Lal Chand vs Kesar Devi

Dr. Vineet Kothari, J.—The defendant Lal Chand s/o Hari Ram by caste Darji has filed the present second appeal under Section 100 CPC being aggrieved by the eviction decree given by the courts below under the provisions of the Rent Control Act, 1950 on 9/9/1993.

The eviction suit was filed by the plaintiff Kesar Devi w/o Murlidhar Ginoria on 24/5/1984 about 31 years ago inter alia on the ground of default in payment of rent, personal and bonafide necessity of the landlady and her family members and material alteration in the suit property without the consent of the landlady.

The suit was decreed by the trial court in favour of the plaintiff on 27/5/1991 and while the personal and bonafide need of the landlady and her family members was found established deciding issue No. 2 in favour of the landlady, the issues of material alteration and default in payment of rent was decided against the plaintiff. The relevant findings for the learned trial court from its order dated 27/5/1991 are quoted below for ready reference:-

The cross appeals filed by both, the plaintiff-landlady and defendant-tenant, namely; CAD No. 32/91-Lal Chand vs. Smt. Kesar Devi and CAD No. 41/91 - Smt. Kesar Devi vs. Lal Chand came to be decided by the Addl. District and Sessions Judge, Nagaur Camp Deedwana on 30/7/1993 and the finding of the learned trial court on the issue of personal and bonafide need of the landlady and her family members was reversed by the learned appellate court but the decree of eviction was upheld on the ground of material alteration in the suit property. The relevant extract of the judgment of first appellate court are quoted below for ready reference:-

Being aggrieved by the eviction decree, the defendant tenant has filed the present second appeal in this Court on 9/9/1993, while the landlady has filed the cross objections under Order 41 Rule 22 CPC in the present second appeal on 17/11/1993.

The following substantial question of law was framed by the coordinate bench of this Court on 26/10/1993:

"Whether the lower appellate court was right in reversing the finding of the trial court that the alleged construction in the demised premises amounts to material alteration within the provision of 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act." 7. On the cross objections filed by the landlady, the following substantial question of law was framed by this Court on 26/7/2012:

"Whether the learned first appellate court was justified in reversing the findings of the trial court on issues No. 2 and 3 regarding the reasonable and bonafide necessity of landlord for eviction of defendant from the suit premises?" 8. The learned counsel for the defendant-tenant, Mr. R.K. Thanvi, Sr. Advocate contended that the learned first appellate court was not justified in reversing the findings of the learned trial court with regard to material alteration, since the nature of the alleged material alteration carried out on the first floor of the residential house in question was simply raising of a brick wall without any foundation work, which could be removed at any time, to create a temporary bathroom for the utility of the tenant''s family, which could not be said to be a material alteration as defined in Section 13(1)(c) of the Act.

Refuting the bonafide and personal need of the landlady and her family members, learned counsel Mr. R.K. Thanvi urged that the substantial question of law framed by this Court later on, on 26/7/2012 about issue Nos. 2 and 3 regarding the personal and bonafide necessity of the landlady, is not a substantial question of law since the findings of the learned first appellate court about there being no personal and bonafide necessity of the landlady as she was living with her family in a nearby residential house and the present suit house was just after the 3-4 houses in the same vicinity and the said finding of the first appellate court are findings of facts not giving rise to any substantial question of law, therefore, the eviction decree deserves to be reversed and the present second appeal of the defendant tenant deserves to be allowed while rejecting the cross objections of the landlady.

Learned counsel Mr. R.K. Thanvi, Sr. Advocate relied upon the following judgments in support of his contentions:

(i) Abdul Kayum and Others Vs. Anand Prakash and Others--> ;

(ii) Smt. Supyar Bai vs. Smt. Gordhan Bai - 1992 (1) WLC 590;

(iii) Padam Chand vs. Pramod Kumar - 2011 (2) DNJ (Raj.) 736 and

(iv) Rajasthan Engineering Works and Another Vs. L. Rs. of Late Sh. Rajmal and Others, .

On the other hand, Mr. K.C. Samdariya, learned counsel appearing for the respondent-landlady submitted that the findings of the first appellate court on the issue No. 2 about the personal and bonafide necessity of the landlady and her family members are perverse and the court below has substituted its own opinion about the bonafide necessity of the landlady, whereas, in view of catena of the judgments of Supreme Court and of this Court, the settled legal position is that the landlord is the best judge of his personal and bonafide needs and neither the tenant nor the Court can substitute its own opinion and dictate terms in this regard.

