JUDGMENT
V.S. Aggarwal, J.
1. The present revision petition has been filed by. Radha Krishan, hereinafter described as “the petitioner” directed against the order of the learned Rent Controller, Ludhiana, dated 11.4.1980 and of the learned Appellate Authority, Ludhiana, dated 3.12.1981. By virtue of the impugned order, the learned Rent Controller had passed the order of eviction against the petitioner which was upheld by the Appellate Authority.
2. The relevant facts are that the petitioner is a tenant in the suit premises. The respondent preferred an eviction application against the petitioner. The sole surviving ground which requires consideration is that it was asserted that the petitioner without the consent of the respondent had constructed a parchhati which has damaged the walls of the shop and materially impaired the value and utility of the same. The petition for eviction has been contested. It was denied that the petitioner had set up any parchhati. The case set up by the petitioner was that the shop is in the same condition in which it was let out. The petitioner had fixed the furniture in the shop for proper use and enjoyment of the property. No additions or alterations have been made. A carpenter is only working to replace the furniture.
3. The learned Rent Controller framed the issues, and with respect to the controversy about setting up of the parchhati it was held that parchhati had been set up which has materially impaired the value and utility of the premises. An order of eviction was passed.
4. Aggrieved by the same, an appeal was filed. The learned Appellate Authority scanned through the evidence and accepted the reasoning of the learned Rent Controller. It was held that the parchhati had materially impaired the value and utility of the premises. Aggrieved by the order dismissing the appeal, present revision petition has been preferred.
5. Learned counsel for the petitioner at the outset assailed the order passed by the learned Rent Controller and of the Appellate Authority to contend that they were wrong in recording that there was no denial in the pleadings of the petitioner regarding setting up of parchhati. To this extent, the contention is correct. A perusal of the written statement reveals that in the written statement the contention of the respondent-landlord regarding setting up of parchhati had been denied. It was not even a denial for want of knowledge. Therefore, the inference in this regard about there being absence of specific denial is not correct.
6. There are concurrent findings of fact arrived at by the learned Rent Controller and the learned Appellate Authority about the parchhati having been set up by the petitioner without the consent of the respondent-landlord. The said findings are based on evidence. They are not erroneous. The facts have been appreciated. Thus, this Court will not interfere in this regard.
7. Confronted with this position, learned counsel for the petitioner vehemently contended that, in any case, setting up of such like temporary wooden structure does not impair the value and utility of the premises. According to him, only some wooden planks had been fixed to keep the articles for sale and it cannot be termed that it will cause damage and impair the value and utility of the premises. Reliance in this regard has been placed by the learned counsel on various precedents.
8. This Court in the case of Siri Krishan Dev v. Jhabu Ram, (1969)71 P.L.R. 39, while dealing with Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949, held that impairment of value and utility of the building has to be examined from the point in view of the landlord and not from the point of view of the tenant. Same view had been taken up by the Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand and Ors., (1993-2)104 P.L.R. 349 (S.C.). Once again the Supreme Court held that impairment of the value or utility of the building is to be visualised by the Authority from the point of view of the landlord only.
9. With this backdrop, one can conveniently refer to the precedents relied upon by the learned counsel for the petitioner to contend that setting up of this type of parchhati does not impair the value and utility of the premises.
10. In the case of Roshan Lal v. Dharam Pal, (1985-1)87 P.L.R. 130, the landlord was seeking eviction of the tenant on the ground that there is impairment in the value and utility of the property. A parchhati was set up for carrying on hosiery business, Goods were being stored therein. It was held that it was for the landlord to see as how the parchhati has materially affected the value and utility of the premises, The Court concluded as under: –
“….. As matter of fact it will be a question of fact in each case whether the alleged construction or alteration made by the tenant has impaired materially the value and utility of the demised premises or not. In order to reach that conclusion there matt be some cogent evidence on the record that in what manner the alleged construction or alteration has impaired the value and utility of the property. In the judgment relied upon by the learned counsel for the landlord Om Parkash’s case (supra), it was found as a fact in that case that the construction made was not a minor alteration, but a substantial structural change in the demised premises which was likely to impair the value and utility of the building. So it has no applicability to the facts of the present case. Moreover, it should not be simply impairing the value and utility, which is decisive of the issue, but it should be materially impairing the value and utility of the building which has to be proved, in order to succeed in ejectment. Therefore, it was for the landlord to prove that in what manner the construction of the Parchhati have materially impaired the value and the utility of the demised premises.”
