The Hosiery Industry Federation, (Regd.) Ludhiana vs Shri Ram Maini

D.V. Sehgal, J.—Ram Rakha Maini landlord-Respondent is himself now residing in S vedan. Earlier he was residing in Narobi (Kenya), He let out one residential Kothi No. B1 1190, situated on Sat Sang Ghar Road, Ludhiana, to the Hosiery Industry Federation (Registered), Ludhiana, tenant-Petitioner with effect from 1.11.1963. The premises was apparently let out for nonresidential purpose through a rent note dated 8.11.1963 Exhibit P1. He filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) on 15.6.1982, for ejectment of the Petitioner pleading various grounds. We are however, concerned with the surviving ground pleaded in para 3(c) of the application, which is to the following effect:-

That the Respondent has, by his various acts impaired the value and utility of the demised premises materially. The Respondent has illegally removed the intervening wall of the front rooms and had also removed the enterance wooden gate and installed an iron gate of a large size by demolishing the walls. The Respondent has also constructed urinals, water tank and sewerage tank in the premises without the consent of the Respondent. All these constructions are pucca constructions. The entire outlook of the property has been changed. With the removal of the intervening wall of the front rooms, the entire load of the roof has come on the other wall with the result that the other walls have become weak and are not in a position to stand the load of the roof. The aforesaid acts of the Respondent has materially impaired the value and utility of the building.

In its written statement, the Petitioner denied the above ground of ejectment and replied thus:-

Para 3(c) of the petition is wrong and as such denied. It is denied that the Respondent has done any act by which he has impaired the value and utility of the tenancy premises materially. It is denied that the Respondent has illegally removed the intervenning wall of the front room that they have removed the enterance gate and installed an iron gate of a large size by demolishing the wall. It is also denied that the Respondents have constructed urinals, water tank and sewarage tank in the property in dispute or that all the constructions are pucca one. Rest of the para is denied. The property in dispute is in the same condition as it was at the time of of inception of the tenancy. No act of material impairment has ever been done by the Respondent in the property in dispute. No pucca additions and alterations have been done by the Respondent in the property in dispute.

After receiving evidence of the parties, the learned Rent Controller, who tried the application u/s 13 of the Act, negatived all other grounds of ejectment pleaded therein except the one mentioned above. He held that some of the material alterations made in the premises by the Respondent though proved do not attract its eviction for the reason that these were carried out either with the consent of the Respondent or he acquiesced in the same. These alterations are removal of the wooden gate and installation of an iron gate in its place, construction of urinals, water tank and sewerage tank. For reaching at this finding, the learned Rent Controller, referred to a chain of correspondence through letters exchanged between the parties which were adduced in evidence Since however, the fact of these alterations as also the finding that these were carried by the Petitioner either with the consent of the Respondent or that he had acquiesced in them have not been challenged before me, it is not necessary to make elaborate reference to the same over again. The learned Rent Controller, however, held that two material alterations made by the Petitioner were without the consent of the Respondent. It had removed the intervening wall between the two front rooms and to check the roof of these rooms from falling down an R. C. C. beam has been laid underneath the ceiling at the place where originally the load of the roof was borne by the wall which stands removed. The Petitioner has also constructed a room by erecting walls, fixing door and window as also providing a service window by covering a part of the inner verandah at its end. He held that both these structural alterations arc such acts as are likely to impair materially the value and utility of the building in dispute and come within the mischief of Clause (iii) of Section 13(2) of the Act. These facts having thus been established the learned Rent Controller ordered the ejectment of the Petitioner from the premises in dispute vide his order dated 10.1.1985. An appeal filed by the Petitioner u/s 15(2) of the Act before the learned Appellate Authority failed. The finding recorded by the Rent Controller, were affirmed and the order of ejectment passed by him was upheld. This is how, the Petitioner has approached this Court by filing the present revision petition.

I have heard the learned Counsel for the parties. I have also gone through the pleadings as also the evidence adduced by them before the learned Rent Controller.

