Urban Rent Control Act, 1971, by which the appeal of Swaran Singh Respondent-landlord was accepted and the order of eviction of the Petitioner Kali Dass from the shop in dispute was passed.

In civil revision petition No. 37 of 1979 Kali Dass tenant has challenged the order of Rent Controller (III) Simla, dated 21-3-1979, by which his objections u/s 47 CPC have been dismissed and it has been held that the tender of the amount by Kali Dass tenant after the passing of the order of eviction by the Rent Controller on 30-9-1977 on the ground of non-payment of rent is short by Rs. 4.97 paise.

The brief facts of the case are that the Respondent filed an application u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter referred to as the Act) for the eviction of the Petitioner from Shop No. 20, situate in Chhota Simla. The grounds for eviction of the Petitioner as mentioned in para No. 18 of the application were that the Petitioner had carried out unauthorised additions and alterations in the disputed shop and has committed such acts which have impaired materially the value and utility of the disputed shop. It as further alleged that the Petitioner has broken the entire roof and ceiling and has removed the pucca iron sheets of the ceiling and has replaced the same by temporary plywood and that the supporting Karis of the roof of the shop had also been removed and that the Petitioner has also broken the walls of the shop for fixing shelves etc. Another ground for eviction was the non-payment of rent and it was alleged that the rent and the taxes have not been paid from 1-9-1975 onwards. This application for eviction was filed on 3rd August, 1976, and the rent claimed was upto 31st July, 1976, at the rate of Rs. 75/- per month.

The Petitioner-tenant contested this petition and pleaded that he has not in any way committed any acts which have impaired materially the value and the utility of the shop in dispute. Similarly the Petitioner also contested the claim of the rent and alleged that the rent of July, 1976, was not payable upto 3rd August, 1976, when this application was filed. It was also alleged that upto June, 1976, therenthad been received by the Respondent from the Petitioner but no receipt was issued.

From the pleadings of the parties the following issues were framed:

Whether the Respondent is a contractual tenant? If so, whether a notice for terminating the tenancy of the Respondent was required to be served on him before filing of the present petition? O.P.R.

If issue No. 1 is proved in favour of the Respondent whether a legal and valid notice was served on the Respondent, before filing of the present petition? O.P.P.

Whether the present petition is premature? O.P.R.

Whether the petition is mala fide as alleged in the reply? O.P.R.

Whether the Respondent is in arrears of rent as alleged? If so, to what extent? O.P.P.

Whether the Respondent has committed such acts which have impaired the value and utility of the building as alleged? O.P.P.

Relief.

The Rent Controller vide his order dated 30th September, 1977, ordered the eviction of the Petitioner on the ground of non-payment of rent after deciding issue No. 5 in favour of the Respondent and it was further ordered that the Petitioner shall not be evicted from the disputed shop if he pays the amount clue along with costs and up-to-date interest at 6% per annum on arrears of rent and taxes within a period of 30 days from 30th September, 1977. The Rent Controller decided issue No. 6 against the Respondent-landlord and decided issues Nos. 1, 3 and 4 against the Petitioner-tenant. Issue No 2 was not discussed in view of findings on issue No. 1.

The Respondent-landlord was not satisfied with the order of the Rent Controller on issue No. 6 and as such he filed an appeal challenging the decision of the Rent Controller before the Appellate Authority. The Appellate Authority after considering the evidence of the parties came to the conclusion that the Petitioner has effected material alterations and additions in the shop and that he has materially impaired the utility and value of the shop by his illegal acts, and as such the Appellate Authority reversed the finding of the Rent Controller on issue No. 6 and ordered the eviction of the Petitioner from the disputed shop by giving one month''s time to vacate the shop and the appeal of the Respondent-landlord was accepted with costs.

It is admitted by both the parties that in pursuance to the order, dated 30th September, 1977, the Petitioner deposited Rs. 962/- on 28-10-1977.

