Udhav Das and Others vs Smt. Asha Rani and Others

Mohammad Rafiq, J.—This is defendants'' appeal against the judgment and decree dated 28.8.1993 passed by the Additional District Judge No. 1, Bharatpur, who thereby allowed the appeal filed by the plaintiff-respondents and reversed the judgment and decree passed by the Munsif and Judicial Magistrate, Bharatpur dated 30.11.1985. The Munsif and Judicial Magistrate, Bharatpur had by aforesaid judgment and decree dismissed the suit for eviction filed by the plaintiff-respondents. Originally the suit was filed by Mahesh Chand, the husband of respondent No. 1 herein and the father of respondent Nos. 2 to 4, claiming arrears of rent and seeking eviction of the defendant-Dariyanmal, who too died during the pendency of the suit. Thus both the plaintiff and defendant were substituted by their legal representatives. Eviction of the defendants was sought on the ground of default in the payment of rent, material alteration of the premises and nuisance on 24.11.1980.

It was averred in the plaint that the disputed premises was let out to the defendant on monthly rent of Rs. 90 for residential purpose in the year 1978. The defendant started using the premises as a factory for manufacture/preparation of ''bidis''. He for that purpose constructed 3-4 furnaces in the Chowk. These furnaces used to emit smoke, as a result of which the paint of whole house turned black. The furnaces caused immense pollution. Besides, the defendant had constructed two walls in the size of 37''x10'' and erected a tin shed in the middle chawk, which covered 3/4th of the open space. It has completely defaced the house and has materially altered the same. As a result of the material alteration made by the defendant in the house, it now became unfit for residence. The defendant had even replaced the main door and blocked the entry of the plaintiff into the house due to which he cannot have access towards the northern side so as to reach roof of the house and also cannot use the room situated on the northwestern side of the house. The defendant has closed down the door of the ''kothari'', which opens towards the "poli". The defendant has failed to pay rent for last more than six months despite request of the plaintiff-respondents. The plaintiff served a notice on the defendant on 10.10.1980 through his advocate which he received on 11.10.1980. In the notice, the plaintiff demanded rent from 1978 to 31.10.1980 and called upon him to vacate the house.

The defendant in the written statement denied the allegations in the plaint. It was averred that initially the disputed premises was taken on rent of Rs. 70 per month and rent note was executed in favour of tenant. All brothers of the landlord used to receive the rent and issued receipts. The rate of rent was increased to Rs. 85 thereafter and subsequently to Rs. 90 per month. Premises was used for storage of tobacco and production of ''bidis''. The disputed premises have been used as a ''bidi'' factory since inception of the tenancy. Tenant himself filed a map before the Superintendent, Central Excise under the provisions of Excise Act and Rules admitting that it was used as factory for producing ''bidis''. The fact that it was being used as a ''bidi'' factory since 1973 was in the full knowledge of the landlord. Even if the premises were meant for residential purpose, but used for commercial purpose, the landlord never objected to the same. That implies that he has consented to such use. The alleged ''bhattis'' (furnaces) were already constructed in the premises. The smoke coming out of the furnaces did not cause any blackening of the disputed premises. Adequate arrangements were made for safe emission of the smoke. No substantial damage has been caused to the premises. The landlord was not in possession of any part of premises, therefore, there was no question of blocking his entry. The tin shed was erected for the purpose of safety of goods from rain and sunlight. It was a temporary structure, which was raised over the chowk with the consent of the landlord much prior to 1973. Tenant did not make any material alteration in the premises. This temporary structure can be easily removed in a short time without much labour. It was denied that any default was committed by the defendant. Disputed premises were taken on rent by the firm M/s. Dariyan Mal Gopal Das and receipt of the rent was also issued in the name of said firm, but the suit has been filed only against Dariyan Mal. Thus, the suit is liable to be rejected for want of misjoinder of necessary party.

The learned trial court on the basis of pleadings of the parties framed the following issues:

Whether the disputed house belongs to the plaintiff and he is its landlord?

Whether the property described in para No. 2 of the plaint was given on monthly rent of Rs. 90?

Whether the defendant spoiled the house by generating smoke?

Whether the defendant made material alteration by constructing a tin shed with walls as described in para No. 3 of the plaint, without the consent of plaintiff?

Whether the defendant is a defaulter by not paying the rent from 1.9.1978?

Whether notice was given in a valid way?

Whether the suit is not maintainable by not impleading M/s. Darya Mal Gopal Das as party?

Whether suit is not maintainable in view of para no. 8 of the written statement?

Whether defendant gave an advance of Rs. 1170/- on 4.8.1976?

Whether defendant is entitled for a sum of Rs. 300 as compensation?

Reliefs?

The trial court dismissed the suit by judgment dated 30.11.1985, which judgment has been reversed by the learned first appellate court, decreeing the suit. The defendant-appellants have filed the present second appeal against the judgment of the appellate court. This appeal was admitted for hearing on the following substantial questions of law:

Whether the first appellate Court is correct in reversing Issue No. 3 without being reached to the conclusion that the plaintiff-landlord has sought eviction on the ground of Clause (b) or Clause (d) of sub-section (1) of Section 13 of the Act, 1950?

