Civil Revision No.118 of 2007 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
Civil Revision No.118 of 2007
Date of Decision:-November 3,2009
Ram Avtar ...Petitioner
Versus
Lekh Raj ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present: Mr.R.M.Singh, Advocate for the petitioner.
Mr.Rakesh Malik, Advocate for the respondent.
Mehinder Singh Sullar, J.
This revision petition has been directed by Ram Avtar son
of Amilal petitioner-tenant (hereinafter to be referred as “the tenant)
against the impugned order dated 11.4.2005, whereby the Rent
Controller accepted the ejectment petition filed by Lekh Raj son of
Tota Ram respondent-landlord (hereinafter to be referred as “the
landlord”), directed him (tenant) to hand over the vacant possession
of the demised premises to the landlord and the judgment dated
25.8.2006, vide which the Appellate Authority has dismissed his
appeal (tenant’s) as well.
The facts, barely needed, relevant for disposal of present
revision petition and emanating from the record, are that originally,
the landlord filed an ejectment petition against the tenant from the
demised premises i.e. the shop in dispute on the following grounds:-
i) That the tenant has failed to pay the rent at the rate
Civil Revision No.118 of 2007 2of Rs.220/- per month besides house tax @ 12½ %
from 1.4.2000 to 31.7.2000 despite repeated
demands.
ii) That the disputed premises let out as a shop to the
tenant but the same is being used by him as a
godown without the written or oral permission of the
landlord and the disputed shop is being used by the
tenant for a purpose other than for which it was let
out and thus he has deteriorated the value and utility
of the same by constantly closing it as air and light
does not enter into the same due to its closure.
iii)That in the eastern side of the disputed shop, there
is a pukhta verandah which is covered by roof made
of bricks with mortar. The tenant has constructed
pukhta almirah marked by letters ‘IJ’ in the site plan
in the walls of the disputed shop and has also
started construction in the verandah with a view to
merge the verandah into the shop by fixing a shutter
in the verandah and by removing its wooden door
and thus he has blocked the air and light by such
construction into the disputed premises and,
therefore, he has materially impaired its value and
utility.
iv)That the disputed shop is in dilapidated condition.
The plaster of the walls of the same has come off.
The bricks have also come off and there is
Civil Revision No.118 of 2007 3dumpness in the walls as well. There are numerous
cracks in the disputed shop. Its roof is in a crumbling
state, its walls and roof have become so weak that
the same are likely to fall at any time and the
disputed shop is in such a dilapidated condition that
it requires immediate demolition and reconstruction.
The roof of the verandah at point ‘X’ shown in the
site plan has already been fallen down.
The landlord asked the tenant many times to vacate the
disputed shop, but in vain which necessitated him (landlord) to file
the present eviction petition. On the basis of the aforesaid grounds,
the landlord filed the ejectment petition against the tenant, in the
manner indicated here-in-above.
The tenant contested the claim of the landlord and filed
the written statement in which the relationship of landlord and tenant
between the parties was admitted. The entire rent was stated to have
already been paid to the landlord and the payment of house tax was
denied. According to the tenant, the demised premises were taken
on rent for the godown vide rent note executed on 7.10.2008. The
value and utility of the shop in dispute was stated to have not
materially been diminished. It will not be out of place to mention here
that the tenant has stoutly denied all other allegations (grounds)
contained in the ejectment petition and prayed for its dismissal.
In the wake of pleadings of the parties, the Rent
Controller framed the following issues vide order dated 4.12.2000:-
Civil Revision No.118 of 2007 4
1. Whether the respondent is liable to pay house tax at
the rate of 12½ % in addition to rent?OPP
2. Whether the respondent is in arrears of rent for the
period 1.4.2000 to 31.7.2000, if so its effect?OPP
3. Whether the respondent has changed the user of the
disputed property, if so its effect?OPP
4. Whether the respondent has material altered the
structure of the disputed property causing material
impaired in its value and utility, if so its effect?OPP
5. Whether the shop in dispute is in dilapidated
condition?OPP
6. Relief.
Thereafter, the case was slated for evidence of the
landlord.
The parties produced oral as well as documentary
evidence in order to substantiate their respective pleaded cases.
The Rent Controller accepted the ejectment petition and
ordered the ejectment of the tenant vide impugned order dated
11.4.2005. The appeal filed by him was also dismissed by the
Appellate Authority vide impugned judgment dated 25.8.2006.
Having lost the legal battle, the tenant has filed the
present revision petition challenging the concurrent finding recorded
by the Courts below. It is conceded position at the bar that the only
ground survives and requires adjudication in this petition is as to
whether the construction made by the tenant has materially impaired
the value and utility of demised premises, which was subject matter
Civil Revision No.118 of 2007 5
under issue No.4. That is how I am seized of the matter.
Having heard the learned counsel for the parties, having
gone through the record of the case and after bestowal of thoughts
over the entire matter, to me, as there is no merit, therefore, the
present revision petition deserves to be dismissed for the reasons
mentioned here-in-below.
As indicated earlier, the Appellate Authority and the Rent
Controller having considered the oral as well as documentary
evidence on record came to the definite conclusion that the tenant
has made construction materially impairing the value and utility of the
demised premises and ordered the ejectment of the tenant in this
respect.
However, the celebrated argument of learned counsel for
the tenant that the Courts below have wrongly placed reliance upon
the report (which was submitted before summoning him) and
evidence of the Local Commissioner, because no prior notice was
given to him by the Local Commissioner before inspecting the spot,
is not only devoid of merit but misplaced as well, because the tenant
has himself admitted the construction made by him. Therefore, there
appears to be no infirmity in the evidence of Local Commissioner in
this respect. Moreover, the Local Commissioner has only depicted
the existence of the construction, particularly when the further case
of the tenant was that the construction did not change materially, the
value and utility of demised premises. He has failed to point out how
his case was prejudice in this behalf.
