Puran Chand vs Krishan Gopal

M.M. Punchhi, J

This it a petition for revision arising in a rent matter. The premises in dispute is a shop situated in the Mandi of Narwana. Ejectment therefrom was sought by Krishan Gopal landlord on the premises that Puran Chand, the tenant, was in arrears of rent and secondly that the tenant had made material alterations in the demised premises, whereby he had made himself liable for ejectment u/s 13(2)(iii) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 for short, the Act). Since the arrears of rent were paid timely before the Rent Controller, that ground did not survive The Rent Controller, however, on the second ground non-suited the landlord, but the Appellate Authority, Jind, reversed the decision of the Rent Controller which has given rite to this petition

Some of the undisputed facts which at the present stage need be focused are:

(i) The landlord owns three contiguous shops in the Mandi and the middle one is the premises in dispute. On one side is the shop tenanted with Mansa Ram Hari Chand and on the other site tenanted by Mangat Ram Om Parkash ;

(ii) The tenancy was formally written between the parties by means of document Mark ''A'' dated 1st April, 1974, creating the tenancy for one year ;

(iii) The demised premises mentioned in Mark ''A'' is the shop consisting of two pacca rooms (khans) in front of which there was a platform (Chabutra) and a covering (Chappar) ;

(iv) The shop in dispute originally belonged to Sita Ram, the father of the present landlord, and it came to the present landlord sometimes before the execution of the rent deed, and

(v) before 1st April, 1974, the Petitioner was for a number of years tenant under Sita Ram, the father of the landlord-Petitioner.

The point on which the parties are at issue can now be stated. Whereas the case of the landlord before the Rent Controller was that the tenant had converted the open tinned Chappar into a room as a result of which free passage of light and air into the demised shop had been blocked, thereby affecting materially the value and utility of the demised shop, the case of the tenant, on the other hand, was that the condition of the demised premises was the same as was rented out to him on 1st April, 1974, and that there was no material alteration in the structure. In the alternative, the case set up by the tenant that the suggested alteration was temporary and in no way affected materially the value and utility of the demised shop. These pleas wren sought to be expanded by the respective parties by means of their own statements at the trial as also by other relevant evidence. The learned Rent Controller came to the view that the alterations, if any, had taken place much earlier to the creation of the tenancy and that the landlord had failed to produce any tangible evidence from which it could be concluded that the alterations were of recent origin. The Appellate Authority, however, took the view that the alterations were made after the creation of the tenancy and this the tenant had become liable for eviction u/s 13(2)(iii) of the Act

Mr. D.S. Nehra, learned Counsel for the tenant-Petitioner, in support of his case, pointed out that the learned Appellate Authority committed a grave error in overlooking Exhibit RW 4/2 and by misreading Exhibit RW 4/1, the two documents on the basis of which it would become apparent that a stall stood constructed on the site in the shape of a room and that room made of wood and tin material was part of the demised premises. He thus contended that the view of the Appellate Authority to the contrary was based on ignoring relevant evidence. It is patent from the judgment of the Appellate Authority that he has nowhere referred to Exhibit RW/2 but there is an oblique reference to Exhibit RW 4/1 and not in the context in which Mr Nehra has put across his case These two documents had to be read in the light of the statement of Hukam Chand, Land Officer of the Municipal Committee, Narwana, in whose evidence these documents were introduced

Exhibit RW 4/1 is a copy of the report of the Land Officer Hukam Chand himself dated 9th October, 1964, wherefrom it is revealded that he prepared a report conveying to the Committee that in the Mandi some shop-keepers had in front of their shops, constructed Chappars and put up wooden planks At serial Nos. 7, 8 and 9, the names of the three tenants of the landlord are mentioned who are reported to have occupied and coveted 8'' � 9'' area each The tenant-Petitioner is at Serial No 8. Exhibit RW 4/2 is the copy of resolution No 68(XX) dated 22nd May, 1966, the original of which was called for today and has been returned It disclosed the proceedings of a meeting held by the Municipal Committee, Narwana, on 22nd May, 1966, and the matter relating to the shop of the Petitioner was taken Into account The details mentioned are that the papers of the unauthorised construction of ''Chappar'' by Puran Chand son of Chiman Lal and Muusshi Ram son of Shiva Mal, were perused, wherefrom it was revealed that both of them had been fined to the tune of Rs. 45/- each by the Court of the Magistrate 1st Class, Narwana, a their applications for settlement were considered by the Committee. The resolution passed thereon was that both the defaulters fee asked to pay Rs. 300/- each by way of settlement, as fee by way of compensation the land under the stall and for unauthorised construction of the Chappar. From these two documents, it is sought to be urged by the tenant-Petitioner that apparently there was a stall built over the municipal land and that too unauthorisedly for which composition fee had been paid by means of this resolution Exhibit RW 4/2 That the document was necessary to be adverted to is crystal clear There is some indication that there was some construction at the time when the Municipal Committee was dealing with the matter and that too way back in 1966, approximately eight years prior to the execution of the rent deed It bears repetition here that even in the rent deed Chappar is part of the demised premises. The only doubt which crops up is whether the Chappar had walls or support under breath by means of wooden planks or door/doors and what was meant by the word ''Stall'' in the resolution Exhibit RW 4/2 and the report RW 4/1 Now the evidence of Hukam Chand RW 4 was to the effect that in front of the shop of the tenant-Petitioner, there was a Chopper of tin underneath which temporary wooden planks had been fixed, which had been removed. He further states that Puran Chand had been proceeded against by the Municipality. Yet in next breath he said that there were wooden planks presently of a temporary nature but be did not know since when they were there. In cross-examination, be stated that he could not say whether these had been constructed four years ago but he was otherwise emphatic that on the both sides of the Chappar towards North and South there were wooden walls in between which there was a shutter to close down the shop.