11. Supreme Court in the case of Om Pal v. Anand Swarup (dead by LRs.), (1988-2)94 P.L.R. 699 (S.C.) had also considered the same question. Herein, the parchhati was set up by the tenant. He was running a Dry Cleaning Laundry business. The parchhati has been made to rest on the walls by means of wooden balas. The balas were inserted in the wall through holes made therein. Supreme Court held that every construction made by the tenant would not materially impair the value and utility of the premises. In paragraph 9 of the judgment, the Supreme Court held as under:-
“In the light of these decisions, if we examine the present case we find that the Rent Controller and the Appellate Authority as well as the High Court have obviously failed to construe Section 13(2) (iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant. As has been repeatedly pointed out in several decisions, it is not every construction or alteration that would result in material Impairment to the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. It was pointed out in Om Parkash v. Amur Singh, (1987)1 S.C.C. 458 at 463, that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for tenant’s eviction and hence it had taken care to use the word “materially altered the accommodation” and as such the construction of a chabutra, almirah, opening of widow or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. It would, therefore, follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.”
12. This Court more recently in the case of Ranbir Bhatia v. Kashmiri Lal, (1993-2)104 P.L.R. 365, again dealt with the same controversy and held that setting up of the parchhati did not materially impair the value and utility of the property. Herein, parchhati had been set up but digging was only 1 inch deep.
13. A perusal of the aforesaid precedents clearly show that each case has to be examined on its own facts. It has to be seen as to whether the value and utility of the property is materially affected or not. The expression “materially affected” is significant. It certainly conveys that though the whole matter is to be examined from the point of view of the landlord but still the Controller has to apply his mind and visualise if the change that has been made materially affects the value and utility of the property or not. A structure which is temporary in nature cannot be termed to be one which materially affects the value and utility of the property.
14. The shop in question is triangular in shape. It is the case of the respondent that one parchhati was constructed before the filing of the application for ejectment and two parchhatis were set up after the institution of the application. The petitioner had examined Babu Ram Gupta, RW1, to contend that the value and utility of the property has not materially been affected. The report submitted by the witness is totally vague. It was rightly rejected. During the course of his employment, he has never been working as an expert. He admitted that there were three parchhatis in the shop in question. He had not seen the wall of the shop from the other side. He admitted that one wall is only 4.1/2″ wide and added that it can stand light weight. This precisely was the case of the respondent-landlord. A Local Commissioner had been appointed by the learned Rent Controller in other proceedings. He had proved his report which is Exhibit A-5. The Local Commissioner found that there was a parchhati in the premises and he also found that wooden planks were lying there. The witness produced by the landlord-respondent further showed that one parchhati had been set up by fixing a beam. It is in evidence that one of the wall is only 4.1/2″ wide. Plan Exhibit A-12 of the said property reveals that there is a steel girder fixed to withstand the said parchhati.
15. It is obvious from the above said that the facts of the present case would reveal that the parchhati is not of a temporary nature or that it is only fixed on wooden beams. It is of a permanent nature and keeping in view that one of the walls is only 4.1/2″ wide and it has been recorded in evidence that beams were protruding from the other side of the wall, the learned Rent Controller and the learned Appellate Authority rightly recorded that the value and utility of the property is being impaired. There is thus no ground to interfere in the impugned order.
16. For these reasons, the revision petition being without merit must fail and is accordingly dismissed. The petitioner is granted three months time to vacate the demised premises.