Smt. Nirmala vs Ishwar Chander

Gokal Chand Mittal, J.—The father-in-law of Smt. Nirmala had let out the premises in dispute to Ishwar Chand as a tenant. On the death of her father-in-law, Smt. Nirmala became the landlord. She filed a petition for ejectment against the tenant on 18th October, 1972, on three grounds, namely (i) of being in arrears of rent from 1st November, 1971 onwards at the rate of Rs. 15/- per mensem; (ii) the tenant having installed heavy machinery in the premises which was causing damage to the premises and (iii) of making material alterations in the premises which were of far-reaching nature having materially impaired the value and utility of the premises let. The material alterations were specified in the petition as follows:-

(i) the premises consisted of one room with a small door and open place in front of it;

(ii) the respondent has totally removed the front wall and extended the room to the edge of the road and the front side now under room has been kept open and some sort of a gate has been put there.

The petition was opposed by the tenant. The ground of ejectment on account of arrears of rent was given up as arrears of rent alongwith interest, etc., were tendered on the first date of hearing. As regards the allegation of damaging the building on account of installation of heavy machinery, it was pleaded that the respondent is running a workshop from the very begining and the building was taken for that very purpose from the original landlord. As regards the third ground, it was stated that the premises were in the same condition as were at the time of taking on rent. It was denied that any alteration had been made since he took the premises on rent from its previous owner.

On the contest of the parties, the following issues were framed:-

What is the effect of not mentioning the cause of action, Court-fee and jurisdiction in this application? OPR

What is the effect of non-verification of this application? OPR.

Whether the respondent has installed heavy machinery after taking on rent of the demised premises and its effect? OPA.

Whether the respondent has effected material alterations in the premises and has materially impaired its utility and its effect? OPA.

Whether the notice served on the respondent is not legal? OPR.

5A. Whether the applicant is estopped from filing the application by her acts and conduct? OPP.

Relief.

After the parties led evidence, the Rent Controller, by judgment dated 30th September, 1975, came to the conclusion under issues Nos. 3 and 4 that the tenant had installed heavy machinery which was likely to damage the premises and that the tenant had made material alterations in the premises which impaired its value and utility. Consequently, an order of ejectment was passed against the tenant who went in appeal before the Appellate Authority, Kapurthala, who by judgment dated 29th November, 1976, upset the decision of the Rent Controller and dismissed the ejectment petition. The land lord has come up in revision in this Court.

Shri Lalit Mohan Suri, appearing for the petitioner, has urged that the third ground of ejectment was fully borne out and the Appellate Authority seriously erred in law in misreading the ejectment petition and in observing in para 11 of the judgment as follows:-

It was nowhere stated in the application that there was an open site in front of the built shop. The description of the premises in the application indicated that the premises in dispute were only a built shop and nothing more.

A persual of the ejectment application, which has been quoted in-extenso in the opening part of the judgment would show that it was specifically mentioned therein that the premises consisted of one room with a small door and open space in front of it and that the room had been extended upto the edge of the road, the result of which was that even the open space was converted into a room by the tenant. Therefore, it is clear that the Appellate Authority proceeded to decide this case on wrong premises which resulted into an erroneous decision.

The Rent Controller, believed the statements of AWs 1 to 3 and 5 when they stated that the front portion of the shop was an open space which was also converted into a room and the door which was fixed in the original premises was removed therefrom and a new door was put on the newly built portion right on the street and held that impairment and utility of a building had to be examined from the point of view of the owner and not from that of the tenant and viewing the evidence from that angle, it was concluded that the tenant had materially impaired the value and utility of the building. The Rent Controller had followed a decision of this Court in Siri Krishan Dev v. Jhabu Ram (1969) 71 P.L.R. 38. On facts the Appellate Authority also came to the following conclusion:-

The applicant and her witnesses had stated the original old construction had been materially improved upon so that a new gate had been constructed and some kacha wall had been made into pucca wall besides some open site being added to the built portion.

So, there is no quarrel on facts. The obvious facts are that the tenant removed the door of the shop, raised construction in the front open portion and converted the old building and the open space into one big hall and put a new gate on the front. The question which is to be determined now is whether a tenant can be permitted to tinker with the building let out to him or he is authorised only to use the premises as it is. It is true that the building was a very old one as it has come into the statement of AW1 that Nanakshahi (small) bricks were used in the building and now the tenant, who is doing business in the premises, has made a pucca construction not only on the existing portion of the building but also on the portion which was unbuilt. One tenant may improve the value of the building while another may materially impair its value. The provision of law under which the matter has to be looked into is section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949, which reads as follows:-

13(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied-

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(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land or

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the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application;

