IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 118 of 2006. Reserved on: 16.09.2011. Decided on: 23.09.2011. ___________________________________________ Kartaro Devi. … Petitioner. Versus Anil Sharma. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondent : Mr. Subhash Sharma, Advocate. Rajiv Sharma, J.: This revision petition is directed against the judgment dated 4.7.2006 of the learned Appellate Authority (Fast Track Court), Shimla passed in Rent Appeal No.6-S/14 of 2005/04. 2. Material facts necessary for the adjudication of this petition are that the respondent/landlord (hereinafter referred to 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - as “the landlord” for convenience sake) has instituted a petition seeking eviction of the petitioner/tenant (hereinafter referred to as “the tenant” for brevity sake) from the demised premises on the ground that she, without the written consent of the landlord, has committed such acts as were likely to impair materially the value or utility of the building/premises. The tenant has undertaken construction work relating to extension of shop for installing an iron shutter and putting wooden partition inside the shop with a purpose to convert the rear portion in to a residential one. She has covered the floor with stones and tiles which were quite heavy and considering the old condition of the building were most unsuitable as extra weight has been added. According to the landlord, the building could collapse as it has developed cracks. 3. The petition was contested by the tenant. The tenant has denied that any addition or alteration has been made which could impair materially the value or utility of the premises. According to her, she has carried out necessary repairs in the shape of fixing glasses in the windows, changing the broken ceiling and did white wash and change of furniture. 4. The issues were framed by the learned Rent Controller on 20.7.2001. The learned Rent Controller dismissed the petition on 19.11.2004. Landlord preferred an appeal before - 3 - the Appellate Authority (Fast Track Court), Shimla. He allowed the same on 4.7.2006. Hence, this petition. 5. Mr. Bhupender Gupta, learned Senior Advocate representing the tenant has strenuously argued that the learned first appellate Court has mis-appreciated and misconstrued the evidence led by the parties while coming to the conclusion that the tenant has carried out the additions and alterations which could materially impair the value or utility of the building. According to him, the findings recorded by the learned Rent Controller have been reversed by the first Appellate Court without discussing the evidence led by the parties. He then argued that the photographs relied upon by the Appellate Authority were not duly proved, since the photographer, who has taken these pictures was not examined. He further argued that his client has only undertaken minor repairs of the premises in question. He has also contended that the repairs carried out by his client have not impaired the value or utility of the building. He lastly argued that the basic structure of the building has remained the same and there is no impairment of the value or utility of the building. 6. Mr. Subhash Sharma, learned counsel for the landlord has supported the judgment passed by learned Appellate Authority. According to him, since the tenant has not objected to the exhibiting of the photographs, she is estopped - 4 - from assailing the same now. According to him, the photographs were admissible in evidence. As per him, the tenant has made material additions and alterations, which have impaired materially the value or utility of the building. According to Mr. Subhash Sharma, by extension of the front portion of the shop and by putting iron shutter in the front portion the tenant has changed the basic structure of the shop. The tenant has also constructed a parchhatti. He lastly contended that the tenant has laid stones and tiles on floor which has added weight to the building. According to him, the building has developed cracks. 7. I have heard learned counsel for the parties and gone through the pleadings and evidence carefully. 8. Landlord has appeared as PW-2. According to him, the premises were let out to the tenant at the rate of ` 400/- per annum. The tenant has carried out construction work. The tenant has raised the roof by 3 feet and has put tiles and cement on the floor. She has extended the roof by 1 foot and has constructed parchhatti. She has also made wooden partition. She has affixed shutter instead of wooden planks. The building is old and it has developed cracks. He has filed complaint with Municipal Corporation, Shimla vide Ex.PW-2/A. He has proved on record the rough sketch, i.e. Ex.PW-2/B. According to him, the tenant has not sought any permission - 5 - either from him or from the Municipal Corporation, Shimla while undertaking the construction activities. He could not disclose in cross-examination what action has been taken by the Municipal Corporation, Shimla on Ex.PW-2/A. He has also admitted in cross-examination that no report was lodged with the police about the construction raised by the tenant. He has denied the suggestion that the tenant has carried out white wash in the year 1999. He has denied the suggestion that the tiles and shutter were affixed prior in time. He has admitted that he is also running a Halwai shop. 9. PW-2/A, Jai Raj has testified that the tenant has carried out renovations, due to which cracks have developed on the rear side of the building. She has put shutter during the renovation and has also laid tiles on the floor. She has extended the shop and has also raised the same by 3 feet. He has admitted in cross-examination that the building is old and he had been seeing the same for the last about 40-42 years. He has admitted that the building falls in the territorial jurisdiction of Municipal Corporation, Shimla. 10. PW-1, Smt. Shashi Thakur though appeared, but has deposed that she has not brought the record since it was not summoned. According to her diary No.2372 has not been given by A.P. Branch. According to her a document is diarised at - 6 - three places, i.e. Commissioner Office, A.P. Branch and Head Office. 