CR No. 2179 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2179 of 1995 Decided on : 20-10-2008 Gurmukh Dass ....Petitioner VERSUS Daljit Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr O.P.Goel, Sr. Advocate with Ms. Priya Khurana, Advocate for the petitioner. Mr. M.L.Saggar, Sr. Advocate with Mr. G.S.Brar, Advocate for the respondent MAHESH GROVER, J This petition is directed against the order of the Appellate Authority dated 3.2.95. The petitioner is the landlord of the premises in shop bearing no. 102 situated in market no. 1 NIT, Faridabad. A petition under Section 13 of the Haryana Urban Rent Control and Eviction Act, 1973 was preferred by the petitioner seeking the eviction of the respondent-tenant primarily on two grounds:- 1. Change of user. 2. Material impairment. The respondent-tenant is the owner of the adjacent shop no. 95. It was alleged by the petitioner that the intervening wall between these two shops was demolished by the respondent-tenant in order to convert it into CR No. 2179 of 1995 2 one composite shop and this has resulted in the impairment of the value and utility of the shop, besides rendering it un-safe. The respondent-tenant did not deny the factum of the demolition of the wall rather he pleaded that the wall had been demolished by the petitioner himself at the time of inception of the tenancy. It was further pleaded that the original tenant was Gurmukh Singh and after his death in the year 1978, present respondents stepped into his shoes. It was next contended that originally the shop was given out on the monthly rent of Rs. 200/- which was subsequently reduced to Rs. 150/- per month. Learned Rent Controller framed the following issues:- “1. Whether the respondents are liable to be ejected on the ground mentioned in the petition. 2. Whether the petition is not maintainable. 3. Relief.” Thereafter on perusal of the evidence before it, learned Rent Controller determined the controversy and held that the respondent had indeed removed the wall and had impaired the utility of the building and ordered his eviction. In so far as the change of user was concerned, no evidence was led by either of the parties and therefore, that issue was rendered redundant. An appeal followed, preferred by the respondent, and the Appellate Authority came to the conclusion that the removal of the wall did not ipso facto suggest that there was impairment in the value and utility of the building and also concluded that the petitioner by his conduct had acquiesced to the respondent having removed the wall and further concluded that there was no evidence to suggest that after lapse of 20 years CR No. 2179 of 1995 3 also the building has been rendered unsafe and thereby dismissed the petition of the petitioner. Aggrieved by the findings of the Appellate Authority, the petitioner is in revision. Assailing the findings of the learned Appellate Authority, learned counsel for the petitioner contended that the shop had been let out to the respondents in the year 1968 and the wall had been demolished by Gurmukh Singh shortly before his death in the year 1978. Thereafter, the petitioner filed a suit for possession by way of ejectment of the respondents which was dismissed. Ultimately, the proceedings went up to the Hon'ble Apex Court and a finding was returned that civil suit was not maintainable as the period of 10 years has not elapsed after the construction of the shop and the petitioner thereafter filed the instant petition under Section 13 of the Act. It was contended that the conclusion of the Appellate Authority that the petitioner had acquiesced to the conduct of the respondents in demolishing the wall is incorrect, in view of the above stated facts, as the petitioner was otherwise vigilant and has been agitating the matter by way of civil suit. That apart, it was contended that once a landlord lets out the premises to a tenant, it is expected that the same would be retained and used by the tenant in the shape in which it was let out to him and in case, any changes are affected, the material impairment and effect on the utility has to be viewed from the perception of the landlord and not from that of the tenant. Mr. M.L.Saggar, Sr. Advocate appearing for the respondents has stated that there is no evidence to suggest that the value of the building has been materially impaired and the value has been adversely affected. It is further stated that a minor change will not really impair the value of the CR No. 2179 of 1995 4 building. I have heard the learned counsel for the petitioner and have perused the records. In the relationship of landlord and tenant, the agreement whether it is written or implicit and derived from the conduct of the parties, regarding the tenancy, is the bed-rock of the foundation of such a relationship. Any violation thereof tends to stiffle the very basis of such a relationship. The landlord who lets out his premises to the tenant naturally expects it to be retained by him in the same condition and manner in which it is let out. The material alterations and changes which are made in the premises even though presumably enhance the utility and value of the building but in so far as the landlord is concerned, his perception on the issue is paramount. In the instant case, there is no denial by the respondent that the wall had been demolished. There is no evidence to suggest that the petitioner had consented to such a demolition. Unfortunately, there is no evidence adduced by either of the parties to show as to what is the impact on the structure once the wall had been demolished. The petitioner has produced witnesses who have given self-serving statements and similarly, the respondents too had produced witnesses who have served the interest of the respondents, without there being any effective evidence to show as to how the removal of the wall has impaired the premises. In any eventuality it is not necessary that the impairment necessarily has to be in the shape of danger to the structure but it could also be in any other form such a financial or even effacement of the structure itself. This Court in 2003 (2) RCR (Civil) 285 titled as 'Shiv Ram (dead) CR No. 2179 of 1995 5 through Lrs versus Sham Lal and another' has observed that the construction raised by a tenant has to be judged from the point of view of the landlord and no one else. In para 25 it has been observed as under:- "Para 25 Keeping in view the above facts that there is no waiver or acquiescence on the part of the landlord with regard to the construction as also the fact the one of the room has been converted into two rooms by raising wall and a door has been put, it would amount to impairing the utility of the building even if not impairing its value. The contention of the learned counsel for the respondents that the wall can easily be removed and therefore, the alteration is in consequential is without susbtance as even if the value is not diminished the utility it to be seen from the point of view of the landlord as per the settled law. When the landlord has found that the construction raised would impair its utility it does not lie on the tenant to contend that the construction raised could easily be removed." Similarly, in 1982 (1) RLR 247 titled as ' Harbans Sharma versus Smt. Pritam Kaur' it has been observed as under:- "The rule laid down, therefore, now is that though it would be for the authorities under the Act to record a finding on the question of impairment of the value and utility but while doing so it is the point of view of the landlord and not of the tenant regarding the utility of the building which is to be kept in view." and in 2005 (1) RCR 664 titled as 'Dr. Sohan Lal Chawla versus Janki Dass Chopra' similar view was re-enforced. Accordingly, the present petition is CR No. 2179 of 1995 6 allowed and the respondent is directed to hand over the vacant premises within a period of three months from today. October 20, 2008 (Mahesh Grover) rekha Judge