Whether in absence of any pleadings or proof of full causing substantial demand to the premises, a decree under Clause (b) of Section 13(1) of the Act can be passed?

Whether in absence of any findings of nuisance or the inconsistent use of the premises affected its suitability and adversely affected interest of landlord, a decree on the ground contained in Clause (d) of sub-section (1) of Section 13 of the Act, 1950 can be passed?

Shri J.P. Goyal, learned Senior Advocate for the appellant has argued that the findings recorded by the learned first appellate court are perverse and erroneous and contrary to material on record as also settled law. The first appellate court has erred in law in reversing the finding on Issue No. 3 regarding nuisance. In the first place, the finding itself was not specific and was vague. Merely because some smoke was emitting from the furnace, it did not amount to nuisance and did not cause any damage to the premises. There was neither any adequate pleading, nor proof to substantiate this. Besides, the learned trial court has failed to record a categorical finding whether it was a finding of substantial damage to premises under clause (b) of sub-section (1) of Section 13 of the Rent Control Act, 1950 or material alteration of the premises under clause (c) or nuisance under clause (d) thereof. The learned Senior Advocate submitted that unless the Court comes to a specific conclusion as to on which ground it intended to pass a decree of eviction, no such decree may be passed. It is contended that the first appellate court has made out an entire different case, which was neither pleaded, nor proved by evidence. The first appellate court has at one place dealt with Issue no. 3 with reference to clause (b) of Section 13 and on the other hand, it has granted decree as if eviction was sought under clause (d) of Section 13. If the case of the plaintiff is accepted under clause (b), then there was no finding by the trial court that the plaintiff has caused substantial damage to the premises. If it is under clause (d), then there is no question of nuisance created to the landlord because the landlord himself is not residing in the premises. No neighbour has been produced to prove such nuisance. Moreover, the premises were taken for commercial purpose since the inception and therefore it cannot be held that the defendant started using the premises for the purpose inconsistent with the original purpose for which it was let out. The learned first appellate court had therefore erred in recording a finding that the premises were used for the purpose other than for which it was let out and that it was let out for residential purpose and was converted to use for commercial purpose. There is no such ground for eviction pleaded in the plaint. Disputed premises were used by the defendant for collection of tobacco and preparation of ''bidis'' as ''bidi'' factory since the inception of tenancy. There was no proof that the premises were let out only for residential purpose. No such mention was made in the rent note. If the premises were used as ''bidi'' factory prior to 1973, it gave rise to presumption in favour of the defendant that it must have been let out for commercial purpose. Even if not, consent of the landlord should be presumed as it was being used for commercial purpose. Moreover, when the landlord did not raise any objection, this would amount to waiver on his part.

Shri J.P. Goyal, learned Senior Advocate submitted that learned appellate court has erred in law in reversing the finding on Issue No. 4 relating to material alteration against the appellant only because the appellant had put a tin shed on the small wall raised in the chowk. This would not amount to raising permanent structure or making material alteration. The shed was of temporary nature and could be removed at any time without much labour. The learned first appellate court could not without the specific finding that alteration was made with the permission of landlord held that this amounted to material alteration and had the effect of diminishing the value of the premises. Learned Senior Advocate relied on the judgment of the Supreme Court in Om Prakash Vs. Amar Singh and Others, and argued that the Supreme Court in that case held that the words "materially" or "altered" used in the expression "materially alteration" means a substantial change in the character, form and the structure of the building without destroying its identity, which means that the nature and character of the change or alteration of the building must be of essential and important nature. The learned first appellate court erred in law in reversing the finding of the learned trial court on Issue No. 7 on the question of non-impleadment of the firm M/s. Dariyan Mal Gopal Das. There was no justification for the first appellate court to hold so when the said firm, though necessary party, was not impleaded as party. The plaintiff in his statement before the trial court admitted execution of two rent notes dated 16.12.1970 and 1977, but he did not even produce any one of them. It cannot, therefore, be accepted that the premises were let out for residential purposes.

Per contra, Shri Anil Upman, learned counsel for the respondents at the outset submitted that the plaintiff appellants have themselves stopped using the disputed premises since long because it is a very old building with regard to which number of notices have been served on the defendant-landlord by the Municipal Board to the effect that it was in a dilapidated condition and it can fall any day. It is highly unsafe, it may be therefore demolished or else action shall be initiated against the landlord. On merits, learned counsel submitted that there was no necessity in law that when a suit is decreed on more number of grounds than one, then the Court should specifically record findings with reference to provisions of the Act on each of the grounds. The first appellate court has made detailed analysis of the law and recorded issue wise findings namely; on Issue No. 3 relating to nuisance and Issue No. 4 relating to material alteration, which have been discussed in detail. Issue No. 3 was to the effect whether the defendant by his act of emitting smoke in the house has not damaged the premises in question? The issue is broadly worded. It can cover both clauses (b) and (d), supra. Issue No. 4 was specifically with regard to material alteration. Besides, the learned counsel argued that when the parties knew their case, no prejudice was caused even if the issue was not rightly worded. It is contended that the disputed premises were let out to the appellant nearly 40 years ago and for last many years, they are not being used by the appellants, therefore, also no interference ought to be made. Learned counsel submitted that no interference ever otherwise is justified even on the substantial questions of law framed by this Court. It is therefore prayed that the appeal be dismissed.

