Rajbir Marya vs Surender Kumar Kansal

Rakesh Kumar Garg, J.—This is defendant''s revision petition challenging the impugned orders dated 13.04.2010 and 25.03.2010 passed by the courts below whereby an application under Order 39 Rule 1 and 2 was allowed and the petitioner was restrained from raising any construction over the suit property during the pendency of the suit and further prayer of the petitioner was rejected whereby he sought permission to carry out the balance repair work at the suit property.

Briefly stated, as per the averments in the civil suit, the petitioner is a tenant over the suit property as per agreement dated 05.03.1992. On 20.02.2010, the petitioner illegally dismantled the toilet and bathroom situated in the suit property without the permission and approval of the respondent and made material alterations for which he had no right, title or interest. Respondent made request to the petitioner not to make material alterations but the petitioner refused to accede the request and further threatened to make partition in the suit property with intention to sublet the same. Hence the present suit for permanent injunction restraining the petitioner from raising illegal construction and further restraining him from subletting the premises to any other person, was filed by the plaintiff-respondent. Along with this suit, plaintiff-respondent filed application under Order 39 Rule 1 and 2 for grant of ad interim injunction.

Upon notice, petitioner appeared and filed written statement contesting the claim of the plaintiff-respondent raising various legal objections. On merits, the relationship between the parties was admitted but all other averments of the respondent were denied and it was contended that the entire changes being done by him cannot be construed in any manner as structural changes and the same does not amount to impairment of value and utility of the building. Dismissal of the suit was prayed for. The application for ad interim injunction filed by the plaintiff- respondent was also contested on the similar grounds.

Vide order dated 24.02.2010, the parties were directed to maintain status quo qua the construction over the suit property. Thereafter, the petitioner moved an application u/s 151 CPC seeking permission to raise further construction on the ground that toilet and water closet are basic amenities which are to be provided for use of the persons working at the business premises of the petitioner and on account of the status quo orders the doors etc.cannot be put in the toilets etc. as a result of which there was no privacy and therefore the petitioner be allowed to carry out the balance repairs by raising the partition wall of 41/2" thickness etc.

In reply to the aforesaid application, the plaintiff-respondent submitted that the toilets etc.were dismantled by the petitioner of his own and therefore he cannot be permitted to further raise any unauthorized construction and to cover his misdeeds and it was prayed that the application be dismissed.

After hearing learned Counsel for the parties, vide order dated 25.03.2010, the trial Court concluded that the plaintiff-respondent had very good prima facie case in his favour and if the petitioner is permitted to raise construction over the suit property, plaintiff-respondent would suffer substantial loss and thus balance of convenience was also in his favour. Hence, the application for ad interim injunction filed by the plaintiff-respondent was allowed and the application moved by the petitioner for allowing him to make partition wall etc.was rejected.

Not satisfied with the aforesaid order of the trial Court, the petitioner filed an appeal which was dismissed by the District Judge, Panchkula vide impugned order dated 13.04.2010.

Still not satisfied, the defendant has filed the present petition challenging the orders passed by the courts below.

Learned Counsel for the petitioner has vehemently argued that the term ''alteration'' stipulates major structural changes and does not debar the petitioner from making temporary changes in the tenanted premises suiting to his business requirements. According to the learned Counsel for the petitioner, the petitioner was making partitions by way of 41/2" brick wall which does not at all affect the structure and the same is purely temporary in nature. Moreover, the petitioner undertakes to hand over the premises to the plaintiff-respondent in the condition as it existed at the time of taking the same on rent whenever tenancy comes to an end and thus the impugned orders passed by the courts below are erroneous and are liable to be set aside.

I have heard learned Counsel for the petitioner and perused the impugned orders.

The relationship of landlord and tenant is admitted. It is significant to note that after filing of the suit, the trial Court vide order dated 22.02.2010 appointed Local Commissioner who submitted his report about the existing state of affairs at the spot which reads as follows:

When the undersigned visited the spot, the construction work in first floor of SCF No. 144, Sector-17 Panchkula was going on in full swing. In the stairs going toward the first floor of the SCF No. 114, Sector-17, Panchkula six cement bags were lying in the first floor, two masons and two helpers were doing the Chanai work and five carpenters were also doing new construction work on the spot. There were approximately 400 bricks along with cement mixture on the spot i.e.first floor of the SCF No. 144, Sector-17, Panchkula. On the spot, there was 19 numbers of ply board lying on the spot along with the Big wooden pieces for the construction of cabin. The newly under construction cabin has been marked with mark GHIJ in the site plan.

The walls as marked as ABC in the site plan were demolished/dismantled upto 10 ft.height and new wall was raised/under construction upto 4 ft.height as marked as CDEFA and two masons along with two helpers were doing the chanai work on the spot when I visited the spot. There was also a heap of 400 bricks and cement mixture on the spot and new construction work on the spot was in full swing as already mentioned above.

Old toilet walls demolished/dismantled upto 10ft.height approximately marked as ABC and toilet was being extended from point A to point F upto 1 ft and further extended from point C to point D upto 2 ft.

On the site towards SCF No. 145, Sector 17, Panchkula, the heap of sand and stack of 500 bricks approximately was lying and the same was carried by the labourers to the first floor of the SCF No. 144, Sector 17, Panchkula.

On the basis of the aforesaid report of the Local Commissioner and the photographs available on the file, the courts below came to the conclusion that extensive repairs were being carried out in the disputed premises and the petitioner had demolished the walls of old toilet. As per the arguments of the learned Counsel for the petitioner, the partition suiting to the requirements of the petitioner which was in the process was not going to affect the structural stability of the building. However, it is a matter of evidence whether the changes made by the petitioner would affect the structural stability of the building or not and whether the same are impairing the value and utility of the building or not.

Admittedly, petitioner is raising partition of 41/2" brick wall and the same cannot be termed as of temporary nature. The petitioner has not produced any such document on the file which could show that he was making the partition walls with the permission of the landlord as per the terms and conditions of the rent agreement.

In the present case, the plaintiff-respondent has specifically alleged that the petitioner has made material alterations and has impaired the value and utility of the building. Accordingly, the petitioner cannot be allowed to raise further construction and effect changes as argued by him. Moreover, the petitioner cannot be allowed to take benefit of his own fault.

Thus, keeping in view the report of the Local Commissioner as well as other material on the file such as photographs etc., no interference is called for in the impugned orders passed by the Courts below in exercise of its powers for grant of discretionary relief.

Dismissed.