{"id":246065,"date":"2009-11-03T00:00:00","date_gmt":"2009-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-avtar-vs-lekh-raj-on-3-november-2009"},"modified":"2017-05-04T13:52:56","modified_gmt":"2017-05-04T08:22:56","slug":"ram-avtar-vs-lekh-raj-on-3-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-avtar-vs-lekh-raj-on-3-november-2009","title":{"rendered":"Ram Avtar vs Lekh Raj on 3 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ram Avtar vs Lekh Raj on 3 November, 2009<\/div>\n
Civil Revision No.118 of 2007                                             1\n\n\n     IN THE HIGH COURT FOR THE STATES OF PUNJAB AND\n                 HARYANA AT CHANDIGARH.\n\n\n                                  Civil Revision No.118 of 2007\n                                  Date of Decision:-November 3,2009\n\n\nRam Avtar                                                 ...Petitioner\n\n                                    Versus\n\nLekh Raj                                                  ...Respondent\n\n\n\nCORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR\n\n\nPresent:     Mr.R.M.Singh, Advocate for the petitioner.\n             Mr.Rakesh Malik, Advocate for the respondent.\nMehinder Singh Sullar, J.\n<\/pre>\n
             This revision petition has been directed by Ram Avtar son<\/p>\n
of Amilal petitioner-tenant (hereinafter to be referred as “the tenant)<\/p>\n
against the impugned order dated 11.4.2005, whereby the Rent<\/p>\n
Controller accepted the ejectment petition filed by Lekh Raj son of<\/p>\n
Tota Ram respondent-landlord (hereinafter to be referred as “the<\/p>\n
landlord”), directed him (tenant) to hand over the vacant possession<\/p>\n
of the demised premises to the landlord and the judgment dated<\/p>\n
25.8.2006, vide which the Appellate Authority has dismissed his<\/p>\n
appeal (tenant’s) as well.\n<\/p>\n
             The facts, barely needed, relevant for disposal of present<\/p>\n
revision petition and emanating from the record, are that originally,<\/p>\n
the landlord filed an ejectment petition against the tenant from the<\/p>\n
demised premises i.e. the shop in dispute on the following grounds:-<\/p>\n
             i) That the tenant has failed to pay the rent at the rate
\n Civil Revision No.118 of 2007                                                 2<\/span><\/p>\n
                of Rs.220\/- per month besides house tax @ 12\u00bd %<\/p>\n
                from       1.4.2000   to    31.7.2000   despite   repeated<\/p>\n
                demands.\n<\/p><\/blockquote>\n
             ii) That the disputed premises let out as a shop to the<\/p>\n
                tenant but the same is being used by him as a<\/p>\n
                godown without the written or oral permission of the<\/p>\n
                landlord and the disputed shop is being used by the<\/p>\n
                tenant for a purpose other than for which it was let<\/p>\n
                out and thus he has deteriorated the value and utility<\/p>\n
                of the same by constantly closing it as air and light<\/p>\n
                does not enter into the same due to its closure.<\/p>\n<\/blockquote>\n
             iii)That in the eastern side of the disputed shop, there<\/p>\n
                is a pukhta verandah which is covered by roof made<\/p>\n
                of bricks with mortar. The tenant has constructed<\/p>\n
                pukhta almirah marked by letters ‘IJ’ in the site plan<\/p>\n
                in the walls of the disputed shop and has also<\/p>\n
                started construction in the verandah with a view to<\/p>\n
                merge the verandah into the shop by fixing a shutter<\/p>\n
                in the verandah and by removing its wooden door<\/p>\n
                and thus he has blocked the air and light by such<\/p>\n
                construction      into     the   disputed   premises   and,<\/p>\n
                therefore, he has materially impaired its value and<\/p>\n
                utility.\n<\/p><\/blockquote>\n
             iv)That the disputed shop is in dilapidated condition.<\/p>\n
                The plaster of the walls of the same has come off.<\/p>\n
                The bricks have also come off and there is
\n Civil Revision No.118 of 2007                                             3<\/span><\/p>\n
                dumpness in the walls as well. There are numerous<\/p>\n
                cracks in the disputed shop. Its roof is in a crumbling<\/p>\n
                state, its walls and roof have become so weak that<\/p>\n
                the same are likely to fall at any time and the<\/p>\n
