JUDGMENT
H.S. Bhalla, J.
1. Having lost battle concurrently before the courts below the petitioner-tenant knocked the door of this Court by filing the instant revision petition praying for acceptance of the revision petitioner and setting aside the orders passed by them whereby the petitioner was granted two months time to vacate the demised premises.
2. The facts required to be noticed for the disposal of this petitioner are that originally a petition for ejectment under Section 13 of the Haryana Urban Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”) was filed by Landlord Me-har Chand against the tenants, namely, Krishan Lal and Hari Chand, which was subsequently continued by Jagdish Kumar, the successor-in-interest of Mehar Chand. It has been alleged in the petition that the petitioner and Hari Chand were tenants under respondent No. 1, of the shop in question situated at Railway Road Rewari. It has been further averred in the petition that the tenants made material additions and alterations in the shop in question, which had resulted in the impairment of value and utility of the shop by removing intervening wall, between the two bays of the shop, by placing guarders below the roof, by constructing a water tank in the shop, which causes seepage in the walls-and further by raising the level of the floor of the shop in question thereby reducing the height of the demised premises. The plea of change of user of the shop by the tenants was also raised by the landlord.
3. The ejectment petition was contested by the tenants on the grounds that the intervening wall between the bays of the shop was removed with the oral consent of the petitioner (respondent No. 1 herein); the floor of the shop was repaired and that the rent note, if it carries a recital that the shop was in two bays, was not binding upon them as the terms and conditions thereof were not read over to them since they did not know Hindi.
4. The learned Rent Controller after framing necessary issues and evaluating the oral as well as documentary evidence arrived at a conclusion that the tenants had carried out additions and alterations in the demised premises without the consent of the landlord and were liable to be ejected on that ground and the remaining issues were decided against the landlord. Feeling dissatisfied with the finding recorded by the Rent Controller, the tenants preferred an appeal before the learned lower appellate authority, Narnaul, who, after re-analyzing the case of the tenants on the basis of the material available on the record, recorded a finding of fact, thereby affirming the reasoning given by the Rent Controller on the point of impairment of the utility of the building in question without the consent of the landlord, which ultimately resulted in dismissal of the appeal filed by the tenants and thus thereby granting two months time to them to vacate the premises in question. Finding no other alternative against the concurrent findings recorded by the courts below, the petitioner-tenant came up in revision before this Court raising number of pleas therein.
5. I have heard the learned Counsel for the parties and have also gone through the record of the case meticulously.
6. Learned Counsel appearing for the petitioner has vehemently argued that the courts below have committed a gave error in recording the findings on the issue of impairment of the value and utility of the building in question against the petitioner-tenant holding that the tenants had carried out additions and alterations of the demised premises without the consent of the landlord and therefore, they were liable to be ejected on that ground. The other grounds taken by the landlord in his petition for the ejectment of the tenants from shop in question were not taken into consideration and they were held to be proved against the landlord and in favour of the tenants. The contention of the learned Counsel and the findings concurrently recorded by the courts below have to be meticulously scanned in the light of material available on the record of the case.
7. It is no doubt true that the contention raised by the learned Counsel has been dealt with by the courts below comprehensively and effectively by giving sound reasoning on the basis of evidence available on the record of the case, but even then it is imperative on the part of this Court to examine this important aspect of the matter by revaluating the evidence available on the record of the case to see whether there was any misreading or misconstruing the evidence available on the record on the part of the courts below in arriving at the conclusion, which resulted in recording concurrent finding against the tenants. In the backdrop of this case and in order to deal with the contention raised by the learned Counsel, I would, first of all, like to peep through the evidence available on the record on the basis of which the courts below have sought ejectment of the tenants from the shop in question.
8. Going through the pleadings set up by both the parties, and the impugned orders passed by the courts below it comes out that the three points with regard to removal of intervening wall between the two bays of the shop; construction of an underground tank which may cause seepage of the water in the joint western wall and raising of the level of the floor of the shop thereby reducing the internal height of the shop are required to be scrutinized. As per the case of the tenants, all these additions and alterations were made with the permission of the landlord. Further, there is no evidence on the file to spell out as to what was the ground level of the shop in dispute before it was raised and there is also no evidence to show as to how much level was raised. According to the petitioner-tenants, they only repaired the floor of the shop and did not raise any level of the floor of the shop in dispute. It has been established on the record of the case that the learned Counsel representing the tenants before the lower courts did not raise any argument on the point of change of user and also on the point as to how much level of the floor was raised, inasmuch as they did not prove by evidence. In the absence of any evidence on this point, it is not possible for this Court to go into this aspect of the matter in either way.
