Mangal Dass vs Baldev Singh and Another

V.K. Jhanji, J.—This is tenant''s revision.

Petitioner is a tenant in the shop which consists of two parts; first part is being used for the sale of confectionery items whereas the back room is used for the preparation of the same. The shop was taken on rent by the tenant somewhere in the year 1947. The present landlord (respondent herein) purchased this property in 1969. After the purchase, tenant accepted him as his landlord and in acknowledgement thereto executed a rent note dated July 5, 1969. On 10-10-1983, the respondent filed ejectment petition against the tenant (petitioner herein) seeking his ejectment from the shop in dispute on the ground that he has materially impaired the value and utility of the shop in dispute by making a hole in the back room for emiting smoke as well by constructing two Bhathees. It was claimed in the ejectment petition that vide agreement dated 22-3-1971 the tenant had agreed to close the hole. It was also stated that in the agreement, tenant admitted that the hole was made without the consent of the landlord. The hole was closed for some time as per the agreement. In pursuance of the agreement, a few days before the filing of the application, the same was again opened by the tenant and, therefore, the ejectment was claimed as he has impaired the value and utility of the shop in dispute. Tenant contested the petition. It was claimed by the tenant that he is occupying the premises since 1947. The Bhathees as well as the hole are in existence from the inception of the tenancy. With regard to the execution of agreement dated 22.3.1971 (Ex. A-2), he gave the explanation that the landlord represented to him that the rent note dated 5.7.1969 has been lost and, therefore, he requires another rent note from him. Without realising that the same was an agreement, he signed the same. Rent Controller, on the appraisal of the evidence, dismissed the ejectment application. Rent Controller found that she hole for emitting smoke as well as the Bhathees were already there and no such construction was made subsequently by the tenant as claimed by the landlord. With regard to the extortion of the agreement, it was also held that the same has not been proved to have been executed by the tenant. On appeal by the landlord, the Appellate Authority set aside the finding of the Rent Controller and passed an order of ejectment. This order being impugned here in this civil revision.

After hearing the learned counsel, I am of the view that this revision deserves to succeed.

Admittedly the petitioner is occupying the shop in dispute since 1947. He has been carrying on the business of preparing and selling of confectionery items in the shop in dispute. The con-fectionery items are being prepared therein for the last so many years and so it cannot be presumed that the alleged alterations were made after the premises were purchased by the landlord. So far as the execution of the agreement is concerned. I am of the considered view that firstly the same has not been satisfactorily proved. Secondly even if it is assumed that the execution is proved, even then if the tenant had violated the terms of the agreement, his ejectment could only be ordered under the provisions of the Act and not otherwise. Any construction raised by the tenant would not entitle the landlord to claim ejectment of his tenant, unless it is proved that such a construction has materially impaired the value and utility of the building Expression "Acts likely to impair the value and utility of the building" means material structural alterations which tend to change the nature and character of the building. Tenant cannot be ejected if for the convenient use of the premises, he has made a hole to let out smoke or has made two Bhathees for preparing the confectionery items particularly when the shop in dispute was let out for the purpose of carrying on the business of preparing and selling of confectionery items. Thus, having regard to the nature of the construction alleged to have been made by the tenant, I am of the considered view that the Appellate Authority has erred in ordering ejectment of the tenant on the ground of material impairment in the value and utility of the building.

Learned counsel for the respondent stated that this Court should not interfere with the order of the Appellate Authority as the same is a finding of fact. I am unable to accept this argument because the Appellate Authority has failed to apply the correct principle of law while deciding the appeal.

In this view of the matter, the impugned order is set aside and the civil revision is allowed In consequence thereof, the ejectment petition stands dismissed with no order as to costs.