Civil Revision No.1455 of 1989 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1455 of 1989 (O & M)
Date of decision 04.02.2009
Peer Itwari Nath .....Petitioner
versus
Krishan Kumar .....Respondent
Coram:- Hon'ble Mr. Justice K. Kannan.
Present: Mr. Amit Jain, Advocate for the petitioner.
Ms. Abha Rathore, Advocate for the respondent.
K. Kannan, J.
1. The landlord’s application for eviction was in respect of two
shops which had been rented out to the tenant on two distinct dates for the
same purpose of carrying on business by the tenant. The first shop rented
out in 1981 and the second shop was rented out in 1985. The petition was
presented on 16.7.1986 claiming eviction on the ground of non-payment of
rent from 1.03.1986 and for deliberate acts of waste of the tenant that went
to decreasing the value and utility of the building.
2. The case survived only on one ground namely of the acts of the
tenant that decreased the value and utility of the building, having regard to
the fact that the tenant had paid the arrears of rent at the first hearing. The
Rent Controller however, dismissed the petition on the ground that the
landlord had not clearly spelt out the details of the alleged acts of
demolition made by the tenant. The appellate court also confirmed the
decision of the trial Court.
3. The learned counsel appearing for the landlord assails the
findings of both the Court as having been made without proper reference to
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pleadings. On the finding by the Rent controller that there were no specific
pleadings of the landlord relating to the acts of demolition, the counsel for
the revision petitioner points out to the averments in the petition as regards
the ground raised by him in the following words:-
“That the respondent without the consent of the
petitioner has demolished the wall which was constructed
between shops Nos.1 and 2 and removed the beam and opened
one door between the said partitioned wall and another door
towards Road and also constructed two dark rooms in the two
shops, thus made an addition and alterations without consent of
the petitioner, thereby making the shops in question awkward
and unfit for human habitation and thereby diminished the
value and utility of the shops in question.”
4. To these expressed averments in the petition relating to the
removal of partition wall between the two shops and the removal of the
beam, the tenant had merely filed a counter which reads as follows:-
“That Para No.7(b) of the petition is incorrect and
no ground of ejectment is available to the petitioner and the
petition is liable to be dismissed with costs being in abuse of
the process of the Court.”
5. The counsel for the revision petitioner contended that there had
not been even a specific denial of the allegation attributed to the tenant;
that the observation of the Rent Controller that the landlord had not pleaded
sufficiently to establish the ground of eviction sought was clearly wrong.
He would further urge that the tenant had prevaricating stand even at the
trial. He admitted that there was separate wall between the two shops at one
point of time and at another time he contended that the wall had been
removed by the landlord himself. In yet another place, he contended that he
did not remove the wall, as if to say that the wall still existed. The
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translated portion of the evidence read as follows:-
“The wall falling in between both the shops was
common, but there was a door in the same. I am running a
business of photographer. I have not removed the wall, it was
lying removed since the very beginning. There is a wall and
door between both the shops. I have made one room as a dark-
room. It is incorrect that there is no wall. One shop opens
towards two sides. There is a shutter installed on both the
sides…………………………………………………………………………………..
…………………………… It is incorrect to say that the wall and door
were removed by the applicant himself. The applicant had
removed the central wall and given me on rent.”
6. This evidence clearly shows that the tenant was trying to be
evasive about who carried out the removal of the wall. The site plan filed
along with the petition clearly states the existence of the wall. The removal
of the wall and the beam have a definite bearing on the integrity of the
building and if the wall is proved to have been removed, it ought not to
possible for tenant to contend that the landlord himself removed the wall
and rented the building. There were definite averments in the petition
regarding the conduct of removal of wall by the tenant after the creation of
tenancy. The rejection of the application for eviction only on the ground
that the landlord had not given the date of removal is not, in my view,
appropriate. The contention of the landlord that the tenant had also made
some internal modifications for his business of setting up dark rooms cannot
probably be said to impair the utility or the use of the building. The
landlord, who knew all the particulars of business which the tenants was
carrying on ought to have known that the tenant could make some small
modifications to suit his business. Indeed, every addition or alteration
cannot entitle the landlord to secure eviction. The law requires material
Civil Revision No.1455 of 1989 (O & M) -4-
impairment of the building by the conduct of the tenant. The material
impairment urged by the landlord was very clear in its expression that the
tenant had removed the beam and opened one door between the partition
wall and another door towards the road. I have already pointed out to the
fact that there was no specific denial of this statement in the petition.
7. The dismissal of the petition of the landlord has been made
without properly adverting to the pleadings and the evidence and
particularly the prevaricating stand taken by the tenant. Under the
circumstances the orders of the Courts below are set aside and eviction is
ordered as prayed for.
8. Having regard to the fact that the tenant has been carrying on
business since 1981, the tenant shall have three months time to vacate the
premises. The revision petition is allowed on the above terms. No costs.
( K. KANNAN )
JUDGE
04.02.2009
A. KAUNDAL