Gurmit Singh vs Smt. Kirpal Kaur on 13 July, 1992

Punjab-Haryana High Court
Gurmit Singh vs Smt. Kirpal Kaur on 13 July, 1992
Equivalent citations: (1992) 102 PLR 479
Author: V Jhanji
Bench: V Jhanji


JUDGMENT

V.K. Jhanji, J.

1. This is tenant’s revision petitioner.

2 Landlady (respondent herein) filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, (briefly ‘the Act’) for the ejectment of her tenant, Gurmit Singh (petitioner herein) on the ground that the tenant has materially impaired the value and utility of the premises.’ In the petition for ejectment, it was alleged that the shop in dispute was earlier sold by Sarbjit Singh s/o Hukam Singh who had let out the shop in dispute to the respondent on a rent of Rs. 200/- per month. Sarbjit Singh sold the property including the shop in possession of the tenant, to the landlady vide sale-deed dated 6-8-1979. After the sale, the tenant approached the landlady and requested her to let out another shop consisting of passage and space on the back of the previous shop and the landlady agreed to let out the shop after construction, on a rent of Rs. 800/per month. The consolidated rent of both these shops was thus claimed to be Rs. ,1000/- per month which also included house-tax. The landlady also alleged that the tenant paid a sum of Rs. 10,000/to the landlady on 6-8-1979. The ejectment was claimed on the grounds that the tenant has not paid the arrears of rent at the rate of Rs. 1000/- per month, w e.f. 6-7-1980; that the tenant has impaired the value and utility of the property; that the tenant without the written consent of the landlady, removed the wails AB and BC of the shop marked ‘x’ in the site plan and has amalgamated the two shops into one. The removal of the said walls AB and BC has materially effected the strength of the property; that the tenant has also lowered the flooring of the shop by one foot; that the tenant has fixed a wooden ceiling inside the shop by placing wooden beams. The wooden beams have been placed by digging holes in the walls and wooden planks have been fixed on the beams. The aforesaid construction of the ceiling has seriously effected the stability and life of the walls.

2. On appearance before the Rent Controller, the tenant tendered the rent at the rate of Rs. 1000/- per month, but claimed in the written statement that the rat-; of rent was Rs. 300/-and not Rs. 1000/as claimed by the landlady, it was claimed in the written statement that a sum of Rs. 10,000/- was paid to the landlady for the purchase of the shop and it was agreed between the parties that the said amount shall be returned to the respondent. It was also settled that till the amount of Rs. 10,000/-is returned, interest paid on Rs. 10,000/ was to be adjusted in the rent payable for the additional space meaning thereby that the tenant was to pay Rs. 200/- in cash to the landlady and was to pay Rs. 300/- as and when the amount of Rs. 10,000/- was returned.

3. The Rent Controller on the basis of evidence on record found that the rate of rent of the shop cannot be less than Rs. 700/- per month, ground of impairment of value and utility of the premises was found against the landlady and thus, the ejectment petition was dismissed. The landlady impugned the order of the Rent Controller before the Appellate Authority who allowed her appeal and ordered the ejectment of the tenant. The appellate Authority found that the rent was increased to Rs. 1000/- after additional space was made available to the tenant. Since the rent had been tendered by the tenant, as claimed in the ejectment petition, on the first date of hearing, the tenant was found not liable to be ejected on the ground of arrears of rent, but finding of the Rent Controller on the other grounds was reversed after having been found that the tenant has impaired the value and utility of the shap by constructing a gaddi (platform) false ceiling as well as by lowering the floor of the shop. This order is being impugned in the present revision petition, by the tenant.

4. Mr. J. N. Kaushal, Sr. Advocate counsel for the tenant contended that the finding of the appellate Authority on the issue of impairment of value and utility of the premises is liable to be reversed as the same is against the pleadings of the parties and is based on no evidence.

5. On the other hand, Mr M. L. Sarin, Senior Advocate, learned counsel for the landlady, while controverting the arguments of Mr. Kaushal submitted that the appellate Authority has considered the entire evidence on record and therefore, the impugned order calls for no interference.

6. I have perused the pleadings as well as evidence on record with the help of learned counsel for the parties. On perusal of record I find that the order of the appellate Authority cannot be sustained. In the ejectment petition, the landlady has claimed that the following acts of the tenant have impaired the value and utility of the premises :

(i) the tenant has removed the walls AB and BC of the shop marked ‘X’ and has amalgamated the two shops into one:

(ii) The tenant has lowered the flooring of the shop by one foot;

(iii) the tenant has fixed the false ceiling.

As far as removal of walls is concerned, the finding of the appellate Authority is that the walls were removed by the landlady herself at the time when additional space was made available to the tenant and the rent was increased to Rs. 1000/-. The appellate Authority though has ordered the ejectment of the tenant also on the ground that the tenant constructed a gaddi/plat form in the shop, yet no such grievance has been made by the landlady in her petition for ejectment. There- fore, the appellate Authority was not justified in taking into account It is alleged act of the tenant for ordering his ejectment. So far as false ceiling is concerned, the same being temporary in nature, has in no way, impaired the value and utility of the premises. It is also settled that mere construction of a false roof which is made only of wood is not enough to hold that by this Act, the tenant has changed the nature and character of the premises. Coming to the ground of lowering of floor of the shop, firstly, I find that there is no definite evidence on record that the floor was lowered by the tenant secondly, the landlady in her statement has stated that the tenant did all the alleged acts simultaneously,. but the Authorities below have found that the wails were removed by the landlady herself. A.W. 1 B. R. Dhall, a retired S.D O. who was produced as building expert by the landlady herself, has not stated in his report that the flooring of the shop was lowered by one foot subsequent to the removal of the walls. The tenant in his written statement has specifically denied that he ever lowered the flooring of the shop. Even otherwise, it is clear from the report of the Building expert that the flooring of the shop is still above the road level and therefore, in my view, lowering of floor by itself alone cannot be considered to be such an act which would bring the tenant within the mischief of impairing the value and utility of the premises. For this, I find support from the judgment of the Supreme Court in Om Pal v. Anand Swarup, (1988-2) 94 P. L. R. 699 (S. C.) wherein it was held that :

“In order to attract Section 13 (2) (iii), the construction must not only be one affecting or diminishing the value or utility of the building, but such impairment must be of a material nature, i.e. of a substantial and significant nature.”

However, I find no force in the contention of learned counsel for the petitioner that the rent of the premises cannot be more than Rs. 700/- per month as found by the Rent Controller. The appellate Authority has given valid reasons on the basis of the evidence on the record for coming to a finding that the rent was increased to Rs. 1000/- at the time when the additional space was made available to the tenant. Therefore, this finding calls for no interference.

7. Consequently, the revision petition is allowed the order of the appellate Authority is set aside and as a result thereof, ejectment petition stands dismissed with no order as to costs.

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