Siri Krishan Dev vs Jhabu Ram

D.K. Mahajan, J.—This petition for revision is directed against the order of the Appellate Authority, reversing, on appeal, the decision of the Rent Controller ordering the ejectment of the tenant u/s 13(2)(iii) of the East Punjab Urban Rent Restriction Act.

On facts, there is no dispute. Under a Rent Note dated the 29th of March, 1956, the building as set out in the plan, Exhibit P.I, was rented out to the tenant by the landlord. It was stipulated in the Rent Note that the tenant will not do anything to the building which will not be acceptable to the landlord. At the time, when the building was rented out, it consisted of a Verandah, a Kotha and a Court-yard. The Kotha had no opening into the Verandah, but opened into the Court-yard; it had also two openings towards the North. The Court-yard had doors, opening into it, both from South and West. The Verandah also had an opening from the North and was accessible from the Court-yard. The tenant demolished a part of the building; and the building, as it now stands, is denoted on the plan, Exhibit ''PY''. The length of the Verandah has been reduced; and the part of the length, that has been reduced, has been included in the Kotha. The Kotha has been converted into a garage. The openings of the Kotha on the North have been closed. Its opening into the Court-yard has also been closed. It now opens into the Verandah. In front of the Verandah, which is left after this alteration, a Tin Shed has been put up thereby reducing the width of the Court-yard as well. The entrance to the Court-yard from the South has also been closed. The correctness of these plans is not disputed by either party.

The short question, that fell for determination before the Rant Controller as well as the Appellate Authority, was, whether these alterations impaired materially the value or utility of the building? The plea of the landlord was that the building had been deliberately pulled down to alter it; whereas that of the tenant was that part of the building had fallen on account of rains. The Rent Controller found that there was no truth in the plea of the tenant that the building had fallen by rain and that, in fact, the building had been pulled down to alter it. This finding was maintained by the Appellate Authority. On the question, whether the utility of the building had been impaired, the Rent Controller found that the utility had been impaired: and, therefore, ordered eviction. This finding has been reversed by the Appellate Authority. It appears that the Appellate Authority was totally oblivious to the requirements of law and its judgment cannot be sustained. The impairment or utility has to be examined from the point of view of the owner and not from the point of view of the tenant. The building, as it now stands, is totally different from the building that was rented out; and this state of affairs has come about by the act of the tenant. No tenant is permitted to do this under the law. No authority has been cited before me which shows that any material alteration to the building is not covered by Clause (iii), Sub-section (2) of Section 13 of the East Punjab Urban Rent Restriction Act. The cases cited at the bar are only those where there was only an inconsequential alteration and that too not to the main building: and for instance in one case, a communicating door was opened between two rooms. In the present case, on the facts, as they stand out from the evidence, it is absolutely clear that the alterations are of a far-reaching nature and have completely altered the nature of the building. I am, therefore, clearly of the view that the Rent Controller was right in holding that the present case was covered by Clause (iii), Sub-section (2) of Section 13 and the Appellate Authority has completely gone wrong in reversing its decision.

Mr. N.C. Jain, learned Counsel for the Respondent, raised the contention that a notice u/s 106 of the Transfer of Property Act was not issued. No such objection was taken at the trial. It may very well have been that there was such a notice. But as the matter was not raised and not tried, the learned Counsel cannot be permitted to raise this plea at the revisional stage.

For the reasons recorded above, I allow this petition; quash the order of the Appellate Authority and restore that of the Rent Controller. The Petitioner will have his costs in this Court.