Kartar Singh vs Kesar Singh and another

Rajendera Nath Mittal, J.—This revision petition has been tiled by the defendant against the judgment of the Appellate Authority, Jullundur, dated November 5, 1974

Briefly the facts are that Kesar Singh and Tersem Singh are the owners of two shoos situated in Banga District Jullundur. They leased out the shops to Kartar Singh tenant on a rent of Rs. (sic) P.M. each. It is alleged that the tenant made the following additions and alterations in the shops without the permission of the landlords :--

(1) He has demolished the partition wall of the front rooms of the shops thus turning the two shops into one.

(ii) He has likewise made an opening in partition wall of rooms behind the front room

(iii) He has removed the "Chaukhats" and "takhtas" of the four doors shown in red in the appended plan

(iv) He has included the verandah in the front room and has fixed a shutter on one of the doors of the verandah and a tin door on the other

They consequently filed a petition for his ejectment on the ground that he had made such changes which had impaired materially the utility of the building and consequently he was liable to ejectment. The application was contested by the tenant mainly on two grounds, namely, that the same had been made with the consent of the landlords and secondly that these have not impaired materially the utility of the building.

The Rent Controller came to the conclusion that the structural changes were made in the shops without the consent of the landlords which had impaired the utility of the building materially Consequently, he ordered his ejectment. He went up in appeal before the Appellate Authority. Jullundur, who affirmed the judgment of the Rent Controller and dismissed the same. He has now come in revision against the judgment of the Appellate Authority to this Court.

It is contended by the learned counsel for the petitioner that the alterations had been made with the consent of the landlords and consequently they cannot say that the tenant was liable to be ejected on that ground (sic) ret my inability to accept the contention. Both the Courts after taking into consideration the evidence, have held that the alterations have not been made with the consent of the landlords. I have also been taken through the evidence both oral as well as documentals and find that there are to grounds to interfere with the concurrent finding arrived at by too authorities below I, consequently, reject the contention of the learned counsel.

It is then contended by Mr. Amar Dutt that the landlords have not proved that by making the alterations in the structure the utility of the property has been impaired materially. He further submits that on the other hand the value of the property has been improved by the said changes According to the Counsel, the authorities below have erroneously ordered ejectment.

I have given a thoughful consideration to the arguments of the learned counsel (sic) I am not improssed with it. The trial Court appointed a Commissioner to go to the spot and find out what structural alterations have been made by the tenant. In his report dated August 6, (sic), he pointed out the following structural alterations :

Four wooden doors A, B, C and D are removed altogether.

The Well E between the shops X and Y no more exists.

A small petition wall F is added so as to include the verandah as a portion of the shop

A door of wooden frame work covered with tin sheets is fitted in the verandah Gate C, and a G I roller shutter is fitted in the verandah gate H.

The portion consisting of shops X and Y and the verandah now enclosed as a part of the shop is in a thoroughly renovated condition as was essentially required to cover the repair work of additions and alterations made as described above.

Note: The reference in the report to the words A B C etc., relate to the plan which was prepared by Commissioner at the spot and it is part of the report.

From the aforesaid report it is evident that the petitioner has made great structural changes in the shops He even removed one of the walls to convert the two shops into one. He removed doors, intervening portion of the shops and the Kothris behind it. The question is whether by making the said alterations, there is impairment in value or utility of the building or not It is held to Sir Krishan Dev v. Jhabu Ram (1969) 71 P.L.R. 39, that the impairment in value or utility of a building has to be examined from the point of view of the owner and not from the point of view of the tenant. Where a building has become totally different from that which was rented out to the tenant this stile of affairs has come out by the Act of the tenant no tenant is permitted to do this under the law. It is further held that where the alterations are of a far reaching nature and have completely altered the nature of the building, the case is covered by Section 13 (2) (iii) of the East Punjab Urban Rent Restriction Act. To the same effect observations have been made in Banarst Dass v. Sunder Dass and another (1969) 71 P.L.R. 59, Arjan Singh v. Kishan Chand and another 1972 All I.R C.J. 17 (S.N.) and Raj Kumar v. Ram Kunwan and another 1972 All I.R.C.J. 18 (S.N.), I am in respectful agreement with the observation made in these cases.

Section 13 ( ) (iii) says that a landlord can make an application for ejectment of the tenant on the ground that the tenant had committed such acts as are likely to impair materially the value or utility of the building or the rested land and if the Controller comes to that finding, after giving a reasonable opportunity to a tenant, he can order his ejectment From the aforesaid clause it is clear that the landlord has to prove the material facts and the inference as to whether the value or utility of the building had been impaired has to be drawn by the Court upon the facts proved by him. In the aforesaid view, I am forti fied by the observations in Chatar Sain v. Bishan Lal and others (1976) 78 P.L.R. 174: 1976 R.C.J. 17, the relevant portion of which runs as follows : --

"The expression" are likely to impair materially the value or utility of the building" denotes that it would be a matter of opinion or deduction to be drawn from the nature of the alteration or construction that the same would or would not impair the value or utility of the premises. That means that it would be the Court who would ultimately come to that finding (sic) consideration of the material and evidence brought on record.

The case which was dealt with by the learned Judge was a similar on. In that case a verandah had bees converted in to a room. It was ruled by the learned Judge that a building with a verandah is admittedly more useful than the one without verandah. Therefore, there can hardly be any doubt that the inclusion of verandah into the shop constitutes structural alteration and bad impaired materially the utility of the premises. The aforesaid observations arc fully applicable to the present case. After taking into consideration the aforesaid facts I do not find sufficient reasons to interfere with the findings of the authorities below.

Mr. Amar Dutt had placed reliance on G Natarajan v. P. Thandavaryan (1969) 11 M.I.J. 19. The facts of that case are however, distinguishable In that case a parapet will 2''x3'' had been demolished and a hole 3" in diameter had been made in the tarrace portion to pass smoke. Thus the facts of that case are distinguishable and he observations therein are of no assistance to decide the present case.

For the reasons recorded above, the revision petition fails and the same is dismissed with costs. Counsel''s fee Rs. 200/-. The petitioner is, however, granted 2 months time to vacate the shops subject to his depositing arrears of rent in the Court of the Rent Controller within a period of 15 days and payment of rent for future by 15th of each month in advance. In case the fails to do so, he will not be entitled to the concession and liable to ejectment forthwith.