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, Advocate for the petitioner. Mr.Rakesh Malik, Advocate for the respondent. Mehinder Singh Sullar, J. This revision petition has been directed by Ram Avtar son of Amilal petitioner-tenant (hereinafter to be referred as “the tenant) against the impugned order dated 11.4.2005, whereby the Rent Controller accepted the ejectment petition filed by Lekh Raj son of Tota Ram respondent-landlord (hereinafter to be referred as “the landlord”), directed him (tenant) to hand over the vacant possession of the demised premises to the landlord and the judgment dated 25.8.2006, vide which the Appellate Authority has dismissed his appeal (tenant's) as well. The facts, barely needed, relevant for disposal of present revision petition and emanating from the record, are that originally, the landlord filed an ejectment petition against the tenant from the demised premises i.e. the shop in dispute on the following grounds:- i) That the tenant has failed to pay the rent at the rate Civil Revision No.118 of 2007 2 of Rs.220/- per month besides house tax @ 12½ % from 1.4.2000 to 31.7.2000 despite repeated demands. ii) That the disputed premises let out as a shop to the tenant but the same is being used by him as a godown without the written or oral permission of the landlord and the disputed shop is being used by the tenant for a purpose other than for which it was let out and thus he has deteriorated the value and utility of the same by constantly closing it as air and light does not enter into the same due to its closure. iii)That in the eastern side of the disputed shop, there is a pukhta verandah which is covered by roof made of bricks with mortar. The tenant has constructed pukhta almirah marked by letters 'IJ' in the site plan in the walls of the disputed shop and has also started construction in the verandah with a view to merge the verandah into the shop by fixing a shutter in the verandah and by removing its wooden door and thus he has blocked the air and light by such construction into the disputed premises and, therefore, he has materially impaired its value and utility. iv)That the disputed shop is in dilapidated condition. The plaster of the walls of the same has come off. The bricks have also come off and there is Civil Revision No.118 of 2007 3 dumpness in the walls as well. There are numerous cracks in the disputed shop. Its roof is in a crumbling state, its walls and roof have become so weak that the same are likely to fall at any time and the disputed shop is in such a dilapidated condition that it requires immediate demolition and reconstruction. The roof of the verandah at point 'X' shown in the site plan has already been fallen down. The landlord asked the tenant many times to vacate the disputed shop, but in vain which necessitated him (landlord) to file the present eviction petition. On the basis of the aforesaid grounds, the landlord filed the ejectment petition against the tenant, in the manner indicated here-in-above. The tenant contested the claim of the landlord and filed the written statement in which the relationship of landlord and tenant between the parties was admitted. The entire rent was stated to have already been paid to the landlord and the payment of house tax was denied. According to the tenant, the demised premises were taken on rent for the godown vide rent note executed on 7.10.2008. The value and utility of the shop in dispute was stated to have not materially been diminished. It will not be out of place to mention here that the tenant has stoutly denied all other allegations (grounds) contained in the ejectment petition and prayed for its dismissal. In the wake of pleadings of the parties, the Rent Controller framed the following issues vide order dated 4.12.2000:- Civil Revision No.118 of 2007 4 1. Whether the respondent is liable to pay house tax at the rate of 12½ % in addition to rent?OPP 2. Whether the respondent is in arrears of rent for the period 1.4.2000 to 31.7.2000, if so its effect?OPP 3. Whether the respondent has changed the user of the disputed property, if so its effect?OPP 4. Whether the respondent has material altered the structure of the disputed property causing material impaired in its value and utility, if so its effect?OPP 5. Whether the shop in dispute is in dilapidated condition?OPP 6. Relief. Thereafter, the case was slated for evidence of the landlord. The parties produced oral as well as documentary evidence in order to substantiate their respective pleaded cases. The Rent Controller accepted the ejectment petition and ordered the ejectment of the tenant vide impugned order dated 11.4.2005. The appeal filed by him was also dismissed by the Appellate Authority vide impugned judgment dated 25.8.2006. Having lost the legal battle, the tenant has filed the present revision petition challenging the concurrent finding recorded by the Courts below. It is conceded position at the bar that the only ground survives and requires adjudication in this petition is as to whether the construction made by the tenant has materially impaired the value and utility of demised premises, which was subject matter Civil Revision No.118 of 2007 5 under issue No.4. That is how I am seized of the matter. Having heard the learned counsel for the parties, having gone through the record of the case and after bestowal of thoughts over the entire matter, to me, as there is no merit, therefore, the