Mr. K.C. Samdariya also submitted that the learned court below has gone to the extent of saying that by making necessary changes in the existing residential house where the family was living, they could accommodate themselves and also even with the expansion of family there was no need of any house, namely the suit house to be occupied, whereas, because of the strained relationship between the landlady mother-in-law and wife of her son - Mangilal, who had shifted from Bombay to Deedwana long back and, therefore, separate residential house was needed for son''s family was a justified and reasonable need for the suit house because the present house in which the landlady and family members are living was falling short of accommodation required but this house had been given by Will to the unmarried daughter of the landlady and the other daughter had been married off. He, therefore, submitted that the findings on the said issue No. 2 are perverse while the bonafide need found by the trial court was justified and cross objections filed by the landlady deserve to be allowed and the substantial question of law framed on 26/7/2012 deserves to be answered in favour of the landlady.

About material alteration, Mr. K.C. Samdariya also submitted that it is not necessary that material alteration should be carried out only by raising of a foundation since the question of digging of any foundation on the first floor obviously does not arise but if the alteration has been carried out without the consent of the landlady and the said construction has blocked air and light of the rooms on the first floor then obviously it is a ''material alteration'' and, therefore, the findings of first appellate court on that issue were correct and justified and on both the counts, the decree of eviction deserves to be upheld.

Mr. K.C. Samdariya submitted that the present suit was filed in the year 1984, about 31 years ago, and even though both the courts below have given the eviction decree, though on different grounds, the landlady and her family members have been deprived of the use of occupation of the said residential house and, therefore, appropriate mesne profit deserves to be awarded in favour of the landlady. He also relied on several judgments of Hon''ble Supreme Court and of this Court including the recent judgment on the issue of material alteration in the case of Mahant Prahladdas Chela Mahant Yuktiram Vs. Devi Singh S/o Lal Singh (D) through LR''s - S.B. Civil Second Appeal No. 133/2001 - decided on 24/3/2015.

I have heard the learned counsels at some length and perused the record of the case and the judgments cited at the bar.

This Court is of the considered opinion that the present appeal of the defendant-tenant deserves to be dismissed and the cross objections filed by the landlady deserve to be allowed and both the substantial questions of law framed in the present second appeal deserve to be answered in favour of the landlady and against the defendant-tenant.

The legal position about personal and bonafide necessity of the landlord/landlady is fairly well settled and in view of the change in trend of the Hon''ble Supreme Court also in past few years, this Court has been consistently taking the view that about personal and bonafide need of the landlord, the courts should not substitute their opinion nor the tenant is permitted to dictate the terms as to how the landlord should satisfy his business and residential needs.

Once in the present case, the landlady'' son and other witnesses examined by the trial court had clearly stated that with the expansion of the family with the shifting of landlady''s son-Mangi Lal, from Bombay to Deedwana, whose wife was not at very happy terms with mother-in-law-landlady and they needed a separate house, which was incidentally situated in the same vicinity, it clearly appears that there was a genuine need for the additional house to the family and, therefore, the first appellate court has clearly fallen into an error in holding that the eviction decree on this count should not be given because the landlady with her family could live in the same existing house in which they were living without requiring tenant to evict the suit house. The perversity in the opinion of the learned first appellate court from the quoted portion above is writ large and, therefore, the findings on the basis of evidence led before the trial court cannot be sustained. Therefore, the question formed by this Court on 26/7/2012 about issue Nos. 2 and 3 deserves to be answered in favour of the landlady.

On issue No. 5 regarding the material alteration, this Court is of the opinion that the learned first appellate appears to have taken the correct view of the matter that on the first floor the alteration for making a bathroom was also a ''material alteration'' and it was not necessary that such alteration should be of permanent nature and even without the consent of the landlady such alteration carried out by the tenant will fall within the definition of material alteration falling with the mischief of Section 13(1)(c) of the Act and the learned trial court while deciding the said issue had erred in holding that the plaintiff''s witnesses have failed to establish the carrying out of such alteration properly and, therefore, the eviction decree should not be granted on this ground.