The landlord alleged that the deposit of Rs. 962/- made by the tenant was short and as such he filed execution proceedings. The tenant filed objections u/s 47 CPC and claimed that the order of eviction is incapable of execution for various reasons and it was also asserted that deposit of Rs. 962/- by him is in fact excessive. This objection petition of the tenant was dismissed by the Rent Controller on 21st March, 1979, and the order of eviction passed on 30-9-1977 was held to be executable and deposit of Rs. 962/- was held to be short by Rs. 4.97 P.

The Petitioner-tenant has now filed revision petition No. 51 of 1979 challenging the findings of both the authorities, that is order of the Rent Controller, dated 30-9-1977 and the Appellate Authority, dated 13-3-1979 and in revision petition No. 37 of 1979 challenging the order of Rent Controller, dated 21-3-1979.

I have heard the Counsel for the parties and have gone through the records of the case carefully.

The first contention of the Petitioner''s Counsel is that the Petitioner has not in any way committed such acts as have materially impaired the value or the utility of the shop and hence the finding of the Appellate Authority on issue No. 6 was challenged.

The next contention of the Petitioner''s Counsel is that the amount claimed by the Respondent or assessed by the Rent Controller is not the ''amount due'' and that the rent for July, 1976, could not be claimed by the landlord-Respondent as the same could not be deemed to be ''arrears of rent'' which had become payable on 3-8-1976 and similarly the direction for payment of interest was also not in accordance with law and that no interest was payable on the taxes.

u/s 14(2)(iii), a tenant is liable to eviction "if the tenant has committed such acts as are likely to impair materially the value or utility of the building." The learned Counsel for the Petitioner contended that the Respondent has altogether failed to prove the necessary ingredients which could show that the tenant has materially impaired the value or the utility of the building. It was vehemently contended by the Counsel for the Petitioner that no such act has been committed by the Petitioner which has in any way diminished or reduced the value or the utility of the building. The Counsel for the Respondent on the other hand contended that there is sufficient evidence on record to show that the tenant Petitioner has diminished the value and the utility of the disputed shop and that the Petitioner tenant has by his act and conduct made himself liable to eviction on this score.

The Respondent has produced P.W. 1 Jagat Ram, P.W. 2 Amar Singh besides himself to prove his contentions. P.W. 1 Jagat Ram has stated that he worked as a Mistri in the disputed shop and in June, 1976, he at the instance of the Petitioner had replaced the tin sheets from the roof and had fixed plywood ceiling in the shop in question. He further stated that the upper storey of the shop in question which has cement flooring now rests upon the plywood sheets and that abeam of the shop has also been removed. It has further been stated by him that the value of the shop has been decreased. P.W. 2 Shri Amar Singh is an Engineer and he inspected the shop on 9th August, 1976. He has prepared a site plan along with notes which is Ex. P.W. 2/A and has stated that one pole (central beam) lias been removed and that an almirah has been fixed at that place. He has given his opinion that the replacement and the alterations which have been got effected in the shop have weakened the roof of the shop. Similarly, P.W. 3 Respondent appeared in the witness box as his own witness and has stated that the alterations and additions in the shop have been effected by the Petitioner without his consent in June, 1976, and that the tin roofing has been removed and that plywood has been fixed in the roof of the shop. He has further stated that one pole has been removed and that the ''plywood on the roof is not sufficient to take the load of the first storey. He has also stated that a telegraphic notice copy of which is Ex. P.W. 3/G was issued but in spite of the notice the work was not stopped by the Petitioner and that the Petitioner has also removed certain beams.

The Petitioner in rebuttal has produced Shri Kali Dass R.W. 1, Shri Jaikishan R.W. 2, Shri Attar Chand R.W. 3 and has appeared himself in the witness box as R.W. 4.

R.W. 1 Shri Kali Dass and R.W. 2 Shri Jai Kishan have only stated that the Petitioner has not made any additions or alterations in the disputed shop and that the disputed shop is in the same condition as it was earlier and that no changes have been effected by the Petitioner. R.W. 3 Shri Attar Chand has in his cross-examination admitted that the Petitioner has affected changes in the ceiling of the shop and has replaced the tin roofing with plywood roofing. He has in fact supported the version of the Respondent. R.W. 4 Petitioner himself has denied the case of the Respondent and has supported his case.