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A reading of the aforesaid provision would show that if a tenant commits such acts as are likely to impair materially either the value or utility of the building then he would be liable to be ejected. May be that by such acts the value of the building has gone up but so far as utility is concerned, it has to be seen from the view point of the owner of the premises and not of the tenant. If the owner wanted the front portion of the premises to remain open and did not raise any construction thereon, the tenant cannot be allowed to change the nature of the premises-and the moment he makes the changes the utility of the building is certainly impaired from the view-point of the landlord because there is no open space which he had left out in front of the building. This matter has been calling the attention of this Court even on earlier occasions and it was decided in Siri Krishan Dev v. Jhabu Ram (1969) 71 P.L.R. 38 (Supra) and Banarsi Dass v. Sunder Dass (1969)71 P.L.R. 59, that a tenant cannot make any alterations in the building even if the value of the same is enhanced because that would certainly effect the utility of the building. Agreeing with the aforesaid decisions, I am of the view that the tenant had no authority to cover the front open space and convert the entire building into one hall which may be of more utility to him but certainly not to the landlord.

In Civil Revision No. 1247 of 1970 Raj Kumar v. Ram Kunwar C.R. 1247 of 1971 decided on 17th December, 1971, by Gurdev Singh, J., it was held that the covering of the open platform in front of the shop by raising side walls and by putting a tin-sheet roof by the tenant amounts to an act which was likely to impair materially the value and utility of the premises. Again in Nirmala Devi Kapoor v. Kartar Singh (1972) 74 P.L.R. 28 N.C.R. No. 8 of 1972, decided on 5th September, 1972, by D.K. Mahajan, J.) it was held as follows:-

Held, that a lot of literature has grown around the construction of the provisions of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act. The broad outlines which can be gathered from the reading of the case law on the subject are that if the alterations are of a vital character which change the nature of the building, the case will fall within the ambit of the said provision But if the alterations are of a minor character, and have been made by the tenant for his comfortable living, in that case, they do not fall within the mischief of the said provision. In every case the Authority has to determine what are the alterations and whether they are of a material character and are likely to impair the value or utility of the building. The shortening of the gate of the building can in certain circumstances be said to have impaired the utility of the building and may even be said to have materially affected its value. The addition of a room would in certain circumstances also affect the utility of value of the building. For instance, if the original premises are constructed for a single story, a room above the building would naturally impair its value and utility in as much as the construction of a room will make the building unsafe for human habitation, because the weight put on the foundations would be in excess of for which they were laid. Moreover, the tenant has to restore the premises to the landlord in the same conditions in which he took them from him, excepting of course for the normal weare and tear. If the tenant demolishes the room, in the process of demolition, it is likely that other parts of the building may be damaged. In that case, the construction of a room on the first floor would certainly impair the utility of the building. In each case, it has to be determined whether the additions and alterations have materially altered the building. One thing is clear that if the alterations change the nature of the building, the decisions are unanimous that it would impair the value as well as the utility of the building.

Therefore, it is to be seen whether the premises as let out have remained into existence as they were and that just for comfortable or proper use thereof some minor alterations have been made. On the facts of this case, the answer is ''no''. On the other hand, what has been found is that the main gate of the building has been removed, the open space which was lying in front has been covered and a totally new construction has come into being which never existed before. In fact, the original building has ceased to exist and that by itself would be a ground to order the ejectment, as was done by Mehar Singh C.J., in Banarsi Dass v. Sunder Dass''s case (1969)71 P.L.R. 59 (Supra). Therefore viewing the case from any angle, it is clearly borne out that the tenant has materially impaired the utility of the building so far as the landlord is concerned. Accordingly, the finding of law to the contrary recorded by the Appellate Authority is reversed and that of the Rent Controller is restored.

As regards the second ground of ejectment, that the tenant has installed heavy machinery, it would have been of substance, if the original building had existed and it could be found whether by the use of the machinery the building was damaged to such an extent that its value had been materially affected or was likely to be affected and an order of ejectment could be passed. As already observed, the tenant has completely changed the building and there is no evidence on the record that the building as present stands would in any way be affected by the machinery which is being run by the tenant. Accordingly, there is no ground of ejectment proved under the second point urged in the ejectment petition.

For the reasons recorded above, this revision petition is allowed, the order of the Appellate Authority is set aside and the ejectment order passed by the Rent Controller is restored. However, the tenant is allowed three months'' time to vacate the premises subject to the condition that all arrears of rent at the rate of Rs. 15/- per mensem are deposited with the Rent Controller alongwith three months'' advance rent within a period of one month from today. In case, the aforesaid amount is not deposited within the time allowed the landlord would be entitled to execute the ejectment order forthwith thereafter. In case, the deposit is made the amount be paid to the landlord without prejudice to her rights to execute the ejectment order. The parties are left to bear their own costs.