Krishan Avtar Gupta vs Chameli Devi

M.S. Liberhan, J.—This revision petition arises out of an order of the Appellate Authority dated 17-2-1984 directing the ejectment of the tenant from the shop in dispute.

The ground on which the ejectment of the tenant was sought by the landlady which now survives for consideration is that the tenant petitioner has made alteration which has impaired the value and untility of the shop in dispute. The tenant denied the allegations.

The Rent Controller found that the alleged .alteration was neither proved as having been made at the hands of the tenant-petitioner nor the same had diminished the value or utility of the shop in dispute Consequently, the application for ejectment was dismissed.

The landlady preferred an appeal and the learned Appellate Authority reversed the finding with respect to the matetial alteration and its result of diminishing the value or utility of the shop in dispute and ordered the ejectment of the tenant.

Learned counsel-for the petitioner-tenant has challenged the findings in this revision petition and contends that the finding arrived at by the Appellate Authority cannot be sustained legally in as much as there is no specific plea with respect to the material alteration Consequently no amount of evidence can be looked into in the absence of the specific plea. The landlady has not stated any fact in the ejectment application, with respect to the material alteration attributed to the tenant as having been brought about by him. Mere reproduction of the wording of the Section does not constitute a cause of action. On the face of it, by reading the petition as well as the written statement no such issue arises. The petition as well as the written statement is totally bereft of the facts giving any cause of action to the landlady, in the absence of facts, the tenant has been prejudicially effected in defending his case.

In order to support the contention raised by him the learned counsel for the tenant, has taken me through the petition as well as the written statement. The only plea raised in the ejectment petition is that the tenant is liable to be evicted on the ground that he has done material alteration of the shop in dispute and has reduced its value and utility. In the written statement the allegation has been simply denied. In my considered view the vague pleas raised in the pleadings are of no consequence. In the absence of the material facts averred in the pleadings with respect to material alteration and their effect of diminishing the value and utility of the building no notice can be taken of such a plea. Mere reproduction of the words of a Section does not in itself constitute facts. Non-disclosure of the facts by the respondent landlady in her petition has frustrated the very purpose of pleading viz. that the tenant be given a fair chance to defend himself. A defendant is not expected to meet an indefinite allegation. Nor the tenant can effectively meet the allegation in the absence of any fact having been pleaded A party cannot be permitted to develop his/her case on the basis of the evidence, conveniently available & lead during the trial It cannot be expected that the defendant should find out from the evidence the case he is required to meet in his defence. In my considered view the parties cannot be sent to trial in absence of a fact averred by one and denied by the other side. When no facts are alleged and denied there is no question of issue having been arisen. ; In view of the well accepted principle that no amount of evidence can be looked into in absence of a specific plea, I am of the considered view that application for ejectment of the tenant is liable to be dismissed on this short ground alone.

The learned counsel for the petitioner contends that even on merits, the finding arrived at by the Appellate Authority cannot be sustained. The only averment made by the attorney of the landlady Dooagar Mal Gupta while appearing in the witness-box as A. W. 4 is to the effect that the premises in dispute were leased out to the tenant on 31 3. 1970 at a monthly rent Rs. 70/~ and the rent was incre- ased from time to time when finally on 1.1.1981 it was increased to Rs. 95/- per month. It is admitted by him that the landlady had purchased the Chabootra in front of the three shops of theirs i.e. the shop in dispute, a shop on its one side occupied by the landlady and a shop on the other side occupied by one Babu Lal. After purchase of the same, landlord had constructed a verandah in front of the three shops and roofed it. It was stated that on one. side of the shop in dispute, Babu Lal constructed two walls and shifted the door of his shop to the front thus including the portion of the verandah laying in front of his shop into his shop. The ejectment was sought on the ground of material alteration against Babu Lal which was declined and the landlady hag compromised with Babu Lal and accepted the alteration. It is also accepted that the portion of the Chabootra lying in front of their shop i.e. landlady''s which adjoins the shop in dispute on the other side, has been included by the landlady into her own shop. Though the later admission is in vague terms but it stands corroborated and proved beyond doubt in the inspection note of the learned Rent Controller wherein it has been categorically stated that the inclusion of the portion of the verendah in the three shops i.e. on one side the shop occupied by Babu Lal, on the other side, the premises occupied by the husband of the landlady, and the shop in dispute in the middle are symetrical and there does not appear to be any age difference of the construction material It has been specifically admitted by the attorney and husband of the landlady, namely Doongar Mal Gupta that they have roofed the verandah and colosed it by constructing a wall on one side of their shop and by putting at wooden partition on the other side.

It is not disputed in the course of arguments and otherwise also that on the other side of the shop in dispute the verandah was included in his shop by Babu Lal by constructing two walls in the verandah which act of said Babu Lal is alleged to have been condoned and accepted by the landlady. In view of these undisputed facts having come on record, it cannot be attributed to the tenant that he has constructed two walls to include in his shop the portion of the verandah lying in front of it.

The version of the landlady further stands belied by her own witness A. W. 5 Nathu Ram on whose statement the learned Appellate Authority has relied to raise the assumption to the effect that the con- struction made by him, was at the instance of the tenant-petitioner when in fact he has not stated so. This witness who is a masion and is alleged to have constructed the walls and shifted the door was examined after a lapse of almost seven years. I have been taken through his statement. He has not stated that the construction alleged to have been made by him was at the instance of the tenant petitioner In his statement on oath, he first stated that he had done the construction work on the asking of one Ram Chander, who is admittedly in no way connected with the tenant. In the same breath, he said that he has done so, on the asking of one Gupta, Radiowala. This reference was never got clarified by either of the parties Hence it is difficult to attribute any importance to this part of his statement and infer that the description in the statement of the witness fits in to the identity of the tenant-petitioner. It is not disputed that the tenant as well as attorney and husband of the landlady both are Gupta There is not an iota of evidence on record that the tenant is known as "Gupta Radiowala". Otherwise also, the statement of the witness is incredulous. It is not probable, to remember after lapse of almost 7 years as to at whose instance some wall was constructed and the door was shifted. Hence his statement cannot be relied upon particularly in the absence of any corroborative evidence, having been adduced.