This Court in the case of Mahant Prahladdas Chela Mahant Yuktiram Vs. Devi Singh S/o Lal Singh (D) through LR''s - S.B. Civil Second Appeal No. 133/2001 recently decided on 24/3/2015, has held that even making of a room with tin shed of temporary structure amounted to material alteration and eviction decree can be given. The relevant extract of the said judgment is quoted below for ready reference:-

"7. I have heard the learned counsel for the parties at length and perused the record and the judgments cited at bar. The term ''material alteration'' as employed in Section 13(1)(c) of the Act of 1950 cannot be construed in a straitjacket manner and what is material alteration, always depends upon the facts of each case. The temporary construction for the utility of the demised property, may not amount to a "material alteration", furnishing a ground of eviction as held by this Court in the case of Supyar Bai (supra) but the facts found in the present case appear to be on the other side of the dividing line, which is thin. The demised property in the present case was only one room and kitchen along with an open land given in tenancy way-back in the year 1965 at a monthly of Rs. 13/- only. The open land was not given in tenancy at all. The material alteration carried out by the defendant/tenant on the open land by encroachment as shown in the photographs also produced before this Court and as found by the learned trial court was that the construction of a wall and on roof a Tin shed was made by defendant/tenant admittedly without the leave and permission of the landlord. The nature of user by the defendant whether for keeping live stocks/she-goats in that open land covered by tin shed or otherwise, is not the relevant consideration.

The ground of eviction is under Section 13(1)(c) "material alteration without permission of the landlord". The plaintiff/landlord has claimed eviction on the ground that such material alteration was of permanent nature and the same was carried out by the defendant without the permission or consent of the landlord. There is variation of opinion in the two courts below but as far as the facts are concerned the finding are common. While the learned trial court found it to be a material alteration falling within the mischief of Section 13(1)(c) of the Act of 1950 resulting in eviction decree, but the learned appellate court found it otherwise.

This Court dealt with a case of "material alterations" in the case of Ajaib Singh Vs. Delhi Cloth and General Mills Co. Ltd. New Delhi (supra) and considering the ratio case of Supyar Bai (supra), held that where the tenant has a showroom of DCM, was in the nature of removal of two doors of the suit premises and the wall between two parts of the demised premises was raised by the tenant for making it a bigger showroom, and it was argued that it will enhance the value of the rented premises, the Court held that such structural changes amounted to material alteration. Following the Hon''ble Supreme Court decision in the case of Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, , this Court held as under:-

"He relied upon a decision delivered in the case of Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, , the relevant para of the aforesaid judgment is quoted herein below:-

"Section 13(2)(iii) contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purposes.

In the instant case even if it is assumed that the tenant had raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. The removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new does and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the landlords within the meaning of Section 13(2)(iii). Thus in the facts and circumstances of the case squarely falls within the mischief of the provisions contained in Section 13(2)(iii) of the Act which make the tenant liable for eviction from the demised premises.

In that case, this Court also negatived the defendant''s claim that such alterations were done for security reasons. The relevant para 11 is also quoted herein below for ready reference: -

"11. As far as the issue of material alteration is concerned, the nature of the alterations carried out by the tenant were admittedly done without prior permission and consent of the landlord. Some of the structural changes were also made like removal of two doors, one wall in between and in place of that iron girders were put to make it bigger hall (showroom). These alterations indisputably were material alterations. Closing of ventilators, two windows by the tenant was a civil work, of permanent nature and, so also, the designs of arches and pillars were also modified by the tenant. By no stretch of imagination, this could be said to be not a material alteration. If such work was to be done, which could be done only with the consent of the landlord, however, in the absence of the same, once the fact of such material alteration has been proved by the plaintiff, the same could not be defended on the ground of alleged security reasons. There was no security reason at all and at best it could be said to be to bring construction in conformity with the requirement of a showroom for selling clothes. With the removal of doors, glass panels were put up with removal of wall and putting up iron girders, the size of the showroom was increased by removal of central wall. All these alterations having been done without express or implied consent of the landlord definitely resulted in material alterations of the suit premises without their consent and consequently the ground of eviction was made out." 13. Thus, this Court is of the considered opinion that first appellate court has erred in refusing eviction decree though the facts found by it were same as found by the learned trial court. The construction of tin shed by raising of a wall on the one side with the foundational work done by the defendant/tenant by encroaching on the open land belonging to the plaintiff/landlord certainly amounted to material alteration and nuisance in the suit premises furnished ground of eviction u/s 13(1)(c) and 13(1)(d) of the Act of 1950, and the learned first appellate was not justified in refusing the eviction decree. The present second appeal of the appellant/plaintiff/landlord, therefore, deserves to be allowed and the substantial question of law, framed above, deserves to be answered in favour of appellant/plaintiff."

On the issue of personal and bonafide necessity, there are catena of judgments and some of which are referred hereinbelow and it is clearly laid down that the landlord/landlady is the best judge to determine his/her needs and existence of such need having been ascertained, the reasonableness should not be viewed with a narrow or telescopic view and the courts should not tend to substitute their personal opinion in this regard.

In Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, , the Hon''ble Supreme Court held that where the eviction is sought for bonafide requirement of landlord, the relevant date on which the said need has to be adjudged is the date of filing the suit and subsequent events taking place during the period of litigation like engaging in other activity or business for which premises in question is required do not upset such bonafide need unless such subsequent events are of such a nature and dimension as to completely eclipse such need and make it lose significance altogether and the process of litigation cannot be made the basis for denying the landlord relief when litigation at last reaches the final stage.

In Prativa Devi Vs. T.V. Krishnan, , the three Judges Bench of the Hon''ble Supreme Court while holding that the landlord is the best judge of his residential requirement observed as under:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to sh ow that she had any kind of right whatever to stay in the house of the family friend. On the other hand, she was there merely by sufferance. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bonafides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bonafide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 24. More over, as held by Hon''ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, , which has been later on reaffirmed by three Judges bench decision of Hon''ble Apex Court in The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others, in which the Hon''ble Apex Court has clearly noticed that even the trend of Apex Court has shifted from pro-tenant from 1950s to 1990s to pro-landlord from 1990s onwards. The relevant extracts from the judgments in case of Satyawati Sharma (supra) and Super Max International Pvt. Ltd. are quoted below for ready reference:

"12. There has been a definite shift in the court''s approach while interpreting the rent control legislations. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant. In these cases the Court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments." The relevant para 71 of the judgment of Apex Court in Super Max International (P) Ltd. (supra) is quoted below for ready reference:

"71. We reaffirm the views expressed in Satyawati Sharma and emphasize the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court''s protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-,plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)" 25. This Court in the case of LR''s of Prakash Vs. Poornima (SBCSA No. 132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms:-

"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon''ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business". 26. In the case of Denzil Najrath Vs. LR''s of Balwant Singh and Ors. reported in 2011 (3) DNJ (Raj.) 1217 this Court has held under:

"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff''s family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit." 27. Now coming to the judgments relied upon by the learned counsel for the appellant-defendant-tenant, Mr. R.K. Thanvi, Sr. Advocate, this Court finds that same are of little help to the defendant-tenant and are distinguishable on facts of the present case.

In Abdul Kayum and Others Vs. Anand Prakash and Others--> the nature of alterations made were that on the existing 6'' high wall the tenant had put up some loose stones to support the iron angles and cement sheets were fixed on those iron angles and it was held that the same was a temporary structure and did not come within the mischief of material alteration so as to justify eviction on that ground. The facts of this case are clearly distinguishable from the facts of the present case in hand.

In Supyar Bai vs. Smt. Gordhan Bai - 1992(1) WLC 590, the learned Single Judge of this Court was concerned with the construction of temporary structure of a room created by the tenant by raising height of the wall to keep his hens and putting a door with a roof of wooden planks, the Court held that it was not material alteration to result into eviction decree against the tenant. This case is distinguishable on facts since in the present case not only Pucca wall was raised on the first floor to construct a bathroom but it also blocked the air and light of the two rooms on the first floor. Thus, it was clearly a material alteration falling within the mischief of Section 13(1)(c).

Mr. R.K.Thanvi, Sr. Advocate also relied upon the judgment of this Court in the case of Rajasthan Engineer Works vs. L.R''s of Rajmal - 2011 (2) DNJ 740 and Rajasthan Engineering Works and Another Vs. L. Rs. of Late Sh. Rajmal and Others, for his contention that finding about the personal and bonafide need of the landlord are findings of fact and, therefore, no substantial question of law arises out of the same.

This Court has found that the findings given by the learned first appellate court reversing the findings of the trial court are perverse as the first appellate court has substituted its own opinion instead of looking into the reasonableness and bonafide necessity of the landlady, which was clearly established with the evidence that his son having shifted from Bombay to Deedwana and his wife being not in good terms with her mother-in-law-landlady, the landlady wanted to shift her son''s family to the suit house and, therefore, this perverse finding cannot be sustained by this Court, which not only gives rise to substantial question of law as framed by this Court but the same is also required to be answered in favour of the landlady.

In view of the above legal position, this Court is satisfied that the present second appeal filed by the defendant-tenant deserves to be dismissed, the same is accordingly dismissed with costs, which are quantified at Rs. 5,000/- to be paid by the defendant-tenant to the landlady or his legal representatives.

The cross objections filed by the landlady are allowed. The decree of eviction on both the counts, namely; personal and bonafide need and material alteration deserves to be maintained.

The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit premises to the defendant-plaintiff within a period of nine months from today i.e. on or before 31st December, 2015 and shall pay mesne profit @ Rs. 2,000/- per month from April, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff and in case there is any default in payment of mesne profit, the period of nine months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-defendant-tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void and such third party will also be bound by this decree. The appellant-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlady within a period of nine months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.