Not only that, the tenant has admitted the construction,
Civil Revision No.118 of 2007 6
the landlord has also examined Subhash Chand, Deed-Writer, who
has prepared the site plan Ex.P5 of the existing construction of the
demised premises in order to show the material alterations made by
the tenant. Vijay Sharma, Advocate, who was appointed as Local
Commissioner also visited the spot and gave his report Ex.P1 and
site plan prepared by him is Ex.P2, which reveals that the tenant has
fixed two pillars on the eastern side and on the northern side a wall of
old bricks has been constructed, which was freshly white washed,
part of the roof of verandah was shown as broken and it was a
godown of Tent House. On the southern side, two pacca shelves
(Tands) have been constructed. Similarly, one shelf (Tand) has been
constructed on the western side, which was constructed by placing
iron garder and stone slabs.
Meaning thereby, it stands proved on record that in all the
three shelves, pacca garder has been used, besides other
constructions mentioned here-in-above. The walls have also been
constructed to support these shelves. The existing position is also
depicted in the photographs proved by AW3 Rahim Sagar. The
landlord while appearing as RW4 has also tendered his affidavit
Ex.RW4 corroborated his pleaded case on all vital counts and
specifically maintained that the construction, material alterations
made by the tenant has materially impaired the value and utility of the
building and simple denial by tenant is not sufficient in this context.
Thus, it would be seen that if entire oral as well as
documentary evidence brought on record by the landlord is put
together, then conclusion is inescapable that it stands proved on
Civil Revision No.118 of 2007 7
record that the tenant has constructed the wall and pacca shelves
with iron garder and altered the shape of demised premises and
contrary argument of learned counsel for the tenant stricto-sensu
deserves to be and are hereby repelled.
Faced with this situation, the other argument of learned
counsel for the tenant that assuming for the sake of argument, the
construction is proved on record and admitted by the tenant, even
then the same has not materially impaired the value and utility of the
demised premises, is neither tenable nor the observations of Hon’ble
Supreme Court of India in Waryam Singh Vs. Baldev Singh 2002 (2)
R.C.R. 594 and this Court in Amar Nath Versus Guru Ramdass
Textile Mills 2002 (1) RCR (Rent) 595 are at all applicable to the
facts of the present case.
The crux of the law laid down in the aforesaid judgments
is that not only that the landlord has to prove that the tenant has
made alterations and additions, he has also further to prove that it
affected the value and utility of the building and if the construction is
minor one and can be removed by spending few amount, the same
would not be considered as material alterations in the value or utility
of the property.
Possibly, no one can dispute about the aforesaid
observations, but to my mind, the same would not come to the
rescue of the tenant because as discussed here-in-above, it stands
proved on record by cogent evidence coupled with the admission of
the tenant that besides other alterations, the pacca wall and structure
have been constructed by putting slabs and garder, which inter-alia,
Civil Revision No.118 of 2007 8
interrupted the free flow of air and light and has, thus, materially
impaired the value and utility of the building. Moreover, there was a
clear stipulation in the rent note, which is clear from the extract of the
register of Deed Writer Ex.RW3/A that the tenant will not make any
repair, but still he made alterations without the consent of the
landlord. The impairment of value and utility of the building is to be
seen not from the angle of the tenant but from the view point of the
landlord. Hence, to me, as the construction and alterations made by
the tenant without the permission of the landlord has materially
impaired the value and utility of the building, therefore, he is liable to
be evicted. The authorities below have rightly accepted the ejectment
petition of the landlord in this context and no fault whatsoever can be
found with the same.
There is another aspect of the matter which can be
viewed from a different angle. Section 15 (5) of the Act postulates
that the decision of the appellate authority and subject to such
decision, the order of the Controller shall be final and shall not be
liable to be called in question in any court of law except as provided
in sub-section (6) of this section, which further posits that the High
Court as revisional authority, may, at any time, on its own motion or
on the application of any aggrieved party, made within a period of
ninety days, call for and examine the record relating to any order
passed or proceedings taken under` this Act for the purpose of
satisfying itself as to the legality or propriety of such order or
proceedings and may pass such order in relation thereto as it may
deem fit.
Civil Revision No.118 of 2007 9
It means, the scope of the revisional jurisdiction of this
Court is very limited and is confined only to testing the legality or
propriety of the orders under revision. It is now well settled
proposition of law that this Court cannot legally appreciate or re-
appreciate the evidence dictated by mere inclination to take a
different view of the facts. It is not the province of this Court to
dislodge the concurrent findings recorded by the courts below unless
the same are perverse, arbitrary, absurd, not based on evidence and
without jurisdiction.
As stated above, in the wake of appraisal and
appreciation of oral as well as documentary evidence brought on
record by the parties, both the courts below have recorded a finding
of fact based on evidence that alteration and construction made by
the tenant in fact have materially impaired the value and utility of the
building and such finding cannot possibly be set aside in the exercise
of revisional jurisdiction of this Court. No such patent illegality or
irregularity has been pointed out by the learned counsel for the
tenant in the impugned orders.
Thus, seen from any angle, to me, the courts below have
rightly appreciated the evidence brought on record and came to the
correct conclusion that the tenant has made alterations and
constructions materially impairing the value and utility of the building
and have rightly passed the impugned orders which deserve to be
and are hereby maintained in the obtaining circumstances of the
case.
No other point worth consideration has been urged or
Civil Revision No.118 of 2007 10
pressed by learned counsel for the parties.
In the light of the aforesaid reasons, as there is no merit,
therefore, the present petition is hereby dismissed with no order as to
costs.
(Mehinder Singh Sullar)
November 3,2009 Judge
AS