It is necessary to give a back drop of certain facts so as to appreciate the points of controversy agitated before me It is proved on record that before constructing the premises in dispute, the Respondent had got sanctioned a plan from the Municipal Corporation, Ludhiana Copy of this sanctioned site plan is Exhibit P/2 on the record. The premises was let out by him to the Petitioner vide rent note Exhibit P/1, wherein the construction existing therein at the time of their letting out had been set out in detail. The premises consisted of seven rooms, seven out houses, Verandah, Deodi, two staircases and a court-yard. The Respondent himself being a non-residential Indian living in Swedan, appointed Shri Om Parkash as his attorney vide a general power of attoney dated 22.11.1980 Exhibit A.W. 6/1. which is a duly registered document. It was through Shri Om Parkash attorney that the instant application for ejectment of the Petitioner was filed by the Respondent. The application was accompained by a plan Exhibit AW6/2. According to the statement of Shri Om Parkash attorney while appearing as A. W. 6, this plan was got prepared by him from a Draftsman who did not inspect the premises before its preparation but he prepared the same on the instructions of the attorney. The plan Exhibit A.W.6/2 except for some minor violations is similar to the sanctioned site plan Exhibit P/2. It, no doubt, shows that the wall which intervened between the two front rooms which are described as shops is no longer there. The place where the wall existed is shown by dots. Neither in the site plan Exhibit AW6/2 nor in the application did the attorney make any mention of the fact that the Petitioner had also constructed a room at the end of the verandah at the place which is now marked as ''N'' in the said the plan.

Thus, in the background of the above facts, the learned Counsel for the Petitioner raised two contentions before me, firstly, he submitted that there was no wall intervening between the two front rooms described as shops right from the inception of the tenancy. No doubt in the sanctioned plan Exhibit P/2, this intervening wall is shown but the possibility cannot be ruled out that while raising the construction, the landlord-Respondent placed an R C. C. beam to support the roof in its middle instead of erecting a wall so as to construct a big hall 12''x24'' instead of erecting two shops of equal size of 12''x 12''. He further submits that even if such a wall was in existence, its removal by the Petitioners and giving support to the roof by erecting an R. C. C. beam instead does not amount to material alteration because a wall of this type can be reconstructed at any time. He further pointed out from the cross-examination of Shri Satdev Gupta, A. W. 5, an expert witness produced by the Respondent, that the said wall was only 4 1/2" thick and at best it was serving the purpose of a pardah wall only and could not be said to be giving any support to the roof over it.

The second submission of the learned Counsel for the Petitioner is that there is no averment made in the application that any room at point ''N'' shown in the plan Exh. AW6/2 at the end of the inner verandah has been constructed by the Petitioner. Since there is no foundation laid down for such or allegation in the application, no amount of evidence at the subsequent stage can be taken into consideration He submitted that the Petitioner had no opportunity to categorically state its case that the room in the verandah at place marked ''N'' was already in existence and was not constructed by it. He submits that even according to A. W. 4 Banwari Lal apertures including doors, windows are of the same size and of the same quality as those of the rest of the building originally constructed. Therefore, the allegation that this room was constructed at a later stage by the Petitioner of its own is without any basis. He further pointed out that if the alleged two shops in the front of the building are counted as one room since there is no intervening wall in existence and the room at mark ''N'' now shown in the plan Exhibit AW6/2 is also taken into account, the number of rooms in the building is seven as mentioned in the rent note Exhibit P/l. He, therefore, submits that the Court below were wrong in holding that this room was constructed by the Petitioner and it amounts to an act which has impaired materially the value and utility of the building.

I have considered the above submissions and have also taken into account the arguments of the learned Counsel for the Respondent to meet with the above contentions of the learned for the Petitioner. I am of the view that the findings returned by the learned authorities below are unexceptionable and have to be affirmed. My reasons for the same follow.