                disputed shop is in such a dilapidated condition that<\/p>\n
                it requires immediate demolition and reconstruction.<\/p>\n
                The roof of the verandah at point ‘X’ shown in the<\/p>\n
                site plan has already been fallen down.<\/p><\/blockquote>\n
             The landlord asked the tenant many times to vacate the<\/p>\n
disputed shop, but in vain which necessitated him (landlord) to file<\/p>\n
the present eviction petition. On the basis of the aforesaid grounds,<\/p>\n
the landlord filed the ejectment petition against the tenant, in the<\/p>\n
manner indicated here-in-above.\n<\/p>\n
             The tenant contested the claim of the landlord and filed<\/p>\n
the written statement in which the relationship of landlord and tenant<\/p>\n
between the parties was admitted. The entire rent was stated to have<\/p>\n
already been paid to the landlord and the payment of house tax was<\/p>\n
denied. According to the tenant, the demised premises were taken<\/p>\n
on rent for the godown vide rent note executed on 7.10.2008. The<\/p>\n
value and utility of the shop in dispute was stated to have not<\/p>\n
materially been diminished. It will not be out of place to mention here<\/p>\n
that the tenant has stoutly denied all other allegations (grounds)<\/p>\n
contained in the ejectment petition and prayed for its dismissal.<\/p>\n
             In the wake of pleadings of the parties, the Rent<\/p>\n
Controller framed the following issues vide order dated 4.12.2000:-
\n Civil Revision No.118 of 2007                                            4<\/span><\/p>\n
            1. Whether the respondent is liable to pay house tax at<\/p>\n
               the rate of 12\u00bd % in addition to rent?OPP<\/p>\n<\/blockquote>\n
            2. Whether the respondent is in arrears of rent for the<\/p>\n
               period 1.4.2000 to 31.7.2000, if so its effect?OPP<\/p>\n<\/blockquote>\n
            3. Whether the respondent has changed the user of the<\/p>\n
               disputed property, if so its effect?OPP<\/p>\n<\/blockquote>\n
            4. Whether the respondent has material altered the<\/p>\n
               structure of the disputed property causing material<\/p>\n
               impaired in its value and utility, if so its effect?OPP<\/p>\n<\/blockquote>\n
            5. Whether the shop in dispute is in dilapidated<\/p>\n
               condition?OPP<\/p>\n<\/blockquote>\n
            6. Relief.<\/p><\/blockquote>\n
             Thereafter, the case was slated for evidence of the<\/p>\n
landlord.\n<\/p>\n
             The parties produced oral as well as documentary<\/p>\n
evidence in order to substantiate their respective pleaded cases.<\/p>\n
             The Rent Controller accepted the ejectment petition and<\/p>\n
ordered the ejectment of the tenant vide impugned order dated<\/p>\n
11.4.2005. The appeal filed by him was also dismissed by the<\/p>\n
Appellate Authority vide impugned judgment dated 25.8.2006.<\/p>\n
             Having lost the legal battle, the tenant has filed the<\/p>\n
present revision petition challenging the concurrent finding recorded<\/p>\n
by the Courts below. It is conceded position at the bar that the only<\/p>\n
ground survives and requires adjudication in this petition is as to<\/p>\n
whether the construction made by the tenant has materially impaired<\/p>\n
the value and utility of demised premises, which was subject matter
\n Civil Revision No.118 of 2007                                       5<\/span><\/p>\n
under issue No.4. That is how I am seized of the matter.<\/p>\n
             Having heard the learned counsel for the parties, having<\/p>\n
gone through the record of the case and after bestowal of thoughts<\/p>\n
over the entire matter, to me, as there is no merit, therefore, the<\/p>\n
present revision petition deserves to be dismissed for the reasons<\/p>\n
mentioned here-in-below.\n<\/p>\n
             As indicated earlier, the Appellate Authority and the Rent<\/p>\n
Controller having considered the oral as well as documentary<\/p>\n
evidence on record came to the definite conclusion that the tenant<\/p>\n
has made construction materially impairing the value and utility of the<\/p>\n
demised premises and ordered the ejectment of the tenant in this<\/p>\n
respect.\n<\/p>\n
             However, the celebrated argument of learned counsel for<\/p>\n
the tenant that the Courts below have wrongly placed reliance upon<\/p>\n
the report (which was submitted before summoning him) and<\/p>\n
evidence of the Local Commissioner, because no prior notice was<\/p>\n
