Judgment:
ORDER
1. The facts giving rise to the revision petition are as under :--
1. Narinder Nath was inducted as a tenant in the demised premises situated in Jalandhar on the basis of an agreement between him and them landlord, Lt, Col. Jaswant Singh, (respondent) made on I7th March, 1977. The landlord thereafter filed an application under Ss. 13(2)(b) and 2(b)(iii) of the East Punjab Urban Rent Reslriction Act, 1949 (hereinafter called the 'Act') claiming (i) that the tenant had after the inception of the tenancy started using the premises for a purpose other than that for which it had been let out and (ii) that the tenant had impaired the value and utility of the shop in question by making additions and alterations thereto. The tenant contested the application and claimed that the shop had been taken for the purpose of business but no particular nature of business had been specified. He also denied that the additions and alterations, as alleged, had been made but admitted that a wooden partition had been put up so as to facilitate the proper conduct of the business. The Rent Controller framed the following issues :
1. Whether there is relationship of the landlord and the tenant between the parties, OPA
2. Whether respondent has made additions and alterations and thereby materially impaired the value and utility of the property? OPA
Whether respondent has changed the purpose for which property was let out, if so to what effect, OPP
Whether petition is bad for non-joinder of necessary party? OPA
Whether plan attached with the petition is wrong? OPR
Relief.
Issue Nos. 1,4 and 5 were not contested by the tenant and, as such, were decided in favour of the landlord. Issue Nos. 2 and 3 were decided in favour of the landlord on merits and consequent thereto the Rent Controller ordered the ejectment of the tenant. Aggrieved by the order of the Rent Controller, the tenant preferred an appeal before the Appellate Authority, who reversed the findings on issue No. 3 and held that the change of user had not been proved but confirmed the ones on issue No. 2 and accordingly dismissed the appeal. Aggrieved by the order of the Appellate Authority, the present petition has been filed by the tenant.
2. Mr. Sarin, learned Senior Advocate appearing for the tenant-petitioner, has made a three fold argument; (i) that there was no evidence to show that the tenant had installed any shutter or made any alteration to the demised premises (ii) that even assuming that the shutter had been fixed, as claimed by the landlord, the various clauses of the rent note authorised such changes and (iii) that in any case the fixation of the shutter had not materially impaired the value and utility of the demised premises. In support of this assertion, reliance has been placed on M/s. Parkash Chand Harnam Singh v. Shri Gian Chand (1979) 81 Pun LR 196, Om Parkash v. Amar Singh, (1987) 1 Ren CR 326 : (AIR 1987 SC 617), Om Pal v. Anand Swarup, 1988 HRR 614 (SC), Darshan Kumar v. Kaka Ram 1991 (2) 100 Pun LR 412 and Bhupinder Singh v. J. L. Kapoor (1992) 2 Rent LR 243 (Punj & Har).
3. Mr. R. S. Cheema, learned Senior Advocate appearing for the respondent-landlord has, however, supported the findings of the authorities below on the reasoning adopted by them and has, in addition, urged that the scope of this Court's interference in revision under S. 15 of the Act was limited and circumscribed as held by the Supreme Court in Rukmini Amma Saradamma v. Kallyani Sulochana (1993) 1 SCC 499 : (1993AIR SCW 317) He has also urged that this Court was not entitled to reappraise the evidence so as to arrive at a conclusion different from the one taken by the authorities below and, if the view could be reasonably taken on the evidence adduced, this Court would not interfere. Mr. Sarin has, however, relying on Mrs. Mohini Suraj Bhan v. Vinod Kumar Mital, AIR 1986 SC 706, controverted this argument and urged that it was open to this Court to examine not only the legality but also the propriety of the orders of the authorities below and to reappraise the evidence, if necessary, to arrive at its own independent decision. After perusing the two cited cases, it appears to me that the observations of the Hon'ble Supreme Court do appear somewhat opposed to each other, but even assuming that this court can reappraise the evidence, as has been suggested by Mr. Sarin, I find that even on a reappraisal I cannot be persuaded to take a view different from the one that has already been taken. I, therefore, now proceed to examine in extenso the arguments raised by Mr. Sarin.
4. Elaborating his first point that the tenant had, in fact, not installed any shutter, Mr. Sarin has placed reliance on paragraph 3(ii) of the ejectment application filed by the landlord. The paragraph is reproduced below :
'That the tenant has materially impaired the value and utility of the shop in question. He has made additions and alterations for the purpose of installing the photostat machine which has materially impaired the value and utility of the shop in question. The respondent has also encroached upon and covered the verandah and converted it into a room and installed a door there in the verandah and. has thus made structural alterations materially effecting the utility of the premises in question.'
