Roshan Lal vs Dharam Pal

J.V. Gupta, J.—This order will dispose of Civil Revisions No. 3639 of 1983 and 441 of 1984, as both of them arise out of the same judgment of the Appellate Authority, Ludhiana, dated 21st September, 1981.

This it tenant''s petition again whom order of eviction has been passed by both the authorities below. The ejectment of Roshan Lal tenant is being sought from one room in house No. B. 1V-740 Wait Ganj, Ludhiana The said room was rented out to the tenant vide rent-note dated 25th February 1959, Exhibit A-3, at a monthly rent of Rs. 50/-. The tenancy started from Ist March, 1959. The application for ejectment was filed on 16th December, 1977, on the following grounds:

(i) That the landlord bonafide requires the premises for his own use and occupation.

(ii) That the building has become unfit and unsafe for human habitation.

(iii) That the tenant has materially impaired the value and utility of the demised premises by constructing Parchhatis therein.

(iv) That there was change of user as the premises were let out for residence, whereas the tenant was carrying on business therein.

The allegations made in the ejectment application were controverter on behalf of the tenant in the written statement. On trial the learned Rent Controller found that the room in dispute was rented out for residential purposes; that the tenant has changed its user from residence to business; that the landlord bonafide require the premises for his own use and occupation. The plea of the landlord that the building has become unfit and unsafe for human habitation was negative. In view of these findings, eviction order was passed. In appeal the learned Appellate Authority reversed the finding of the Rent Controller on the ground of change of User and that the landlord bonafide require the premises for his own use and occupation. However, it maintained the finding of the Rent Controller on the question that the tenant had materially impaired the value and utility of the demised premises. In view of this finding the eviction order passed by the Rent Controller was maintained. Dissatisfied with the same, the tenant has filed this revision petition in this Court. The other Revision petition No. 441 of 1984 has been filed on behalf of the landlord by virtue of which be is contesting the finding of the Appellate Authority on the other two grounds which were found in his favour by the Rent Controller.

Learned Counsel for the tenant-Petitioner contended that even if it be assumed that the three Parchhatis were constructed by the tenant after the premises were let out to him. even then there Was no finding on the record that the construction of the said Parchhatis has materially impaired the value and utility of the demised premises. According to the Learned Counsel the expert evidence of AW3, Sat Dev, produced by the landlord, the weight of 5 to 7 Lbs. has been placed en the waits because of these Parchhatis and if it is so then it cannot be held that it has materially impaired the value and utility of the demised premises. In support of this contention he relied on Gobind Ram v. Shrimati Kaushalya Rani 1981 (2) R.C.R. 621. On the other hand Learned Counsel for the landlord submitted that on the appreciation of the entire evidence it has been concurrently found by both the Courts below that by constructing the three Parchhatis the value and utility of the building has been materially impaired and is support of his contention he referred to Om Parkash v. Shri Anand Swamp (1980) 82 P.L.R. (S.N.) 11. Further it has been urged that it being a finding of fact cannot be interfered with in revisional jurisdiction. It was further argued that according to the plea of the tenant the said Parchhatis were in existence when the premises were let out to him, whereas it has been found that it was the tenant who consruc-ted the Parchhatis and, therefore, a false plea was taken by the tenant.

After hearing Learned Counsel for the parties on this question and going through the relevant evidence on the record I find that there is no cogent evidence that as to how the construction of three Parchhatis in the demised premises has materially impaired the value and utility of the building. In the ejectment application, the allegation was made in para 3 (c), which reads as under:-

That the Respondent has constructed three Parchhatis in the room without the written permission of the Petitioner. That the Parchhatis constructed have increased the weight on the walls and have materially impaired the value and utility of the property.

In the written statement in reply to this para it was stated that it is wrong that there are three Parchhatis and the question of the permission of the Petitioner does not arise, there is no question that the Parchhatis have impaired the value and utility of the building. In the replication filed on behalf of the landlord it was stated that by constructing these Parchhatis the tenant increased the weight over the walls and thereby has materially impaired the value and utility of the property. The learned Rent Controller on this issue came to the conclusion that the tenant had constructed three Parchhatis in the premises in dispute without the written permission of the landlord, which has materially impaired the value and utility of the premises in dispute No finding as such was given as to in what manner it has materially impaired the value and utility of the premises in dispute. As a matter of fact since the landlord had taken another ground also that the building had become unsafe and unfit for human habitation, this issue was confused by the Rent Controller though that plea of the landlord was negative. In appeal the learned Appellate Authority considered this matter and observed:-

Whether extensive repairs would be required for removing the damage caused or whether minor repairs would be required for removing the damage, to my mind could be of no consequence far determining the result of this issue. The damage to the building is there, whether it is extensive or minor, to my mind, would not effect the liability incurred by the tenant on account of the construction of the Parchhatis. The trial Court has rightly come to the conclusion that the Parchhatis have been constructed after the inception of the tenancy and they were not in existence in 1959. The value and utility of the property has evidently been effected x x x x x x x.