The letters exchanged between the parties which have been placed on the record, without dispute, make no mention of the removal of the wall intervening between two rooms in front described as shops in the plans Exhibits P 2 and AW6/1. It was specifically pleaded in the application that the said wall has been removed by the Petitioner without the consent of the landlord as a result of which the load of the roof has gone on the other walls which has resulted in the weakening of the structure. The reply of the Petitioner, no doubt, is in the negative but it is in the form of bare denial. All that has been stated is that the building is in the same condition as it was when it was let out to the Petitioner. The Petitioner has made no structural alterations in the same. Even construction of water tank, sewerage tank, urinals and installation of Iron Gate were denied however, it is not disputed that it is clearly borne out from the documentary evidence on the record that these latter constructions were carried out by the Petitioner. No doubt, it has been found by the authorities below that the same were constructed either with the consent of the Respondent or he acquiesced in them. All the same these latter constructions have been proved. Thus, the blatant denial on the part of the Respondent even with regard to these constructions clearly shows that it did put forward its defence candidly and concealed material facts. It is in the statement of Shri Satdev Gupta A.W.5 that all the walls of the building are constructed with bricks and mud morter and these have been cement plastered on the surface. Since plan Exhibit P2 shows that the two rooms in front of the building constructed by the Respondent were meant to be used as shops, both of them are of equal size measuring 12'' x 12'' each. Both of them open on the main Sat Sang Ghar road and had wide doors 8'' x7'' each. There is no opening in the rear walls of these two shops and these are not connected with the rest of the building. Thus, the intention of the Respondent was to let out these two shops and to drive income from the same. He was to use the re*t of the building for residential purposes as is clear from its construction. With the nature of the material used in the walls, that is bricks and mud mortar, it is difficult to believe that the Respondent constructed ore big hall in front instead of constructing two shops as shown in the sanctioned plan. The two doors, one meant for the two shops are still in existence. It is thus clear that the alteration has been made at some subsequent stage by the Petitioner. It removed the intervening wall and with a view to give support to the roof above it, an R. C. C. beam was placed The contention of the learned Counsel for the Petitioner that the wall in dispute was at the most a pardah wall cannot prevail. The thickness of the intervening two wall was the same as that between the two rooms on their rear. It is abundantly clear from the plan Exhibit P2. In fact the size of the two rooms in the rear and two shops in front is 12'' x 12'' each. It has been stated by A.W 5 that the thickness of the walls in the building which are at present in existence is 13 1/2" or 9". No doubt there is a sentence in his cross-examination that the intervening wall between the two shops which has been removed was thick. This part of his statement has rightly not been given any weight by the authorities below. If the thickness of the wall which was removed was 4 1/2 only, the sizes of the shops in front ought to have been more than that of the rooms in the rear which is not the" position shown either in the plan Exhibit P2 Plan Exhibit A.W.6/2 or the plan prepared by Shri Satdev Gupta A W.5 which has been proved as Exhibit A W 5/2 and Exhibit R/1. Even the plan prepared by the expert produced by the Petitioner namely Bodh Raj Dhal, retired S.D.O. R.W.2, which has been proved on the record as Exhibit R9 shows the same position Om Parkash A W.6 had cleared the confusion if any in this regard by his statement in cross-examination that the intervening wall in dispute was 13 1/2" thick."

The contention of the learned Counsel for the Petitioner that in any case, no damage has been caused to the building by removal of the intervening wall of the two front shops does not carry conviction. The roof above the two shops decidedly lost solid support in the middle by removal of this intervening wall. No doubt, the Respondent has laid an R. C C. beam to support the roof in the middle, but as deposed by Shri Satdev Gupta A. W. 5, this support is insufficient and is not a good substitute for the wall that has been removed. He pointed out that by inspection of the terrace on the roof, it has been found that there is a crack across the roof at the place under which the intervening wall originally existed There is another aspect of the matter which is to be taken into account and, that is that, according to Clause (iii) of Section 13(2) of the Act, any act of the tenant which impairs materially even the utility of the building attracts his eviction. It cannot be gain said that by converting the two shops in front of the building into one big hall, the utility of the same from the point of view of the landlord has been decidedly impaired materially. The big hall may be of particular use to the Petitioner as tenant of the building but so far as the landlord-Respondent is concerned, he had constructed two separate shops to be let out for commercial purposes to tenants. This would have enabled him to derive more rental income from the shops than he would be able to get by letting out the one big hall to one tenant. The change has further drastically altered the frontage of the building. Therefore, removal of the intervening wall considered from any angle, comes within the mischief of Clause (iii) of Section 13(2) of the Act.

Now coming to the dispute regarding construction of the room at the end of the inner verandah at place mark ''N'' shown in the plan Exhibit A W 6/2, there is no doubt that no mention of the same was made in the application nor was this room shown in the said plan which accompanied the application. It is however, to be noted that the application was filed by the Respondent through his attorney who was appointed by him on December 22, 1980, vide general power of attorney Exhibit A. W. 6/1. The said attorney appearing as A. W 6 has candidly stated that the said plan was not prepared by the Drafts man after inspecting the building. He rather prepared it at the instructions of the attorney. The evidence on the record shows that the existence of this room came to the knowledge of the attorney and the expert A. W. 5 Satdev Gupta when the latter visited the building and inspected the same after securing orders of the Rent Controller. The changes made by construction of the room at point marked ''N'' can be well appreciated when the plans Exhibit P2 and A. W. 6/2 on the one hand and the plan prepared by the expert Exhibit A. W. 5/1, are compared. 4'' x4'' wide window which originally existed in the room adjoining the verandah at point ''N'' has been closed and in its place small service window has been provided. Just near the door of this room, a wall has been constructed so as to create the room marked ''N'' shown in the plan Exhibit A. W 6/2 and particularly described by the building expert in the plan prepared vide Exhibit A. W. 5/2. The contention of the learned Counsel for the Petitioner that since no specific mention of construction of this room was made in the application, the Petitioner stands deprived of the opportunity to defend itself looses significance for the reason that the Petitioner became conscious of the case with regard to room ''N'' set up by the Respondent, directed cross-examination of the expert as also the attorney of the Respondent on this aspect and produced its own expert and other witnesses. Its defence is that of bare denial. As already noticed above, even before me, the learned Counsel for the Petitioner tried to count room ''N'' as amongst the seven rooms mentioned in the rent note Exhibit P/l.