He has drawn my attention to the above quoted pleadings to contend that even as per the allegation made the tenant had, after covering the verandah, installed only a door and not a shutter as is now sought to be argued. He has urged that from this it was apparent that no case could be made out infavour of the landlord as the entire evidence that has been adduced was to the effect that a shutter had been installed. I however find this argument of Mr. Sarin wholly untenable. It is true that in the petition filed the reference is to a door and not to a shutter, but it is also well known that pleadings in our country are not to be construed so strictly or mechanically. The purpose of pleadings is to ensure that the other side is not caught unawares and in the facts of the present case I find that both the parties were fully aware that the dispute pertained to a shutter and the entire evidence by both sides was led on this aspect. Moreover, this point was not taken up either before the Rent Controller or the Appellate Authority which clearly goes to show that the parties had acquiesced to the fact that the dispute pertained to the fixation of a shutter and not to a door.
5. The second limb of this very argument that has been projected by Mr. Sarin is that there was no evidence to prove that it was the tenant who had affixed the shutter in the shop in question. I find myself unable to agree. This matter was considered by the authorities below and a finding was recorded that as the alteration had admittedly been carried out during the subsistence of the tenancy and as there was no plea in the written statement that the alterations had been made by the landlord, the statement of the landlord had to be accepted as correct. It is significant that in the written statement the positive stand of the tenant was that no alterations or constructions had been made but in the course of the evidence a deviant stand has been projected. In the statement of the landlord and of his expert witness Parmod Bhardwaj the positive case was that the shutter has been affixed by the tenant about 3/4 years prior to the date of the recording of the evidence. This part of the landlord's evidence finds support from the evidence of the tenant himself and his witness Manmohan Chopra (RW4) who admitted that structural alterations had been made by using brick and mortar and a shutter had been installed but the only explanation given was that these alterations had been made by the landlord. I, therefore, find that the stand in the written statement was at variance with theevidence recorded at the instance of the tenant. The positive stand of the tenant in the written statement that no alteration had been made is falsified by the evidence produced by him where he has admitted that alteration had been made, but by the landlord. I am, therefore, of the opinion that the alterations had been made by the landlord (tenant?) and the findings of the authorities below are affirmed.
6. The next argument urged by Mr, Sarin was that even assuming that the shutter had been affixed by the tenant, the rent note authorised this alteration. He has referred to clause 2 of the agreement in question which reads as under :
'That the tenant Shri Narinder Nath Suri will be wholly responsible for all kinds of breakage and alteration in the shop, he will make the payment of cost of breakage or alteration from his own pocket. He will not demand any kind of cost from the landowner of the said shop.'
This matter has also been considered by the authorities below and a finding has been recorded that this clause only authorised minor alterations so as to make the shop suitable for the purpose for which it had been let out and it did not permit the tenant to make any structural changes. It is the common case of the parties that the shop had been let out for being used as a beauty saloon and in that situation, if some minor alter-ations were required to be made so as to make it suitable for that purpose, the tenant was authorised to do so at his own cost. I am of the view that in the background of the evidence adduced the clause quoted above did not authorise the tenant to make all or any kind of structural change.
7. The final argument of Mr. Sarin is that it must be proved by the landlord that not only the structural alterations had been made by the tenant but also that these had impaired the value and utility of the property in question. He has urged that there is no evidence to show that the second requirement had also been fulfilled. For this purpose he has relied on M/s. Parkash Chand HarnamSingh's case (1978(81) Pun LR 196), Om Pal's case (1988 HRR 614) (SC), Darshan Kumar's case (1991 (2) 100 Pun LR 412) and Bhup-inder Singh's case (1992 (2) Rent LR 243) (Punj & Bar) (supra). In Om Pal's case (supra), the broad proposition with regard to S. 13(2)(iii) have been spelt out and it has been held by the Hon'ble Supreme Court that 'not every construction or alteration would result in material impairment to the value and utility of the building, but such impairment must be of a material nature i.e. of a substantial and. significant nature.' The Hon'ble Supreme Court further went on to say that the construction of a Chabutra, almirah, opening of window or closing of a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations would not materially alter the building. In Om Pal's case the question was as to whether a wall partitioning a room which did not even go up to the roof for the purpose of partition of two rooms and the extension of a pre-existing tin shed were structures which materially altered the property in question. The Supreme Court observed that there was no material alteration as both the walls as well as the tin structure could be removed without causing any damage to the property in question. In Messrs Parkash Chand Harnam Singh's case (supra) the question was as to whether by removing a door from one place and fixing it in the verandah would constitute a material alteration. The Division Bench held against the landlord holding that merely removing Of the door from one place and fixing it up in the verandah would not amount to impairment of the value and utility of the premises. In Bhupinder Singh and Darshan Kumar's cases (supra) on which primary reliance has been placed by Mr. Sarin, one of the questions posed before the Division Bench was as to whether an unauthorised construction made by a tenant would ipso facto amount to material impairment of the value and utility of the demised premises or whether the landlord was, in addition, required to prove that such a construction had so impaired the value and utility thereof. The Division Bench held that it was the landlord who had to proveby adducing evidence that there: had been material impairment of the value-and utility of the demised premises and merely because an unauthorised construction had been made that would not by itself result in that effect. The Court, however, found that though the burden of proving the issue lay on the landlord yet the burden of proof was very light and it was the duty of the court to draw its conclusions in the facts and circumstances of a case.
