Civil Revision No. 1096 of 2007 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Revision No. 1096 of 2007
Date of Decision: 10.11.2008
Dev Samaj Society (Registered)
...Petitioner
Versus
Lalita Rani
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Puneet Bali, Advocate
for the petitioner.
Mr. U.K.Agnihotri, Advocate
for the respondent.
Kanwaljit Singh Ahluwalia, J.
Dev Samaj Society through Sudarshan Kumar, Principal, Dev
Samaj Senior Model School, Ambala City, has preferred the present
revision petition assailing the orders of two Courts below i.e. learned
Rent Controller, Ambala and learned Appellate Authority, Ambala, as
eviction petition instituted on the ground of non-payment of rent and
material impairment of value and utility of the building was not accepted.
Having remained unsuccessful in two Courts below, in the present
revision petition, findings of the two Courts below have been challenged
on law and facts.
Civil Revision No. 1096 of 2007 2
Dev Samaj Society, landlord-petitioner, is having various
shops on Duni Chand Road near Congress Bhawan, Ambala City. One
of the shops was rented out to the respondent at the rate of Rs.190/- per
month excluding electricity and water charges. In the eviction petition, it
was averred that the rent of the shop was not paid the rent of the shop in
question since 1.12.2000 to 30.9.2001, total amounting to Rs.1,900/-.
Second ground pleaded was that the tenant has broken the floor of the
shop in question and thereby level of the floor was raised by
constructing the new floor without the written consent of the petitioner-
society. It was pleaded that the tenant has also raised the level of roof
and ceiling of the shop in question after breaking the ceiling and roof
and thereby damaged the walls of the shop in question, therefore, the
value and utility of the shop stood diminished.
Written statement was filed by the tenant. Preliminary
objection regarding the maintainability of the petition was raised.
Relationship of landlord-tenant was admitted. It was stated that the rent
was regularly paid. On refusal of the petitioner-landlord, arrears of rent
were tendered in the Court. It was stated that no structural changes
were made in the shop in the manner suggested by the landlord. It was
pleaded that there were more than dozen shops rented out and all the
shops were having a roof which was an old structure in existence. In
May 2000, Sudarshan Kumar on behalf of the Society, approached the
tenants individually and collectively expressing desire that a Computer
Institution is to be run, therefore, on removal of the belongings of the
shopkeepers on 22.5.2000, old structure of the roof was removed.
Petitioner-Society constructed the roof of the shop equal to the level of
Civil Revision No. 1096 of 2007 3
the shops under the tenancy of S.B.Traders and Gobind Ram. Landlord
had raised the level of the roof and the entire work was completed by
the petitioner-society. The landlord had also agreed to the demand of
the tenant that the level of the shops be raised because rainy water
enters into the shops.
The following issues were drawn by learned Rent Controller
1. Whether the respondent is in arrears of rent w.e.f.
1.12.2000 to 30.9.2001, if so its effect? OPP
2. Whether the respondent has materially altered the
property in question causing impairment in its value
and utility, if so its effect? OPP
3. Whether the petition is not maintainable? OPR
4. Relief.
Sudarshan Kumar appeared on behalf of the petitioner-
landlord as PW.1 and closed the evidence. Respondent-tenant
examined Ashok Kumar as RW.1, his brother-in-law, Sanjiv Goel, who
was having shop opposite, appeared as RW.2 and Surender Kumar
Verma, Building Inspector of Municipal Corporation, Ambala, has
appeared as RW.3.
Meaningful discussion of the two Courts below revolved
around the fact whether removal of the old roof and construction of the
new roof was at the instance of the petitioner or was done by the tenant.