given to him by the Local Commissioner before inspecting the spot,<\/p>\n
is not only devoid of merit but misplaced as well, because the tenant<\/p>\n
has himself admitted the construction made by him. Therefore, there<\/p>\n
appears to be no infirmity in the evidence of Local Commissioner in<\/p>\n
this respect. Moreover, the Local Commissioner has only depicted<\/p>\n
the existence of the construction, particularly when the further case<\/p>\n
of the tenant was that the construction did not change materially, the<\/p>\n
value and utility of demised premises. He has failed to point out how<\/p>\n
his case was prejudice in this behalf.\n<\/p>\n
             Not only that, the tenant has admitted the construction,
\n Civil Revision No.118 of 2007                                             6<\/span><\/p>\n
the landlord has also examined Subhash Chand, Deed-Writer, who<\/p>\n
has prepared the site plan Ex.P5 of the existing construction of the<\/p>\n
demised premises in order to show the material alterations made by<\/p>\n
the tenant. Vijay Sharma, Advocate, who was appointed as Local<\/p>\n
Commissioner also visited the spot and gave his report Ex.P1 and<\/p>\n
site plan prepared by him is Ex.P2, which reveals that the tenant has<\/p>\n
fixed two pillars on the eastern side and on the northern side a wall of<\/p>\n
old bricks has been constructed, which was freshly white washed,<\/p>\n
part of the roof of verandah was shown as broken and it was a<\/p>\n
godown of Tent House. On the southern side, two pacca shelves<\/p>\n
(Tands) have been constructed. Similarly, one shelf (Tand) has been<\/p>\n
constructed on the western side, which was constructed by placing<\/p>\n
iron garder and stone slabs.\n<\/p>\n
             Meaning thereby, it stands proved on record that in all the<\/p>\n
three shelves, pacca garder has been used, besides other<\/p>\n
constructions mentioned here-in-above. The walls have also been<\/p>\n
constructed to support these shelves. The existing position is also<\/p>\n
depicted in the photographs proved by AW3 Rahim Sagar. The<\/p>\n
landlord while appearing as RW4 has also tendered his affidavit<\/p>\n
Ex.RW4 corroborated his pleaded case on all vital counts and<\/p>\n
specifically maintained that the construction, material alterations<\/p>\n
made by the tenant has materially impaired the value and utility of the<\/p>\n
building and simple denial by tenant is not sufficient in this context.<\/p>\n
             Thus, it would be seen that if entire oral as well as<\/p>\n
documentary evidence brought on record by the landlord is put<\/p>\n
together, then conclusion is inescapable that it stands proved on
\n Civil Revision No.118 of 2007                                         7<\/span><\/p>\n
record that the tenant has constructed the wall and pacca shelves<\/p>\n
with iron garder and altered the shape of demised premises and<\/p>\n
contrary argument of learned counsel for the tenant stricto-sensu<\/p>\n
deserves to be and are hereby repelled.\n<\/p>\n
             Faced with this situation, the other argument of learned<\/p>\n
counsel for the tenant that assuming for the sake of argument, the<\/p>\n
construction is proved on record and admitted by the tenant, even<\/p>\n
then the same has not materially impaired the value and utility of the<\/p>\n
demised premises, is neither tenable nor the observations of Hon’ble<\/p>\n
Supreme Court of India in Waryam Singh Vs. Baldev Singh 2002 (2)<\/p>\n
R.C.R. 594 and this Court in Amar Nath Versus Guru Ramdass<\/p>\n
Textile Mills 2002 (1) RCR (Rent) 595 are at all applicable to the<\/p>\n
facts of the present case.\n<\/p>\n
             The crux of the law laid down in the aforesaid judgments<\/p>\n
is that not only that the landlord has to prove that the tenant has<\/p>\n
made alterations and additions, he has also further to prove that it<\/p>\n
affected the value and utility of the building and if the construction is<\/p>\n
minor one and can be removed by spending few amount, the same<\/p>\n
would not be considered as material alterations in the value or utility<\/p>\n
of the property.\n<\/p>\n
             Possibly, no one can dispute about the aforesaid<\/p>\n
observations, but to my mind, the same would not come to the<\/p>\n
rescue of the tenant because as discussed here-in-above, it stands<\/p>\n
proved on record by cogent evidence coupled with the admission of<\/p>\n
the tenant that besides other alterations, the pacca wall and structure<\/p>\n
have been constructed by putting slabs and garder, which inter-alia,
\n Civil Revision No.118 of 2007                                          8<\/span><\/p>\n