11. RW-1, Jaishe Ram has deposed that he has been seeing the building from the year 1985 and it was in the same condition. The tenant has carried out white wash in the shop in the year 1999 and also changed the showcase and has not carried out any other renovation. In cross-examination, he has admitted that the tenant has put shutter. Volunteered, it was in existence prior in time. He has denied the suggestion that the shutter was replaced in 1999. He has also denied that the tiles were laid on the floor and roof was repaired by the tenant. He has denied the suggestion that the shop of the tenant was 3 feet ahead of other shops. He has deposed that photographs Ex.PW- 2/C-15 to Ex.PW-2/C-17 are of the same shop. 12. RW-2, Sandeep Kumar is General Attorney of the tenant. He has proved on record the copy of General Power of Attorney, Ex.RW-2/A. According to him, in the year 1999 showcase was constructed and furniture was also made. As per him, white washing was also done. The shutter was in existence for the last 10-15 years in the shop. Windows on the rear portion of the shop were also repaired. Kota stone has been laid on the floor which was 10-15 years old. In the ceiling cement sheets were used, which are same as used by the landlord. No additions and alterations were carried out. The basic structure - 7 - of the building remains the same. The tenant has not received any notice from the Municipal Corporation, Shimla. In cross- examination he deposed that the shop is extended, but later on said he did not know when it was extended. 13. This is the oral evidence led by the parties. 14. The landlord has also got exhibited the photographs Ex.PW-2/C-1 to Ex.PW-2/C-20 with negatives Ex.PW-2/C-21 to Ex.PW-2/C-22 and has also proved the report made to the Municipal Corporation, Shimla vide Ex.PW-2/A. 15. The learned Rent Controller has returned the findings that the landlord has failed to prove any addition or alteration being carried out by the tenant, which could materially impair the value or utility of the premises. According to him, no expert evidence has been produced by the landlord to prove that the tenant has carried out construction, which could materially impair the value of the premises. According to him, since the photographer has not been produced, the photographs Ex.PW- 2/C-1 to Ex.PW-2/C-20 could not be taken into consideration. 16. However, the learned appellate court has relied upon the photographs Ex.PW-2/C-15 to Ex.PW-2/C-17. The Court is of the considered view that it was necessary for the landlord to have examined the photographer. The landlord has also moved an application under Order 41 Rule 27 of the Code of Civil Procedure for summoning the photographer, who took - 8 - the photograph, the official from Municipal Corporation, Shimla for proving the complaint made by the complainant and the expert, i.e. an Engineer who could examine and give report qua unauthorized construction work of additions and alterations done by the tenant. This application was rejected by the learned Appellate Authority. The mere filing of application under Order 41 Rule 27 of the Code of Civil Procedure makes it abundantly clear that the landlord has tried to fill up the lacunae by making a prayer for summoning the photographer who has taken the photographs, the official from the Municipal Corporation, Shimla to prove the complaint Ex.PW-2/A and also an expert to prove whether the repairs undertaken by the tenant have materially impaired the value or utility of the building. 17. It was necessary, as noticed above, for the landlord to prove the photographs by summoning the photographer, who has clicked the photographs; otherwise, such photographs were not admissible in evidence. It was also necessary for the landlord to prove the complaint Ex.PW-2/A since the sole question to be decided by both the Courts below was whether the tenant has undertaken the repairs which had materially impaired the value or utility of the building. It was also necessary for him to examine an expert to see the nature of construction carried out by the tenant. He, being an expert, could give opinion whether the construction carried out by the - 9 - tenant has altered the basis structure or not. The learned Appellate Authority though has dismissed the application preferred under Order 41 Rule 27 of the Code of Civil Procedure, but, has relied upon photographs Ex.PW-2/C-15 to Ex. PW-2/C-17. 18. Mr. Subhash Sharma, learned counsel for the landlord has also relied upon photographs Ex.PW-2/C-15 to Ex.PW-2/C-17. What can be seen from these photographs is that ceiling was being changed but it could not be made out from these photographs that parchatti has been constructed. Wooden partition is also not visible. What can be seen from the photographs is that the iron shutter has been fixed in place of wooden planks. The picture does not show that any tiles or stones have been laid recently. 19. Merely changing the ceiling of the shop cannot be said to have materially impaired the value or utility of the building. The putting up of the stones and tiles on a katcha portion will not also amount to material addition or alteration which could impair the value or utility of the building. There is no evidence as far as the wooden partition is concerned. Even if there had been wooden partition, this being temporary structure could always be removed. The putting up of the iron shutter in place of wooden planks will also not amount to material additions and alterations, which could have materially impaired - 10 - the value or utility of the premises. This being a temporary structure could always be removed. What has to be seen is whether the construction carried out by the tenant has changed the basic structure of the building or not. In the instant case, the changing of ceiling, fixing of wooden partition, fixing tiles and stones and changing the shutter will not change the basic structure of the building. It is not every addition or alteration, but only that addition or alteration, which impairs the value or utility of the building, will constitute sufficient cause for eviction of the tenant, that too, if carried out without the consent of the landlord. 20. The expression ‘material alteration’ has been explained in detail by their Lordships of the Hon’ble Supreme Court in Om Prakash Versus Amar Singh and Others, (1987) 1 SCC 458 as under (paras 3, 5, 6 and 7):- “There is no dispute that the demised premises is subject to the provisions of the U.P. Cantonment Rent Control Act 1952 (hereinafter referred to as the Act). Section 14 of the Act imposes restriction on the landlords' right to file suit for eviction of a tenant from any accommodation except on one or more of the grounds specified therein. Section 14(c) relevant for the purposes of this case reads as under : "14: Restrictions on eviction- No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his - 11 - eviction from any accommodation except on one or more of the following grounds, namely; c) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the Court has materially altered the accommodation or is likely substantially to diminish its value;" The Act does not define either the word 'materially' or the word 'altered'. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise Oxford Dictionary defines the word 'alter' as change in character, position' "materially" as an adverb means 'important' essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word 'alter' is 'to make change, to modify, to change, change of a thing from one form and set to another. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to these two words show that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity". It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Das Shah v. Bishun Das, this Court considering the expression 'material alterations' occurring in Section 3(1)(c), U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed: - 12 - "Without attempting to lay down any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the front and structure of the premises." In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and - 13 - structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions-which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S. B. Mathur v. K. P. Gupta, construction of temporary wail enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature, was held not to constitute material alteration of the accommodation. In Dr. J. G. Gupta v. Bodh Mal, a Division Bench of the High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom did not constitute material alterations as the same were temporary and they could be removed without causing any damage to the accommodation. In Sita Ram Sharan v. Johri Mal, 1972 All LJ 317 : (AIR 1972 All 317) a Full Bench held that construction which converted the tenanted premises into double storey structure, materially altered the accommodation. Another Division Bench of the High Court in Baldev Dass v. Ram Khilawan held that a partition wall in a shop converting the same into two portions for the convenient use of the same did not amount to material alteration. These decisions were rendered on the facts available on the record of those cases. In deciding this question the Court has to consider whether the constructions have been made with the consent of the landlord and if so, whether those constructions are of such substantial nature which make material alterations in the accommodation. The findings of the Court regarding constructions would be finding of fact, but the question whether - 14 - the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles. In the instant case the disputed constructions which the High Court has found to be 'material alteration' consists of a partition wall of 6 feet height in a hall converting the same into two rooms and a tin shed marked by letters CDGH on the Eastern side on an open land adjacent to the accommodation. The trial Court held that the partition wall did not change the front or structure of the accommodation, it being temporary in nature, did not constitute material alterations in the accommodation. This finding of the trial court was not challenged by the landlord before the Civil Judge. But the High Court has held that the partition wall constituted 'material alteration'. The findings recorded by the trial Court and the relevant evidence placed before us by the parties clearly show that the partition wall did not actually partition the hall converting the same permanently into two rooms. The partition wall was, made without digging any foundation of the floor of the room nor it touched the ceiling instead; it was a temporary wall of 6 feet height converting the big hall into two portions for its convenient use,, it could be removed at any time without causing any damage to the building. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation.” 21. In Waryam Singh Versus Baldev Singh, (2003) 1 SCC 59, their Lordships of the Hon’ble Supreme Court have held - 15 - that enclosing verandah by constructing walls and placing a rolling shutter in front, in themselves not sufficient to justify inference that value or utility has been impaired. Their Lordships have held as under (paras 11, 12, 15 and 16):- “Mr. Walia next relied upon the case of Narain Singh v. Bakson Laboratories. In that case, the tenant had enclosed the verandah on the front and back side of the building and had opened a door by breaking the wall of the room. It was held that this diminished the value of the premises. With great respect to the learned Judges concerned, we find ourselves unable to accept this proposition. As stated above it is not every addition or alteration which could be said to materially impair value or utility. It has to be proved that the value or utility has been materially impaired. Merely because some additions or alterations are made it cannot be presumed or inferred that the value or utility of the building has been impaired. This authority cannot be said to be laying down the correct proposition of law. We find support for our point of view from the case of Om Prakash v. Amar Singh. In that case, a temporary partition wall of 6 feet height was put in a big hall. This partition was made without digging any foundation on the floor and the partition did not touch the ceiling. The tenant had also extended the pre-existing tin shed on the open land by constructing a wall of mud and enclosing that wall with bamboo tatters. It was held that before a landlord could get a decree it must be established (1) that the tenant had made the construction, (2) that such construction was without the consent of the landlord, and (3) that - 16 - such construction had materially affected the premises. It was held that these three conditions were cumulative in nature and each one of them was necessary to be established before a decree of eviction could be passed. It was held that the construction which had been carried out did not materially alter the premises and that therefore no ground for eviction had been made out. Thus an order for eviction can be passed only if the landlord proves (a) that the tenant had carried out the construction, (b) that the same was without the consent of the landlord, and (c) that the value or utility had been materially impaired. In the present case, the first appellate court, on facts, concluded that the Respondent had carried out alteration by enclosing the verandah. On facts it has been held that this has been done without the consent of the appellant. The revisional court has correctly not interfered with the findings of fact. We also see no reason to take a different view on question of fact. “However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility the appellant has led no evidence at all. The submission has been that no evidence was required to be led as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case there is no proof, like in Vipin Kumar's case (supra), that frees flow of light - 17 - and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. In