I have given my anxious consideration to the rival submissions and perused the material on record.

As far as default is concerned, it was first default, therefore, the learned trial court has granted benefit of Section 13(3) for waiver of default on his depositing the entire due rent in the Court. That issue was upheld by the learned appellate court, therefore, interference on that count is unwarranted.

The first substantial question of this appeal is whether the first appellate court was justified in reversing the finding of the trial court on Issue No. 3, which pertain to eviction sought by the plaintiff on the grounds in clauses (b) & (d) of Section 13. Clause (b) inter alia provides that eviction can be ordered if the tenant has willfully caused or permitted to be caused, substantial damage to the premises, whereas clause (d) inter alia provides that the eviction can be ordered if the tenant has created a nuisance or has done any act, which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord''s interest therein. As far as trial court is concerned, it did not find the issue proved, but the lower appellate court has reversed the finding of the trial court. In doing so, the lower appellate court has discussed the evidence about digging and construction of furnace in the house, emission of the smoke from such furnaces and the damage to the house by such smoke. The assertion of the defendant was that no such damage was caused to the house by these furnaces and that these furnaces were already existing when the house was let out. The trial court however held that since the landlord himself is not residing in the premises, there was no question of any nuisance being caused to him on account of the emission of the smoke from the furnaces. Even if it could cause any nuisance to any neighbour, no such neighbour has been produced as witness to prove so. Therefore, the issue cannot be taken to have been proved. Besides, the evidence of the plaintiff suggested that the defendant was using these furnaces for last five years and if the plaintiff has delayed filing of the suit by five years, that shows his implied consent and waiver. The first appellate court however has reversed those findings. In doing so, it has also noted the statement of PW-1 Mahesh Chand, who admitted that they initially resided in the tenanted premises for first four years of tenancy and thereafter constructed a house in the vicinity. The first appellate court has also on the basis of the evidence held that if the premises were originally let out for residential purpose and defendant later started using it for commercial purpose, which was proved from statement of PW-1 Mahesh Chand, the evidence has proved that the house was being now used as a ''bidi'' factory. The finding on Issue No. 3 thus overlapped both in respect of clause (b) and clause (d) on the basis of damage to premises by emission of smoke from the furnaces, but that finding was reached by the learned first appellate court not merely on the basis of emission of smoke from the premises, but also simultaneously while recording finding on Issue No. 4 relating to material alteration. Therefore, the finding on material alterations by the learned trial court, was reversed by the learned first appellate court.

Regarding Issue No. 4 framed with regard to material alteration, the learned trial court noted that two walls were constructed on which a tin shed was erected by the defendant in the chowk, but the learned trial court took the view that it was a temporary arrangement made for effective use of the premises as a factory and to save the raw material from rain and also from sun light. This has not in any way diminished the value of the house and did not amount to material alteration. The first appellate court has however cumulatively considered all the three clauses namely (b), (c) and (d) of Section 13(1) of the Rajasthan Rent Control Act, 1950. While the learned first appellate court has observed that the size of the tin shed was as big as 10'' x 37.5'' and covered almost the entire chowk of the premises whereas the trial court did not notice the size and the extent of the area covered by it. The learned appellate court has noted that after such a big tin shed, remaining open land remain only 10'' x 10''. The fact that the defendant admitted that they started using the house for the residential purpose for first four years and then constructed their own house in the vicinity, clearly prove that the premises were originally let out for residential purpose. If that was so, the appellate court was justified in holding that the tin shed was constructed without the permission of the landlord. This is so because no such permission has been proved by the defendant. There cannot be a case of implied permission or waiver in such a situation. Thus, the first appellate court rightly observed that this has the effect of materially altering the premises by changing its shape. The evidence categorically proves that the defendant was now using this premises as ''bidi'' factory and in that connection constructed as many as four furnaces, which furnaces used to generate the heat and smoke.

Mere non-production of rent note cannot prejudice the case of the plaintiff because the defendant himself as PW-1 Mahesh Chand has admitted in his statement that the house was used for residential purpose initially for four years and thereafter they shifted to their newly constructed house in the vicinity which clearly proves that the house was let out for residential purpose.

On facts therefore the evidence proved that all the three grounds namely; (i) that the tenant caused substantial damage to the premises, (ii) further that the tenant without the permission of landlord made such construction which has materially altered the premises and was likely to diminish its value and (iii) that the tenant created nuisance and has done such act which is inconsistent with the purpose for which it was let out, which is likely to adversely and substantially affect the landlord''s interest therein. If the eviction is sought on number of grounds, it is indeed not necessary for a Court to record its finding with reference to each of the provisions separately in a case like the present one, where the facts may overlap proving more than one ground contained in the Act. The judgments cited by the learned counsel for the appellants are distinguishable on facts, hence not applicable to the present case. In that view of the matter, the appeal fails and is dismissed. There shall be no order as to costs.