Walaiti Ram vs Sohan Lal

J.V. Gupta, J.—This is landlord''s petition in whose favour the eviction order was passed by the Rent Controller but was set aside in appeal.

The landlord Walaiti Ram sought the ejectment of his tenant Sohan Lal respondent from the shop in dispute which was leased out on monthly rent of Rs. 35/- on 16th October, 1966 wide rent note Exhibit VI. The ejectment was sought on the ground that the tenant has materially impaired the value and utility of the shop in dispute. It was alleged that one hand-pump was installed in the premises which was removed by the tenant and sold away. There was one wall dividing the premises into two portions of equal length and that wall was removed from that place and was constructed at a different place whereby the length of the front portion of the shop increased and that of the back portion was decreased. It was also alleged that one electric motor of 7 5 H. P, was installed in the premises and the tenant got that electric connection disconnected and altered the electric connection from 3 phase to 1 phase. The tenant also constructed a Chhappar on the platform in front of the shop. On these allegations, it was pleaded that the tenant had made material alterations in the demised premises. In the written statement, the tenant controverted the said allegations and pleaded that he had not altered the premises in any manner. The learned Rent Controller found that the tenant had materially altered the premises as he has clearly violated the terms of the rent note and has altered not only the sizes of the rooms rented out of him by the landlord without the letter''s consent but the tenant also got the electric connection for 7.5 H.P motor disconnected in clear violation of the terms of the rente not and without the consent of the landlord. Thus, according to the learned Rent Controller, it is clearly established that the tenant had materially impaired the value and utility of the premises in dispute. Consequently, the eviction order was passed. In appeal, the learned Appellate Authority reversed the said finding of the trial Court. It was found that from the evidence it is made out that the tenant had not constructed any Chhapper in front of the shop and the Chhapper, if any, was in existence when the shop was leased out. It was further found that it was proved that the tenant removed the intervening wall and constructed it at a different place whereby the length of the front portion of the shop was increased. But this by itself does not amount to alteration which materially impairs the value and utility of the building. The learned Appellate Authority also observed that there is no evidence on the record to show that the intervening wall was supporting the roof and its removal had rendered the premises as dangerous. In view of these findings, the eviction order was set aside. Dissatisfied with the same, the landlord has filed this petition in this Court.

The learned counsel for the petitioner contended that having found that the original wall was removed by the tenant and was constructed at a diffierent place, it could not be held that it had not materially impaired the value and utility of the demised premises. According to the learned counsel, the removal of the wall clearly proves that the tenant has materially impaired the value of the demised premises. In support of his contention, he referred to Smt. Kalawati Devi (deceased) widow of Jawala Parshad v. Nemi, Chand 1985 (1) R.C.R. 38, Naiha Singh v. Harbans Singh 1980 R.C.J. 666 and Rajagopaliah Setty, V.R. v. N. Radhakrishna 1983 (2) R.C.R. 469. Reference was also made to Om Parkash and another v. Sarup Singh (1981) 83 P.L.R. 407, to contend that even if no specific plea was taken in the ejectment application in this behalf even then the eviction order could be passed, if there was evidence on the record to prove the same. On the other hand, the learned counsel for the tenant submitted that the landlord failed to allege that in what manner the tenant has impaired the value and utility of the demised premises by constructing the wall at some other place by removing the original. Since no such allegations were made in the application, the tenant could not lead any evidence to show that even if it was so found it did not materially impair the value and utility of the demised premises. In support of this contention, by analogy, he refers to the judgment of this Court in Banke Ram v. Smt Sarasti Devi (1977) P.L.R. 112. It was next contended that in any case on the appreciation of the evidence a firm finding has been given by the Appellate Authority that the removal of the said wall did not impair the value and utility of the demised premises and it being a finding of fact could not be interferred with in revisional jurisdiction. It was submitted that the removal of the wall as such did not impair the value and utility and in support of this contention, reference was made to M/s Ram Dhan Das Ramji Das Sethi, Ferozepur City v. Shri Desh Bandhu 1985 (1) R.C.R. 520 and M/s Parkash Chand Harnam Singh v. Shri Gian Chand 1979 (1) R.C.J. 1.

I have heard the learned counsel for the parties and have also gone through the pleadings and the case law cited at the Bar. The only allegation in the ejectment application a as that by removing the intervening wall etc, the tenant has made material alteration for which he has no right. No such allegation was made as to in what manner the said alteration had impaired the value and utility of the demised premises. The learned Appellate Authority after discussing the entire evidence observed that only the landlord stated that the shop had been rendered useless, but there was no evidence on the record to show that the intervening wall was supporting the roof and its removal had renderd the primises as dangerous. It was further observed that the tenant had merely removed the intervening wall and had constructed it at a different place. The demolition of a wall does not amount to alteration which materially impairs the value and utility of the building. It is a finding of fact based on the appreciation of evidence. Unless the landlord proves that the wall which was removed was supporting the roof and because of its removal it has damaged the building in any manner, it could not be successfully argued that its removal had impaired the value or utility of the shop in dispute. It will be a question of fact in each case as to whether a particular act or alteration made by the tenant has materially impaired the value and utility of the demised premises or not. On the facts of the present case, it could not be successfully argued that the mere removal of the intervening wall has impaired the value and utility, unless it was further proved that in what manner it has endangered the building. No cogent evidence has been led by the landlord in this behalf except a bald statement that the shop had been rendered useless. In some what similar case reported in M/s Ram Dhan Dass Ramji Dass Sethi, Ferozepur City''s case (supra) it was held by me that since the wall was only 7/8 feet above the ground and was not up to the roof level it was for the landlord to prove as to in what manner the removal thereof has impaired the value and utility of the building for which no evidence was led on behalf of the landlord. Similarly, in the present case there is nothing on the recored to prove as observed by the Appellate Authority as well, that the intervening wall was supporting the roof and its removal has rendered the premises as dangerous In the absence of any such allegation or proof it could not be successfully argued that the mere removal of the intervening wall has materially impaired the value and utility of the demised premises. The authorities relied upon by the learned counsel for the petitioner are clearly distinguishable and are not applicable to the facts of the present case. The nearest case to the facts of the present case is reported in Rajagopaliah Setty''s case (supra). The head note A is somewhat misleading. In that case the learned district Judge reversed the finding of the trial Court and came to the conclusion that it was not proved that the tenant had demolished the previous existing wall or put up a new wall The High Court agreed with the bald proposition laid by the District Judge that the demolition of the existing wall or putting up a new one in another place would amount to material alteration but on facts as noticed above the position was different. Moreover, whether the removal of a wall amounts to materially impairing the value or utility of the demise premises or not is a different matter. The question to be decided under the Rent Restriction Act is as to whether an alteration is of such a nature which is likely to impair the value or utility of the demised premises. Such was not a question before the Karnataka High Court. The landlord in order to eject the tenant on this ground is required to prove that the tenant has committed such acts as are likely to impair the value or utility of the building or rented land. The mere removal of the wall by the tenant by itself not be sufficient to hold that it has materially impaired the value and utility of the shop in dispute unless it was further proved by cogent evidence that the said wall was supporting the roof and its removal has endangered the building in any manner. Such an evidence is lacking in the present case. Thus I do not find any illegality or impropriety in the findings of the Appellate Authority as to be interfered with in revisional jurisdiction. Consequently, the petition fails and is dismissed with no order as to costs.