The Counsel for the Petitioner also referred to authorities 1978 (I) RCJ 406 Mohinder Singh v. Om Parkash and Ors., 1977 RCJ 752 Shri Anup Chand and Ors. v. Shri Tarlok Singh, 1966 CLJ 750 Charan Singh v. Shrimati Ananti and Ors. 1969 MLJ 19 G. Natrajan v.P. Thandavarayan in support of his contentions.

In 1978 RCJ 406 the alterations which had been effected in the premises were not material alterations. Similarly in 1977 RCJ 752 (supra), the alterations or the constructions made by the tenant were not of a permanent nature and the building could be restored to its original position without any damage whatsoever. In 1966 CLJ 750 (supra), the alleged alteration was of a very minor nature and was easily repairable in so much so that opening in the wall separating the two shops for the convenience of the tenant had been made and that this opening could easily be closed at a nominal cost of Rs. 15/- or Rs. 20/- and no damage had been done to the premises. In 1969, M.L.J., 19, only a hole 3" in diameter had been drilled to let out the smoke of the building which was leased for running a hotel and similarly a breaking of the parapet wall on the terrace of the building to the length of 2� X3" had been removed to enable the employees house in the adjacent building to have ingress and outgress to the hotel building and such acts were not held to have materially impaired the value and the utility of the building.

In the present case the evidence on record establishes the factum of the removal of the tin roofing by the Petitioner. Moreover, it is also an admitted fact that a notice, copy of which is Ex. P.W. 3/G, was issued by the Respondent to the Petitioner showing thereby that the additions and alterations were effected by the Petitioner without the consent of the Respondent. The removal of the tin roofing and the removal of a pole without the landlord''s consent is definitely sufficient to prove that the tenant has materially impaired the value and the utility of the building. It is also proved from the evidence of the Respondent that some scraping of the walls has also been done to remove the tin ceiling for fixing the plywood ceiling. The evidence has also been produced to the effect that these alterations have diminished the value and the life of the premises.

The authorities relied upon by Petitioner''s Counsel are not applicable to the facts of the present case. Under such circumstances the Petitioner has clearly committed acts which have materially impaired the value and the utility of the building and the conclusions arrived at by the Appellate Authority on issue No. 6 are correct and the same are upheld.

The next contention of the Petitioner''s Counsel is that the Petitioner had deposited Rs. 962/- on 28-10-77 but that the Petitioner is not liable to pay this amount. It was contended by the Petitioner''s Counsel that the petition for eviction was filed on 3-8-1976 and as such the rent which was payable upto 3-8-76 could only be up to June, 1976, and that the rent for the month of July, 76, was due on 3-8-76 but the same was not payable upto that date. It was further contended that the interest was payable to the Respondent upto 3-8-76 only on the amount of rent which was payable to the landlord on 3-8-76 and that no interest could be claimed on the taxes. According to the Petitioner''s Counsel the amount due which was payable on 3-8-76 was Rs. 750/-, that is, rent for 10 months from 1-9-75 to 30-6-76 and besides this he was also liable to pay Rs. 35/-, the costs of the petition which had been assessed by the Rent Controller and the taxes of Rs. 20.62 paise and interest from 1-9-75 to 3-8-76 on, A the rental amount of Rs. 750/-. The Petitioner''s Counsel further contended that the amount deposited by him under second proviso to Section 14(2) is excessive and in support of his contention he relied upon ILR 1977 H.P. 166 Prem Chand v. Amar Nath.

The Counsel for the Respondent contended that the tender of Rs. 962/- is short by Rs. 4.97 paise as the same was made on 28-10-77 and it was further contended that the Petitioner was liable to pay rent upto 31-7-76 along with costs of Rs. 35/- and taxes of Rs. 20.62 and interest was to be calculated upto 28-10-77 in accordance with second proviso of Section 14(2). In support of his contentions the Counsel for the Respondent relied upon 1968 P.L.R. 9, Ram Singh v. Javitri Devi, 1979 RCJ(I) 578 Narain Dutt v. Kedar Nath and Ors. and 1978 (I) RCJ 370 Shri Ranjit Singh v. Shri Amp Singh.

