Mohinder Singh vs Ram Kumar

Jai Singh Sekhon, J.—The landlord has directed this revision petition u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Rent Act), against the order of the Appellate Authority, Gurgaon, upholding the order of the Rent Controller regarding the dismissal of the application of the landlord for ejectment of the tenant on the ground of materially impairing the value and utility of the shop in dispute.

In brief, the facts are that Mohinder Singh landlord, purchased the shop in dispute located in Aggarwal Market, Gurgaon Cantt. on 1st February, 1971 from its previous owner. Raj Kumar, tenant-Respondent. was already a tenant of this shop under the previous landlord. The landlord sought the ejectment of the tenant from the shop in dispute on the basis of non-payment of rent since 1st February. 1971, besides on the ground that the tenant had materially impaired the value and utility of the shop by breaking the Chabutra in order to lower down the level of the shop and by extending the shutter of shop by increasing it to the length of 1 1/2 feet This application was resisted by the tenant by tendering the rent etc., besides denying that he had impaired the value and utility of the shop in dispute It was also contended that the Respondent had not broken a part of the Chabutra in order to lower down the level of the shop in dispute. In the alternative it was alleged that the breakage, if any, is due to the routine use and is of very negligible nature and can be repaired and set right at a nominal cost of Rs. 2/- or 3/- only.

The learned Rent Controller dismissed the application of the landlord by holding that the tenant had not impaired the value and utility of the shop in dispute and that he was not in arrears of rent. Being aggrieved against the order of the Rent Controller, the landlord went in appeal before the Appellate Authority, which was also dismissed and the findings of the Rent Controller were affirmed.

I have heard the learned Counsel for the parties, besides perusing the record. In the ejectment application the landlord had alleged in para 3(b) as under:

That the Respondent damaged the roof and door of the shutter of the shop in dispute in September, 1971. A quarrel took place and on intervention of respectable persons on 25-9-1971, the Respondent gave writing that he will not in any way damage or deteriorate the shop in any manner. The Respondent has now again broken a part of the Chabutra of the shop and in order to lower down the level of the shop has materially altered and shutter of the shop by increasing it to a length of about 1 1/2 feet. The Respondent has thus materially impaired and diminished the value and the utility of the shop in dispute

While appearing as P.W. 5, Mohinder Singh landlord stated as under:

On 26-9-1971 the Respondent broke the roof of the shutter. Some persons collected and a compromise was effected. The compromise was reduced into writing which is Ex. AW3/1. It was signed by Raj Kumar and others. Thereafter the Respondent enlarged the shutter by 1 1/2 feet towards the doorside with the help of wire and Pattis in the shape of a separate joint. On account of this the door has become weak. The Respondent has also broken the Chabutra for enlarging this shutter There are cracks is the wall caused on account of breakage affected by the Respondent. The roof of the shutter has been separated by one inch from the wall. The value and utility of the shop in dispute has been impaired by these changes

The perusal of the above referred portion of the statement of the landlord reveals that he had not alleged that the tenant had damaged the floor of the shop, but his allegation pertains to the widening of the shutter or door by the act of the tenant in extending the shutter 1 1/2 feet towards the doorside with the help of wire and Pattis in the shape of a separate joint. The cracks in the wall were caused as a result of the breakage of the Chabutra end the removal of the shutter, was not specifically alleged in the ejectment petition. Under these circumstances, the only controversy between the parties whether the extending of the shutter by 1 1/2 feet towards the Chabutra in front of the door of the shop or lowering the level of the Chabutra by one foot or breaking the Chabutra under the shutter had resulted in impairing the value and utility of the shop in dispute. During cross examination, Mohinder Singh landlord admitted that the shutter was in existence when he purchased the shop dispute from Ram Kanwar of Ballabgarh and that the shutter had not been fixed by the tenant. He further stated that there are two Chhajas on the shutter, one of these Chhajas existed when the market was constructed and the second Chhaja forms the roof of the shutter and was made when the shutter was fixed He further alleged that the tenant had broken the roof of the shutter i.e. this Chhaja and that the Chhaja is now separated from the front wall of the shop. This Chhaja is made of cement Bajri and stones. The height of the Chabutra in front of the shop is 2 1/4 feet. He also started that there were two steps for approaching this shop, but the tenant had removed the one and damaged the other.

The mere glance at the photographs, Exhibits A3 and A4 of the front view of the shop, taken by Shri B.R. Bhatia, Photographer (A. W. 2), absolutely leaves no doubt that only some portion of the plaster over the pacca bricks on the frontage of the Chabutra of the shop had been admitted due to towering the base of roller shutters at this Chabutra by making a verticle space near the outer side of the door. The top layer of bricks of this Chabutra has also been dislodged. Unfortunately, there is no photograph depicting the condition of the Chhaja forming part of cover of the shutters. The report, Ex. A1 of Shri Iqbal Singh, Draftsman (A.W. 1) goes a step further than the case of the Petitioner-landlord, as it reveals the presence of cracks in the western wall under the Chhaja besides revealing that this floor of the shop was broken and covered with gunny bags. Thus, this report which goes beyond the case of the landlord also is not of much significance.

Much stress was laid down by the learned Counsel for the Petitioner on the admission of Shri Sawan Rani, R.W. 2, a retired Municipal Engineer, during cross-examination to the effect that the rolling shutter of the outer door had been extended to encroach upon some portion of the Chabutra located in front of the shop, but there is no force in this contention as the mere extension of the rolling shutter in front of the door of the shop or lowering the level of the Chabutra in that process or encroaching upon it will not result in merely impairing the value or utility of the shop in question, especially when there is not reliable evidence on the file to conclude that the floor the shop was also lowered in level.

The ratio of the decision of Division Bench of this Court in Narain Singh v. Bakson Laboratories etc. 1981 (2) R.C.R. 237, is not attracted to the facts of the case in hand, as therein the controversy related to permanent conversion of Verandah into rooms by the installation of a door by the tenant.

The ratio of the decision of a Single Judge of this Court in Amir Chand v. Sardar Arjan Singh 1987 (2) R.C.R. 518, is also of no help to the landlord in the present case, as therein the controversy related to the covering of Chabutra in front of shop by erecting tin shed and removing the original door and putting up a steel rolling shutter in front of the covered portion of the Chabatra. whereas in the present case the rolling shutters have been extended to the extent of 1 1/2 feet only and it is fitted in the original door. Moreover, it appears that the findings of Division Bench of this Court in M/s. Parkash Chand Harnam Singh v. Shri Gian Chand 1979 C.L.J. 29, were not brought to the notice of D.V. Sehgal. J., in the above referred Amir Chand''s case, as the Division Bench had held that only removing the door of the shop and fixing the same in the verandah cannot be said to have resulted in impairing the value and utility of the shop.

For the foregoing reasons, it cannot be said that the learned Rent Controller or the learned Appellate Authority had wrongly appraised the evidence of the witnesses or had come to a manifestly wrong decision regarding the facts of the case. Consequently, this revision petition fails and is hereby dismissed, but the parties are left to bear their own costs in view of the peculiar circumstances of the case.