Lakhmi Chand and Others vs Hira Lal

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

Hira Lal, landlord, sought the ejectment of his tenant Kundan Lal from the shop in dispute, alleging that the tenant had materially impaired the value and utility of the demised premises by raising the height of the shop in dispute by four/five feet without his consent, and also placing a shutter in place of the wooden door as also constructing a slab in the middle of the shop During the pendency of the application before the Rent Controller Kundan Lal, tenant, died, and his legal representatives were brought on record, who are now the Petitioners In the written statement, the allegations of the landlord were controverted It was pleaded that whatever the construction was made was done with the consent of the landlord. The learned Rent Controller found that the landlord bad failed to establish the allegations made by him and further to prove how the said alterations had resulted in the deterioration of the shop in dispute. Consequently, the ejectment application was dismissed.

In appeal, the learned Appellate Authority reversed the said finding of the ent Controller and came to the conclusion that from the evidence on record it was clearly proved that the changes brought by the tenant in the shop in dispute were material changes having been effected without the written consent of the landlord Consequently, eviction order was pasted. Aggrieved with that, the tenants have filed this petition.

Learned Counsel for the Petitioners contended that there is no cogent evidence on record to prove that the tenant had raised the height of the roof of the shop in dispute by four/five feet as found by the Appellate Authority. According to the learned Counsel, the evidence on record was not at all discussed, and, therefore, the finding arrived at was vitiated It was also contended that changing the roof from kacha to pucca did net materially impair the value and utility of the demised premises

I have heard the learned Counsel for the parties and also gone through the evidence on record In the ejectment application it was specifically pleaded by the landlord that the tenant, without his permission, had raised the height of the roof by four/five feet, but in the Written Statement filed on behalf of the tenant, it was not specifically denied as such; rather, the plea taken was that whatever alterations were made, the same were done with the consent of the landlord Thus, the tenant failed to prove by leading any cogent evidence that the alterations were made with the consent of the landlord The Appellate Authority mainly relied on the report of the local Commissioner (Ex. AW 5/1) according to which the roof of the shop had fallen down and the walls were newly plastered It has also come in evidence that there are other shops of the lardlord adjoining the shop in dispute, and the roof of the shop in dispute has been raised by the tenant to an extent of four/five feet in comparison to the other shop. Thus, it was concluded by the Appellate Authority that the structural changes made by the tenant in this case had materially impaired the value and utility of the demised premises as the landlord cannot construct the second floor over the shop in dispute along with the other shops. Though the tenant has also placed the shutter in place of the wooden door as also a slab has been constructed in the middle of the shop, but the most material alteration which has materially impaired the value and utility of the demised premises is the raising of the height of the shop in dispute by four/five feet On these facts, it could not be successfully argued that the tenant had not materially impaired the value and utility of the demised premises. In these circumstances, I do not find any illegality or impropriety with the finding of the Appellate Authority so as to be interfered with in revisional jurisdiction. Consequently, the petition fails and is dismissed with costs.

However, the tenants are allowed three months'' time to vacate the premises provided all the arreas of rent, if any, and advance rent for three months are deposited with the Rent Controller within three weeks from today, with an undertaking in writing by the tenants that after expiry of the said period, they shall hand over vacant possession of the shop in dispute to the landlord