interrupted the free flow of air and light and has, thus, materially<\/p>\n
impaired the value and utility of the building. Moreover, there was a<\/p>\n
clear stipulation in the rent note, which is clear from the extract of the<\/p>\n
register of Deed Writer Ex.RW3\/A that the tenant will not make any<\/p>\n
repair, but still he made alterations without the consent of the<\/p>\n
landlord. The impairment of value and utility of the building is to be<\/p>\n
seen not from the angle of the tenant but from the view point of the<\/p>\n
landlord. Hence, to me, as the construction and alterations made by<\/p>\n
the tenant without the permission of the landlord has materially<\/p>\n
impaired the value and utility of the building, therefore, he is liable to<\/p>\n
be evicted. The authorities below have rightly accepted the ejectment<\/p>\n
petition of the landlord in this context and no fault whatsoever can be<\/p>\n
found with the same.\n<\/p>\n
             There is another aspect of the matter which can be<\/p>\n
viewed from a different angle. Section 15 (5) of the Act postulates<\/p>\n
that the decision of the appellate authority and subject to such<\/p>\n
decision, the order of the Controller shall be final and shall not be<\/p>\n
liable to be called in question in any court of law except as provided<\/p>\n
in sub-section (6) of this section, which further posits that the High<\/p>\n
Court as revisional authority, may, at any time, on its own motion or<\/p>\n
on the application of any aggrieved party, made within a period of<\/p>\n
ninety days, call for and examine the record relating to any order<\/p>\n
passed or proceedings taken under` this Act for the purpose of<\/p>\n
satisfying itself as to the legality or propriety of such order or<\/p>\n
proceedings and may pass such order in relation thereto as it may<\/p>\n
deem fit.\n<\/p>\n
 Civil Revision No.118 of 2007                                        9<\/span><\/p>\n
              It means, the scope of the revisional jurisdiction of this<\/p>\n
Court is very limited and is confined only to testing the legality or<\/p>\n
propriety of the orders under revision. It is now well settled<\/p>\n
proposition of law that this Court cannot legally appreciate or re-<\/p>\n
appreciate the evidence dictated by mere inclination to take a<\/p>\n
different view of the facts. It is not the province of this Court to<\/p>\n
dislodge the concurrent findings recorded by the courts below unless<\/p>\n
the same are perverse, arbitrary, absurd, not based on evidence and<\/p>\n
without jurisdiction.\n<\/p>\n
             As stated above, in the wake of appraisal and<\/p>\n
appreciation of oral as well as documentary evidence brought on<\/p>\n
record by the parties, both the courts below have recorded a finding<\/p>\n
of fact based on evidence that alteration and construction made by<\/p>\n
the tenant in fact have materially impaired the value and utility of the<\/p>\n
building and such finding cannot possibly be set aside in the exercise<\/p>\n
of revisional jurisdiction of this Court. No such patent illegality or<\/p>\n
irregularity has been pointed out by the learned counsel for the<\/p>\n
tenant in the impugned orders.\n<\/p>\n
             Thus, seen from any angle, to me, the courts below have<\/p>\n
rightly appreciated the evidence brought on record and came to the<\/p>\n
correct conclusion that the tenant has made alterations and<\/p>\n
constructions materially impairing the value and utility of the building<\/p>\n
and have rightly passed the impugned orders which deserve to be<\/p>\n
and are hereby maintained in the obtaining circumstances of the<\/p>\n
case.\n<\/p>\n
             No other point worth consideration has been urged or
\n Civil Revision No.118 of 2007                                         10<\/span><\/p>\n
pressed by learned counsel for the parties.\n<\/p>\n
             In the light of the aforesaid reasons, as there is no merit,<\/p>\n
therefore, the present petition is hereby dismissed with no order as to<\/p>\n
costs.<\/p>\n
\n\n\n\n                                           (Mehinder Singh Sullar)\nNovember 3,2009                                           Judge\nAS\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ram Avtar vs Lekh Raj on 3 November, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-246065","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nRam Avtar vs Lekh Raj on 3 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-avtar-vs-lekh-raj-on-3-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Avtar vs Lekh Raj on 3 November, 2009 - 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