9. Now coming to the point of removal of intervening wall and the construction of an underground water tank without the consent of the landlord, I have to go, first of all, into the rent note, Ex. AW-1/3, which was executed by the tenants in favour of Mehar Chand, predecessor in interest of Jagdish Kumar, the present landlord, wherein the shop in dispute was described to be consisting of two bays. This document was executed by the tenants and scribed by Daulat Ram AW-1 at the instance of the tenants and there cannot be any question of connivance of the previous landlord Mehar Chand and petition writer in getting the shop described as consisting of the two bays. From this document, it spells out that the shop when was let out to the tenants was consisting of two bays. Meaning thereby that, there was a well between the two bays, which, according to the landlord, was a supporting wall. The tenants have admitted themselves that they had removed this wall with the consent of the landlord in the year 1965 itself. This admission on the part of the tenants shows that they at least removed the wall. Krishan Lal, tenant, however, stated that he had taken the shop on rent about 14-15 years ago, i.e. in the year 1965. He did not state as to when the constructions had been carried out by him but he stated that the shop is in the same condition since the beginning. Further, he stated, “In the beginning when the shop had been taken on rent, the owner of the shop got the floor and the tank done and had also got the partition walls removed because I have to run the restaurant business therein. “He then went on to say “The Beam in the shop is an old one, I did not carry out any alteration in the building by my own will nor I raised the level of the floor.” This contradicted not only his own statement in the written statement but also the statement of his witnesses, particularly of RW-4 Thakar Dass who deposed that the constructions were carried out by the tenant and that he had actually sought consent of the landlord in this connection. This shifting stand of the tenant evidently falsifies his averment regarding the obtaining of the consent from the landlord for the removal of the wall. Now the only question survives for consideration before this Court is as; to whether this wall was removed with the consent of the landlord and as to when the same was removed. The landlord has examined Prem Dass (AS-3), Mohan Lal (AW-5) and the attorney of the landlord, Manohar Lal, himself appeared as AW-6. All these witnesses have deposed that approximately in the year 1975-76 the intervening wall was removed and the shop was converted into having one bay. In order to prove this point whether or not the wall in question was removed with the consent of the previous landlord, it was incumbent upon the tenants to bring the previous landlord into the witness box to testify that the wall in question was removed with his consent, but he did not do so. In such like circumstances, the presumption can be drawn that the wall in question was removed by the tenants without the consent of the landlord since the burden to prove the issue was on the tenants. Both the courts below have recorded a finding of fact concurrently on the point that the intervening wall was unoved without the consent of the landlord and the under ground, water tank was m.-.o constructed at the same time when the wall was removed. I am in full agreement with the findings recorded by the courts below warranting no interference therein.
10. Now the question arises for consideration is as to whether there alterations can be termed as material alterations diminishing the value and utility of the shop in dispute. Learned Counsel for the landlord has argued that the wall, which was removed was a supporting wall and its removal has diminished the stability of the roof of the shop and the construction of an underground water tank of the dimension of three feet x three feet causes a constant threat to the strength of the joint western wall of the shop in question in case seepage of water occurs. Per contra, learned Counsel for the petitioner-tenant has vehemently argued that the removal of the wall cannot be taken to mean that there was a material alteration in the shop in dispute and thereby diminishing the value and utility of the same. In support of his contention, learned Counsel appearing for the petitioner-tenant has placed reliance on the authorities in the cases of Krishan Avtar Gupta v. Chameli Devi ; Bahadur Singh v. Om Parkash (1991-2) 100 P.L.R. 462 and Nand Singh v. Ram Narain 1987 (2) Rent Control Reporter 213.
11. Having gone through the law laid down in the authorities referred to above, I am of the view that the same are not applicable to the facts of the case in hand and do riot advance the case of tenants, especially when there is admission on the part of the tenants that they made the additions and alterations by way of removal of the supporting wall between the two bay; placing the guarder below the roof and construction of an underground water tank and thereby causing danger to the wall of the shop in dispute with the consent of the previous landlord, but they did not produce the previous landlord into the witness box to substantiate their plea. Otherwise also, if the tenants had-sought permission of the landlord to make additions and alterations in the shop in question, he would not have filed the ejectment petition against them. Since it has been proved on the record that the tenants had made additions and alterations in the shop in dispute and which fact has been proved on the basis of admission made by the tenants themselves, in such like circumstances it does not lie now in the mouth of the tenant petitioner that changes made by them were not of material nature and that they did not diminish the value and utility of the demised premises. In my considered view the courts below are right in arriving at the conclusion that the additions and alterations made in the shop in dispute by the tenants are of material character and they have impaired the value and utility thereof. The findings recorded by the courts below are hereby affirmed warranting no interference.