Even reading the statement of A. W. 5 Nathu Ram at its face value that a 4 1/2" wide wall was constructed on one side of the verandah and the only door of the shop was shifted in front of the verandah does not by itself lead to an inference that the act has materially impaired the value or utility of the building particularly when there is not an iota of evidence on record whether the wall has been constructed by digging out any foundation or otherwise and that the shifting of the door, has in any way impaired the value much less materially or has affected the utility of the building.

I have been taken through the entire oral evidence of all the witnesses examined by the landlady, but the same does not inspire confidence to give a finding that any alteration has been effected by the tenant much less an alteration of material nature nor any inference to the effect that the alleged construction of one Pardah wall and shifting of a door without causing any loss to the building had resulted in material impairment of the building or diminished its utility is feasible on the basis of the oral evidence on the record.

In my considered view the learned Appellate Authority has attempted to read the statements totally out of the context assuming that the tenant has admitted effecting material alterations. I have been taken through the statement of the tenant Krishsn Avtar R.W. 1, reading the statement as a whole, 1 have got no other alternative but to accept the version put up by the tenant, who has categorically stated, and has not been disputed, that the shop in dispute was taken on rent at Rs. 70/- p.m. The rent was increased from time to time and finally it was increased to Rs. 95/- in the year 1981. The alleged material alteration is alleged to have been effected by the tenant somewhere in the year 1974. The ejectment petition has been filed in the year 1981, when in the meanwhile the rent had been increased twice over finally to Rs. 95/-. Construction of the wall or shifting of the door has been specifically denied by the tenant. The statement of the respondent- tenant draws corroboration from the circumstances which have come on record and it is well known that men may lie but not the circumstances. The itemised circumstances which corroborate his version are :- (i) that there is no mention in the ejectment application what alteration was made by the tenant; (ii) in the era of the protection granted to the tenant against increase of rent no grourds have been suggested why the rent was increased from Rs. 70/- to Rs. 95/- in a short span of about six/seven years; (iii) the inspection note of the Rent Controller wherein it has been observed that the wall between the shop of Doongar Mal Gupta, the husband of the landlady and the shop of the tenant as also the wall between the shop of the tenant and Babu Lal are of the same age; and lastly (iv) the admission made by Doongar Mal Gupta that after the purchase of the Chabutra in front of all the three shops owned by his wife, they had converted the Chabutra into verandah by putting wooden planks end roof in the year 1973 which squarely explains the increase of rent from Rs. 70/- to Rs. 95/- in October, 1974. This fact is not disputed in the course of arguments. Even the statement of A.W. 5 Nathu Ram the alleged mason produced by the landlady corroborates the fact that the construction was made somewhere in the year 1974. It is not disputed that Doongar Mal Gupta was having the adjoining shop when according to the statement of A.W. 5 Nathu Ram, on which the landlady relies, the construction had been made in 1974, still the landlady did not raise even a little finger till the year 1981- Rather the attempt to get Babu Lal ejected on similar ground having met an unsuccessful fate, she bad compromised with him. No reasons have been advanced as to why no steps were taken for a period of almost seven years when the landlady was aware of her rights, and addedly she has been accepting the rent without any objection and rather had increased it from time to time. The position of the shops on both sides speaks volume in itself i.e. both the shops on the right as well as left of the shop in dispute owned by the landlady include the verandah and the door is fixed in the shop in dispute in symmetry with the shops on the right and the left. The symmetry cannot be attributed to a sheer coincidence.

In view of the reasons recorded above the finding arrived at by the learned appellate authority on the basis of assumption and inference is improper. The appellate authority has failed to take note of the circumstances and the undisputed facts which have emerged on record. The findings both with respect to the change attributed to the tenant and its materially effecting the value and utility of the building are reversed.

Learned counsel for the respondent contends that the finding of fact arrived at by the appellate authority after appraisal of evidence cannot be set aside while exercising the revisional jurisdiction. In order to support this contention he relies on Siri Bam v. Air Com Mahabir Chand 1981 (2) S.C.R. 445, Amur Nath (deceased) by Chandu Bhushan v. Som Nath (deceased) by Kaushalya ete. 1982 C. L. R. 173 and Smt. Indumati v. Kirpal Singh Lamba (1981) 15 P L R. 737. The argument has been noted as it was advanced, to be rejected. Final reference to the judgments cited shows that the conspectous of the law laid down in these judgments is that interference in finding of fact in revisional jurisdiction is bad unless a finding is shown to be improper or suffering from any error of law.

In view of my observations made above the finding arrived at by the Appellate Authority suffers both from error of law and improper reading of evidence and further the Authority below raised inferences uncalled for and, therefore, the finding cannot be sustained. Otherwise also, the judgment cited are not paramateria on the facts and circumstances of the case in hand. In all these judgments, observations have been made, in the peculiar facts and circumstances of each case, with respect to the findings arrived at in those cases with respect to personal necessity of the landlord.

In view of the above observations of mine, the revision petition is accepted, the impugned order of the Appellate Authority is set aside and the application for ejectment of the tenant is dismissed with costs.