I have carefully considered the contentions of the learned Counsel for the parties and have gone through the authorities which have been cited by the learned Counsel and have also perused the provisions of Section 14.

Relevant provisions of Section 14 are as under:

Section 14. Eviction of tenants- (1)...

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied--

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:

Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at 6 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:

Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as a result of his order, if tenant pays the amount due within a period of 30 days from the date of order, or

(ii) that the tenant....

According to the ILR 1977 H.P. 166 the rent for the month of July, 1976, was not payable on 3rd August, 1976, when the application for eviction was filed although the rent had become due. As such if the Petitioner was to pay the rent on the first hearing of the application for eviction under the first proviso of Section 14(2) then in that case the Petitioner was only liable to pay Rs. 750/- that is, the amount of rent from 1-9-75 to 30-6-76 and Rs. 35/-, the amount of costs of the petition as assessed by the Rent Controller along with the taxes of Rs. 20.62 paise and the interest on the rental amount at the rate of 6% per annum. In the present case the Petitioner did not avail of the provisions of the first proviso of Section 14(2) and allowed the order of eviction to be passed against him on the ground of non-payment of rent due from him.

The second proviso of Section 14(2) is a further safeguard to the tenants who contest their liability of eviction but who ultimately fail in proving the payment of rent. According to the words used in the second proviso, the tenant has to pay the ''amount due''. Naturally the words ''amount due'' in the second proviso can only be interpreted as the amount which is calculated in accordance with the first proviso of Section 14(2)(i), i.e., it will include arrears of rent payable on the date of application and interest up-to-date of actual payment at 6% per annum on such arrears of rent which were payable together with costs of application as assessed by Collector. Besides this amount the tenant will be liable to pay any other amount i.e. costs etc. of the litigation which may be the result of final order of eviction. If this interpretation is given to Section 14 of the Act, then it is admitted by both parties that the amount of Rs. 962/- deposited by Petitioner is in excess of the ''amount due'' i.e. calculating the rent which was payable on 3-8-76 i.e. upto 30-6-76 only.

The Counsel for the landlord-Respondent further con- tended that the tenant Petitioner cannot challenge the order of the Rent Controller regarding the non-payment of rent because the tenant-Petitioner did not file any appeal against the order of the Rent Controller dated 30-9-77 and that in revision No. 51 of 79 lie cannot be allowed to contest this point as to what is the ''amount due'' u/s 14(2). The Counsel for the Petitioner-tenant on the other hand contended that the High Court has very wide powers and it can examine the records and can also satisfy itself as to the legality or propriety of the orders of the Rent Controller u/s 21(5) of the Act. After considering the contentions of the learned Counsel for the parties, I am inclined to take the view that the matter regarding the interpretation of the word ''amount due'' in the present case is purely a legal matter on the admitted facts and that this Court has every right to consider the same and can look into the legality or the propriety of the order of the Rent Controller.

In view of the above discussion, I hold that the Petitioner-tenant has made himself liable to eviction as he has materially impaired the value or the utility of the disputed shop and also on the ground of non-payment of rent. However, it is further held that the Petitioner-tenant has deposited the "amount due" after 30-9-77 as required under second proviso to Section 14(2) and as such he cannot be evicted on the ground of non-payment of rent.

As a result of the above discussion the revision petition No. 51 of 1979 is dismissed and the order dated 13-3-79 passed by the District Judge ordering the eviction of the tenant on the ground that the tenant has materially impaired the value and the utility of the shop is affirmed. Revision No. 37 of 79 arises out of execution proceedings taken in pursuance to the order of Rent Controller dated 30-9-77 and in view of my findings given in revision No. 51 of 1979 and the fact that the deposit of amount due by tenant-Petitioner on 28-10-77 is not short the revision petition No. 37 of 1979 will be deemed to be accepted.

In view of dismissal of revision petition No. 51 of 1979, the tenant-Petitioner is liable to eviction and as such the tenant-Petitioner is given one month''s time to vacate the disputed shop. The parties are left to bear their own costs in both the revision petitions.