In the same sequence is the evidence of the tenant-Petitioner who as PW 5 has stated that he had been taking this shop on rent for a number of years earlier from Sita Ram, the father of the landlord Respondent and the structure was in the condition at it was rented out to him by the father of the Respondent. Though at ore time the execution of the rent deed Mark ''A'' was disputed but it is no longer in dispute now. It is admitted that he took the shop in question on rent from the Respondent on 1st April, 1974. According to him the Chappar was then in existence when he re-took the shop from the Respondent and that underneath it he had not built any wooden walls towards the Northern and Southern sides and rather those wood plank walls had been constructed by Mansa Ram Hari Chand on the one aide and Mangat Ram Om Parkash on the other. He admitted, however, to have placed the wooden racks along side those two wooden walls which received cover of the Chappar. And further to close the enclosure of those racks he had put up a Shutter by means of iron hinges capable of being lifted down side up in order to open the shop and keep it in that position by means of a support. The case of the landlord, as said before, is that both the wooden walls as also the shutter have been constructed by the tenant after the creation as the tenancy. And these two conflicting stances need to be resolved analytically.

It is undisputed that the landlord had litigated with his tenant of the adjoining shop by the name of Mangat Ram and had similarly accused him of having caused likewise alterations to the building and materially impairing its value and utility. The specific plea is embodied in judgment Exhibit RX. The allegation has been summarised in paragraph 11 of the judgment to mean that an open shed had been converted into a room by fixing wooden planks on the Northern and Southern sides as also fixing wooden planks as walls of the room It is undisputed that the case of the landlord was ultimately successful and he won upto the Supreme Court. Thus, from this factor we have a starting point. It stood established that tenant Mangat Ram was rightly accused of having fixed wooden planks to serve as a wall under the Chappar and had converted it into a room. If there was a wooden wall built by Mangat Ram on the Petitioner''s side and he stood punished thereby by being evicted, the point to be seen is whether there is a second wooden wall along side the wall afore-referred to or was that the very same wall which was serving as a partition between the shop of Mangat Ram and that of the Petitioner. Additionally, it was to be seen whether the landlord has in his petition for eviction or even in his evidence later made mention of this fact. The petition is significantly silent on this aspect. In the evidence of the landlord as AW 3 all what is mentioned is that the tenant has raised a wooden wall on both sides which is suggestive of the side of Mangat Ram. He never said that the wooden wall suggested constructed by the tenant-Petitioner was different than the wooden wall which was constructed by Mangat Ram. It on the face of it appears ridiculous that on the same side two sets of wooden planks would be used to effect a partition between the two property users. The existence of a common wooden wall appears more plausible. It equally appears plausible that when one adjoining owner constructs a wooden wall, the other makes use of it for the enclosure it naturally makes Here, the evidence of the Petitioner is significant that he had not constructed any wall on the site but had rather placed wooden racks along side the wooden wall constructed by Mangat Ram and same was his case with regard to the wall constructed by Munshi Ram. It has also been stated at the Bar that so far the landlord has not filed any petition against Munshi Ram for his alleged construction of the wooden wall. Thus, it seems to me that the landlord deliberately concealed material particulars from the Court and tried to mislead it towards believing that the tenant Petitioner was responsible far constructing wooden walls underneath his Chappar., Rather from the statement of the tenant-Petitioner it appears to me certain that no walls were constructed by the tenant, but he has only placed along side wooden racks in a systematic manner to serve as a wall. These by the very nature of placement are temporary in character and cannot be said to have materially impaired the value or utility of the demised premises by the use to which they are put, especially when the roof over those rakes is a part of the demised structure. The obstruction to the light or air which may have occasioned due to the construction of the two wooden walls afore-referred to were not on account of any acts of the tenant-Petitioner but were acts of others, to which he cannot be said to be responsible. Whatever light and air stood obstructed was in no way aggravated by the placement of his wooden racks along side the two wooden walls of his neighbors. Thus, on this particular, the case of the landlord does not appear to me truthful and accepting the word of the tenant in that regard, I would venture to reverse the finding.

Next it has to be seen whether the fixture of a lift door would amount to an act which would materially impair the value or utility of the building In the circumstances of the present case, I an of the considered view that it would not. It is well known that a shop or a commercial establishment in a market is governed by the Shops and Commercial Establishments Act, whereunder specific hours are to be observed for opening any shops or commercial establishment. It means that the opening and closure of the shops are regulated by law and shops cannot remain open all the 24 hours The very use of the building for business purpose is restricted in time To put it differently, the shutters of the shop have to be closed, whereby the building of the shop has to be deprived of the light and air otherwise coming. I fail to see when the shop cannot be kept open all the 24 hours, how could lack of air and light by the closure of the shutter affect its value and utility and that too even materially. It is and spited that when the shop is opened the shutter is lifted up causing inlet of the requisite air and light As is plain from report Exhibit RW 3/2 the lifted door is kept open in the day by means of a bamboo placed thereunder and remain down at night From such user it cannot be concluded that it is such an act which would attract the provisions of Section 13(2)(iii) of the Act Thus, it is held that the tenant''s act of providing the door in the present set of circumstances would not be an impairment of the value or utility of the demised premises and rather would be more towards beneficial use thereof. The error committed by the Appellate Authority in that regard is rectified.

Thus, for the foregoing reasons, this petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller restored, dismissed the eviction petition In the circumstances of the case, there shall be no order as to costs.