Thus the view taken seems to be that the mere construction of the Parchhatis has materially impaired the value and utility of the building. This approach of the authorities below is wholly wrong, illegal and misconceived. Admittedly the tenant is carrying on hosiery business in the demised premises and the Parchhatis have been constructed by him for storing the hosiery goods. Thus the construction of the Parchhatis was necessary in his business for which the premises were let out to him. The landlord could only succeed if it can be proved by cogent evidence that the construction of the said Parchhatis has materially impaired" the value and utility of the demised premises, for which there is no cogent evidence on the record Even the expert produced by the landlord Shri Sat Dev Gupta retired Executive Engineer, AW 5, deposed that a weight of about five to seven pounds have been placed on the walls because of these Parchhatis. In his statement he has no where stated that in what manner the construction of these Parchhatis has materially impaired the utility of the building. In the absence of any such evidence no finding could be given that the mere construction of the Parchhatis has materially impaired the value and utility of the building. As a matter of fact it will be a question of fact in each case whether the alleged construction or alteration made by the tenant has impaired materially the value and utility of the demised premises or not. In order to reach that conclusion there must be some cogent evidence on the record that in what manner the alleged construction or alteration has impaired the value and utility of the property. In the judgment relied upon by the Learned Counsel for the landlord Om Parkash''s case (supra), it was found as a fact in that case that the construction made was not a minor alteration, but a substantial structural change in the demised premises which was likely to impair the value and utility of the building. So it has no applicability to the facts of the present case. Moreover, it should not be simply impairing the value and utility, which is decisive of the issue, but it should be materially impairing the value and utility of the building which has to be proved, in order to succeed in ejectment. Therefore, it was for the landlord to prove that in what manner the construct ion of the Parchhatis have materially impaired the value and the utility of the demised premises In the application for ejectment no allegation was made to that effect It was only when the replication was filed that it was stated that by construction of the Parchhatis some weight has been put on the walls. Of course when the Parchhatis are constructed and holes were made in the walls, some weight must have been put thereon, but the landlord should have further proved that the said burden had materially impaired the value or utility of the building, which, in the present case the landlord had failed to prove by any cogent evidence. Thus the finding of the authorities below in this regard that the tenant has materially impaired the value and utility of the building by constructing three Parchhatis is wrong, illegal, as the same is not based on any cogent evidence.

Faced with this situation the Learned Counsel for the landlord contended that the demised premises consist of one room only and it was rented out for residential purposes According to the Learned Counsel it was evident from the rent note. Exhibit A-3, also. Admittedly now the tenant was carrying on the business of hosiery therein, therefore, he has changed its user and was liable to eject-meat. I do not find any merit in this contention. The learned Appellate Authority has discussed the entire evidence on this issue and has given a firm finding that:

To my mind the documents already referred to by me plus the statements of Shekhar Chand and Rattan Chand conclusively prove the case of the tenant that the premises in dispute were being used as shop right since the beginning of the tenancy.

I do pot find any impropriety or illegality in the said finding. It is in the evidence of the tenant that he is residing in a separate building allotted to him in the year 1947. There is no evidence whatsoever that he ever lived in the room in dispute. Moreover, even from the terms of the rent note it cannot be spelled out that it was given for residential purposes. This is the common case of the parties that the said room opens in the Bazar. Not only that there are three rooms on the ground floor of the said residential building. The three rooms were let out by the landlord as shops from the very beginning. The room in dispute is being used as such, even prior to the present tenant Roshan Lal. Earlier the landlord himself was using the same as a shop. Apart from that it is a single room without any other facility of the kitchen, bath room, or the lavatory. In the circumstances it cannot be successfully argued that the same was let out for residential purposes. In any case, as observed earlier, the J learned Appellate Authority has discussed the entire evidence and given a firm finding in this behalf and I do not find any infirmity therein.

It was next argued an behalf of the landlord that even if it be assumed that the said room was let out as a shop for business even then it being the part of a residential building, the landlord was entitled to seek ejectment of his tenant on the ground of bonafide requirement. In support of this contention he referred to an unreported judgment rendered by me in C.R. No. 742 of 1982 Sh. Chanan Singh v. Smt Shanti Devi and others C.R. 742 of 1982, decided on 9th July, 1984.

I do not find any force in this contention either. It is true that on the first and second floor of the building the landlord himself is residing, but at the same time as regards the ground floor consisting of three rooms, the same were let out for business purposes and these shops open in the Bazar. In these circumstances it cannot be successfully argued that the building as a whole was residential one. It is a building the ground floor of which is being used for business, purposes, whereas the first floor and second floor are being used for residential purposes. If this is so then the landlord was not entitled to seek ejectment of his tenant from the room in dispute, which has been found to have been let out for business purposes. The judgment relied upon by the Learned Counsel is not applicable to the facts of the present case. Therein it was found as a fact by both the authorities, that the rooms were rented Out for residential purposes, besides that the tenant had failed to prove that he was residing somewhere else and that the demised premises were being used exclusively for his business. Apart from that, it was clearly stated in the rent note that the premises were given on rent for residence whereas in the present case these facts are not proved.

It was then contended that the building has become unsafe and unfit for human habitation and the finding of the Rent Controller in this behalf was wrong. However, the landlord was not allowed to challenge the said finding before the Appellate Authority and I do not find any ground to interfere with the same in revisional jurisdiction. In any case the landlord will be at liberty to seek the ejectment of this tenant if he can prove in subsequent litigation that the, building has become unsafe and unfit for human habitation after the present ejectment application in the year 1977.

In this view of the matter Revision Petition No 2639 of 1983 succeeds and is allowed with costs. The eviction order passed by the authorities below are set aside and the ejectment application is dismissed. Consequently Civil Revision No. 441 of 1984 stands dismissed.