Each case has to be decided on its own facts and it is on the basis of the peculiar facts of a particular case that it has to be decided whether or not the structural alterations made in the building come within the mischief of Clause (iii) of Section 13 (?) of the Act Since however, the learned Counsel for the parties have placed reliance on some judgments in fairmness to them, I find it necessary to make a brief reference to the same. The learned Counsel for the Petitioner relied on Walaiti Ram (Sangrur) v. Sohan Lal (1985) 88 P. L. R. 480. It was held in that case that removal of a wall dividing the premises into two portions is no ground to prove that it has materially impaired the value or utility of the building unless its removal is proved to have endangered the building in any manner. This case is clearly distinguishable for the reason that it was found as a fact that the removal of the wall did not endanger the building. It was also not proved that its removal had impaired materially the utility of the building. In Natha Singh (deceased) represented through L Rs v. Harbans Singh 1980 (1) R. L. R. 337., it was held that any alteration in the building which would impair the value as well as its utility, would attract the provisions of Clause (iii) of Section 13(2) of the Act Where the construction already existing was demolished and some temporary structures were raised it amounted to material impairment of the value and utility of the building. In Chatar Sain v. Bishan Lal (1976) 78 P. L. R, 174., it was held that where a verandah was altered into a room and included in the shop it constituted structural alteration and also impaired the utility of the building for shop is more useful with a verandah than the one without it. In Kartar Singh v. Kesar Singh (1979) 81 P. L. R. 750. the tenant had removed one of the walls to convert the two shops into one. He also removed the door intervening between the two shops and included the verandah in the shop. It was held to be a material alterations within the meaning of Clause (iii) of Section 13(2) of the Act and the tenant was held to be liable for ejectment. In Sarpat Singh v. Smt. Kans Rani ., it was held that where the tenant removed the intervening walls of two rooms, without the consent of the landlord, it was an act materially impairing the value and utility of the building. The eviction of the tenant ordered on this ground was upheld. The learned Counsel for the Petitioner invited my attention to an order dated 11.8.1986, passed by the Supreme Court in M/S Suman Light Hosiery v. Jaswant Singh, C. M. Petition No. 10927/86 (In C A. No. 3150/85), which is to the following effect:-

We direct that the landlord will appear before the Rent Controller after due notice to the tenant and specify the precise construction which are to be removed After such specification the tenant shall remove such construction within six weeks thereafter. C M. P. is disposed of accordingly.

He contended on the strength of the above dictum of the final Court that I should direct the Petitioner to reconstruct the intervening wall between the two front rooms described as soops in the demised building and should also direct removal of the structure which has converted a part of the interior verandah of the building into room ''N'' as shown in the plans Exhibits A. W. 6/2 and A W. 5/2. He submits that on the Petitioner''s complying with this direction, the grievance of the landlord Respondent shall be removed and the ground for eviction shall be rendered non-existent. It is not clear in what particular facts and circumstances, the above order was passed by the final Court. However in the present case, I do not think that a similar direction would remove the grievance of the Respondent. The removal of the intervening wall between the two shops in front of the building has already impaired materially the structure. A crack has developed in the roof which is visible from the terrace. The crack is at the same place underneath which the dividing well originally stood. The burden of the roof which has passed on to the other walls also must have led to cause damage as opined by A. W. 5 Shri Sat Dev Gupta. Reconstruction of the wall, therefore, would not remedy the mischief already done. Likewise the removal of the structure which has converted part of the verandah into room ''N'' would also not restore the position, for the simple reason that the window of the adjacent room was removed. Most of the place in the wall which was covered by this aperture has been converted into a wall and only a small opening is left for the purpose of a service window. In the given circumstances, I desist from issuing a direction similar to the one issued by the final Court to which reference has been made by the learned Counsel for the Petitioner.

In view of the above discussion, I find no force in this revision petition which is consequently dismissed The parties are however, left to bear their own costs. At the request of the learned Counsel for the Petitioner however, it is allowed three months time to vacate the building in dispute on the condition that it deposits the entire amount of arrears of rent along with future rent for three months within one month from today in the Court of Rent Controller to be paid to the Respondent. On its failure to comply with this condition, the Respondent shall be entitled to take out the execution of the eviction order and recover possession of the building forthwith.