IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6497 of 2007 Date of decision: 21st November, 2008 Dev Samaj Society … Petitioner Versus Mohinder Singh and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jagdish Manchanda, Advocate for the petitioner. Mr. U.K. Agnihotri, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. Dev Samaj Society registered under the Societies Registration Act, through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City preferred a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for eviction of respondent No.1 – tenant. In the eviction petition, it was stated that the petitioner – society, being a registered society, vide appropriate resolution passed, was competent to file eviction petition through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City. It was stated that the petitioner – society was owner and landlord of the demised premises. It was further stated that respondent Firm through its Proprietor Mohinder Singh was tenant of the shop and was paying monthly rent @ Rs.225/- besides electricity and water charges. Following grounds were pleaded for seeking ejectment of the tenant: (a) Respondents have failed to pay or tender the rent for the shop to the landlord since November, 2000 till date in spite of requests and demands made by the landlord petitioner; Civil Revision No.6497 of 2007 (b) Respondents, without the written consent of the landlord, have broken the floor of the tenanted shop and raised its level by constructing the floor afresh and thereby impaired the value and utility of the shop in question; (c) Respondents, without the written consent of the landlord, have also broken the ceiling and roof of the shop by damaging the walls of the shops, raised the level of the roof and ceiling, thereby made structural changes in the demised shop; (d) That the respondents, without the written consent of the landlord, affixed a new shutter in the shop after removing the earlier fixed iron shutter. This act of the tenant-respondents has also impaired the value and utility of the demised premises. Therefore on this ground also, eviction was sought. Notice was issued by the Court. Respondents caused their appearance. Written statement was submitted. In the same, taking preliminary objections, it was stated that the petition is not maintainable. All averments and pleadings made in the eviction petition, on merit were denied. However, the fact of payment of rent by the tenant regularly was admitted. Respondents denied that the earlier fixed shutter was removed and new one was fixed. It was stated that in fact the petitioner has concealed all the true and material facts. An old structure was already in existence on the roof of all the shops and the landlord approached all the tenants to demolish the old structure, as Dev Samaj Society required to build suitable building in place of the old structure. All the tenants, including the respondents agreed and the old structure was demolished. It was further stated that all the tenants requested the petitioner-landlord to raise the level of floors of their shops as in rainy season, water used to enter in the shops due to rise of road level. Landlord 2 Civil Revision No.6497 of 2007 took about two months to complete this entire process of raising the floor level of shops. Thus, the question of taking written consent did not arise. Replication to the written statement was filed. Averments made in the eviction petition were reiterated. The Court had drawn following issues: 1. Whether the respondents have impaired the value and utility of the shop in question, if so, in what manner and to what effect? OPP 2. Whether the present petition is not maintainable? OPR 3. Relief. Sudarshan Kumar appeared as PW-1. He tendered Rules and Regulations of Dev Samaj (Ex.P-1), copy of memorandum (Ex.P-2), copy of extract of proceedings book (Ex.P-3), copy of resolution dated 11.02.1999 (Ex. P-4), copy of certificate of registration (Ex.P-5) and copy of resolution (Ex.P-6). Tenant examined three witnesses. He himself appeared as RW-1 and also examined two witnesses. He also tendered coyp of show cause notice (RW-3/A). Petitioner had led no evidence in rebuttal. Rent Controller examined the documents and came to the conclusion that Sudarshan Kumar was duly authorized person to prefer the eviction petition and that the landlord has failed to prove that the alleged structural change of the premises in question has been done by the respondent-tenant without its prior consent. Regarding impairment in utility and value of the premises in question, Rent Controller has held as under: “18. Even, it is assumed that in sake of arguments the alleged construction was made by the petitioner even then question would be whether this construction has impaired the utility and value of the premises in question or not. In my 3 Civil Revision No.6497 of 2007 considered view the answer of this query must be in negative as far as facts of this case are concerned. There is sufficient evidence on record that the level of the road situated in front of the shop is higher than the base floor of the shop in question. It is also on record that due to rain, the water of the main road used to enter into the shop. If it is so, then certainly by raising level of the shop has enhanced its value and utility. Had the level of the shop not been raised, then certainly value and utility of the shop would be in the negative side which was not beneficial to the landlord as well as the tenant. By raising level of the shop, the chances of loges likely to be suffered by the petitioner as well as respondents has been overcome because if water enters into the shop, it must cause loss and damage to whole building and on the other hand can also cause damage to the goods kept by the tenant therein. … …” Rent Controller concluded the issue in favour of the tenant and against the landlord. Aggrieved against the same, landlord filed an appeal before the Appellate Authority. Appellate Authority noticed that admittedly, there are about dozen of shops belonging to appellant which are under tenancy of several persons including the respondent. It further noticed the admitted fact that level of shop and roof of other dozen of shops was raised somewhere in May 2000 and the business activities in the said shops remained closed for about two months. The Appellate Authority further held that it cannot be accepted that floor and roof levels almost of all the shops would be raised by the tenants to the same height at the same time. The Appellate Authority examined the various judgments relied upon by the landlord, discussed their ratio and on facts, affirmed the findings of the Rent Controller and held as under: 4 Civil Revision No.6497 of 2007 “11. The landlord has failed to establish that the alterations were carried out without his consent by the tenant or same has materially impaired the value and utility of the premises. On re-appraisal of the entire evidence, there is no justification to take a different view from the one which has been taken by the learned Trial Court. Accordingly, findings of the Trial Court are confirmed on all the issues.” I have heard counsel for the parties. Two courts below have given concurrent finding of fact that the landlord has failed to prove that the alleged structural changes of the premises in question has been done by the respondent-tenant. Concurrent findings of two courts below, based upon documentary and oral evidence, cannot be said to be perverse. Therefore, I have no reason to disturb the findings of the two courts below. Hence, there is no merit in the present petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 21, 2008 rps 5