8. From a reading of the various authorities produced by Mr. Sarin, it is clear that not all or every alteration could be said to have impaired the value and utility of the demised premises but each case must be decided on its Own facts on the basis of the . evidence produced by the parties. The authorities cited make a distinction between an alteration simpliciter that can be removed easily and those which have an element of permanency. It is the latter eventuality that the courts have found that such alterations do impair the value and utility of the demised premises.
9. Mr. Cheema, on the other hand, has placed reliance on Chater Sain v. Bishanlal (1976) 78 Pun LR 174, Narain Singh v. Bakson Laboratories (1981) 2 Ren CR 237: (AIR 1982 Punj & Har 55) and Vipin Kumar v. Roshan Lal Arora (1993) 3 JT(SC) 171, to argue that by including the verandah into the shop a material impairment had been made. In Chatar Sain's case (supra), this court held that the inclusion of a verandah into a shop was a material alteration which had the effect of impairing its value and utility and the act of the tenant therefore fell within the ambit of S. 13(2)(iii) of the Act. It is also to be noted that this authority was specifically referred to in Messrs Parkash Chand Harnam Singh's case (1979 (81) Pun LR 196) (supra) and the same was not doubted though it was distinguished. Chatar Sain's case however was specifically approved by the Division Bench in Narain Singh's case (supra). The specific question posed before the Division Bench on a reference was 'whether the unauthorised permanent conversion of verandahs into rooms and the installation of adoor by a tenant are acts likely to impair materially the value and utility of the demised premises within the meaning of S. 13(2)(iii) of the Act.....'.The Division Bench decided two matters in the course of its judgment; firstly, merely because the structural change that had been made by the landlord to seek the eviction of the tenant on the ground that the value and the utility of the premises in dispute has been effected, was reversible in the sense that the structural alterations could be removed did not preclude the landlord from succeeding and, secondly while approving Chatar Sain's case (supra) held that the act of enclosing a verandah and affixing a door on the outer wall was a structural change which brought the tenant within the ambit of S. 13(2)(iii). Mr. Cheema has placed primary reliance on the second question decided and in support of this argument and has also drawn my attention to the evidence adduced which I now proceed to consider. It is clear to me that the shutter in question had been affixed by the tenant after he had been so inducted. This is apparent from the evidence which has been adduced and the finding of fact recorded does not warrant any interference at the revisional stage. It is also clear that the said alteration had materially altered/impaired the value of the property -- firstly on the basis of the reasoning given in Chatar Sain's case (supra); and secondly from areading of the evidence in the present case. In this connection, the evidence and the report of Parmod Bhardwaj, Engineer (AW2) is relevant. In the report which is Exhibit AW 2/1 it has been clearly stated that the structure had been constructed to suit the requirements of the tenant without caring for the original shape of the building and structurally its value had been considerably impaired. He has also stated that the front verandah had been immersed in the shop by fixing the shutter with cement and mortar which seemed to be 3/4 years old- This assertion of Mr. Parmod Bhardwaj is endorsed by Shri Manmohan Chopra (RW 4) one of the tenant witnesses, who has clearly slated in his examination-in-chief that the shutter could not be removed, meaning thereby that it was a permanent fixture. Theview that I have taken finds support from Om Parkash's case (supra). The Hon'ble Supreme Court held that those alterations which make changes in the front and structure of the building would provide a ground for the tenant's eviction, as this would have the effect of changing the form and character of the demised premises. In Vipin Kumar's case (supra) the Hon'ble Supreme Court was called upon to decide as to whether the construction of a wall in the verandah and the putting up of a door on that wall amounted to the material impairment of the building. The question was answered in favour of the landlord and it was observed that the impairment of the value of the building has to be seen from the point of view of the landlord and not that of the tenant. The argument projected on behalf of the tenant that it was for the landlord to prove as to how the construction had materially affected the building was repelled by holding that the material impairment was 'an inferential fact to be deduced from proved facts'. The Court also observed that concurrent findings of fact recorded by the authorities below should not be lightly interfered with at the revisional stage. This case to my mind completely covers the controversy in favour of thelandlord.
10. It is, therefore, clear that the findings recorded by the Rent Controller as well as the Appellate Authority on the issue in question have the sanction of the evidence adduced and call for no interference in revision.
11. For the reasons recorded above, the present petition is dismissed with no order as to costs. The tenant is, however, allowed time till 15th July, 1993 to vacate the premises provided he deposits all the arrears of rent and also the advance rent up to that date and also files an undertaking before the Rent Controller to vacate the premises on the expiry of that period within a period of one month from today.
12. Petition dismissed.