Admittedly, there was no written consent. It was pleaded by the tenant
that construction of new roof was made by the landlord himself. The two
Courts below, to find out the answer as to which oral version is correct,
relied upon the circumstances which emerge from the oral testimony of
Civil Revision No. 1096 of 2007 4
the witnesses. Learned Rent Controller held that Sudarshan Kumar,
through whom the petition has been filed, has not been able to disclose
as to when the alleged changes were made. He also denied having
received the notice from the Municipal Committee regarding non-
sanction of the building plan, and the same was done at his instance by
the Municipal Committee. Learned Rent Controller came to the
conclusion that Sudarshan Kumar has not been able to state as to when
the construction was raised by the tenant. It also considered the fact
that he had not visited the said premises. It further inferred that failure
on the part of landlord to establish as to from which date alleged
alteration was made is sufficient to conclude that the landlord was
aware of the alterations made. Learned Appellate Authority duly noticed
the fact that it has been admitted by the landlord that the level of floor
and roof of dozen of shops was raised in May 2000. The business
activities of the said shops remained closed for about two months. The
Municipal Council had also issued notice to the landlord-appellant.
Therefore, learned lower Appellate Authority concluded as under:-
“…In the present case, the appellant is a Trust and
along with the demised shop, similar alterations were
made in about a dozen of tenanted shops belonging
to the appellant. On appraisal of the entire evidence,
it is not proved that the alterations were carried out
without the consent of the landlord. This is not a case
where the tenant may have alleged that he himself
carried out the alterations and rather, it is a case
where the land-lord got the alterations carried out in
Civil Revision No. 1096 of 2007 5many shops at the same time. The learned Rent
Controller appreciated the entire evidence adduced in
the case and recorded firm finding of fact holding that
it was the landlord/appellant who carried out the
alterations in the demised shop and several other
shops. On re-appraisal of the entire evidence, I find
no ground or justification to take a different view”.
I have heard Mr. Puneet Bali, learned Counsel for the
petitioner and Mr. U.K. Agnihotri, learned counsel for the respondent.
Mr. Bali relied upon Gurdial Singh and Others v. Raj Kumar Aneja
and Others 2002(2) Civil Court Cases 1 (Supreme Court) to say
where several cabins were constructed in the hall, the value and utility
of the building was considered to have been impaired. Therefore, it has
been stated that by raising the level of roof and the floor, tenant has
impaired the value of the property.
Reliance has been also placed by Mr. Bali on Mrs. Gian Kaur
v. Mrs. Krishna Anand 2006(2) Rent Control Reporter 610 and it has
been urged that impairing of the value and utility of the demises
premises is to be seen from the view point of the landlord and not the
tenant.
A further reliance has been placed on Inderpal v. Sat Narain
2004(2) Rent Control Reporter 441 and it has been urged that where
after the disputed alterations rent was raised and accepted by the
landlord, then also consent of the landlord cannot be presumed.
Further reliance has been placed upon Baij Nath v. Shail
Kumari 2003(1) Rent Control Reporter 197; Vijay Kumar Bansal v.
Civil Revision No. 1096 of 2007 6
Bishan Sarup 2003(1) Rent Control Reporter 627 and Smt. Nirmala
v. Ishwar Chander 1983(2) Rent Control Reporter 208 and it has
been submitted that the present revision petition ought to be accepted
and eviction of the tenants be ordered.
Mr. U.K.Agnihotri appearing for the respondent-tenant has
controverted the submissions by saying that the findings of the two
Courts below being concurrent are based upon appreciation of evidence
and revisional Court cannot disturb the same until it is held that the
finding is perverse. It is further submitted that the view formulated by the
two Courts below is one of the view which is possible and the same
cannot be altered.
The structure was changed, earlier roof was removed and
new ceiling over more than dozen of shops was laid is an admitted fact.
Whether this was done by the landlord as pleaded by the tenant or
tenant himself did, is the question which is dependent upon appreciation
of the evidence of the case. It is a fact that Municipal Council had
issued a notice for non-sanctioning of the building plan and later
changes made in the building have been compounded. Sudarshan
Kumar on material facts has not been able to disclose as to when the
alleged structural changes were made. He has denied having received
any notice from the Municipal Council regarding the non-sanctioning of
building plan of the shops in question. A solitary statement of
Sudarshan Kumar and his oral bald assertions are not sufficient to
advance his case. The findings of fact have been recorded by the two
Courts below. Whether the alterations made, impaired, utility and value
of the property is a mixed question of facts and law.
Civil Revision No. 1096 of 2007 7
From the kind of evidence led, the concurrent findings of two
Courts below warrant no interference and hence the present revision
petition is dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
November 10, 2008
“DK”