present revision petition deserves to be dismissed for the reasons mentioned here-in-below. As indicated earlier, the Appellate Authority and the Rent Controller having considered the oral as well as documentary evidence on record came to the definite conclusion that the tenant has made construction materially impairing the value and utility of the demised premises and ordered the ejectment of the tenant in this respect. However, the celebrated argument of learned counsel for the tenant that the Courts below have wrongly placed reliance upon the report (which was submitted before summoning him) and evidence of the Local Commissioner, because no prior notice was given to him by the Local Commissioner before inspecting the spot, is not only devoid of merit but misplaced as well, because the tenant has himself admitted the construction made by him. Therefore, there appears to be no infirmity in the evidence of Local Commissioner in this respect. Moreover, the Local Commissioner has only depicted the existence of the construction, particularly when the further case of the tenant was that the construction did not change materially, the value and utility of demised premises. He has failed to point out how his case was prejudice in this behalf. Not only that, the tenant has admitted the construction, Civil Revision No.118 of 2007 6 the landlord has also examined Subhash Chand, Deed-Writer, who has prepared the site plan Ex.P5 of the existing construction of the demised premises in order to show the material alterations made by the tenant. Vijay Sharma, Advocate, who was appointed as Local Commissioner also visited the spot and gave his report Ex.P1 and site plan prepared by him is Ex.P2, which reveals that the tenant has fixed two pillars on the eastern side and on the northern side a wall of old bricks has been constructed, which was freshly white washed, part of the roof of verandah was shown as broken and it was a godown of Tent House. On the southern side, two pacca shelves (Tands) have been constructed. Similarly, one shelf (Tand) has been constructed on the western side, which was constructed by placing iron garder and stone slabs. Meaning thereby, it stands proved on record that in all the three shelves, pacca garder has been used, besides other constructions mentioned here-in-above. The walls have also been constructed to support these shelves. The existing position is also depicted in the photographs proved by AW3 Rahim Sagar. The landlord while appearing as RW4 has also tendered his affidavit Ex.RW4 corroborated his pleaded case on all vital counts and specifically maintained that the construction, material alterations made by the tenant has materially impaired the value and utility of the building and simple denial by tenant is not sufficient in this context. Thus, it would be seen that if entire oral as well as documentary evidence brought on record by the landlord is put together, then conclusion is inescapable that it stands proved on Civil Revision No.118 of 2007 7 record that the tenant has constructed the wall and pacca shelves with iron garder and altered the shape of demised premises and contrary argument of learned counsel for the tenant stricto-sensu deserves to be and are hereby repelled. Faced with this situation, the other argument of learned counsel for the tenant that assuming for the sake of argument, the construction is proved on record and admitted by the tenant, even then the same has not materially impaired the value and utility of the demised premises, is neither tenable nor the observations of Hon'ble Supreme Court of India in Waryam Singh Vs. Baldev Singh 2002 (2) R.C.R. 594 and this Court in Amar Nath Versus Guru Ramdass Textile Mills 2002 (1) RCR (Rent) 595 are at all applicable to the facts of the present case. The crux of the law laid down in the aforesaid judgments is that not only that the landlord has to prove that the tenant has made alterations and additions, he has also further to prove that it affected the value and utility of the building and if the construction is minor one and can be removed by spending few amount, the same would not be considered as material alterations in the value or utility of the property. Possibly, no one can dispute about the aforesaid observations, but to my mind, the same would not come to the rescue of the tenant because as discussed here-in-above, it stands proved on record by cogent evidence coupled with the admission of the tenant that besides other alterations, the pacca wall and structure have been constructed by putting slabs and garder, which inter-alia, Civil Revision No.118 of 2007 8 interrupted the free flow of air and light and has, thus, materially impaired the value and utility of the building. Moreover, there was a clear stipulation in the rent note, which is clear from the extract of the register of Deed Writer Ex.RW3/A that the tenant will not make any repair, but still he made alterations without the consent of the landlord. The impairment of value and utility of the building is to be seen not from the angle of the tenant but from the view point of the landlord. Hence, to me, as the construction and alterations made by the tenant without the permission of the landlord has materially impaired the value and utility of the building, therefore, he is liable to be evicted. The authorities below have rightly accepted the ejectment petition of the landlord in this context and no fault whatsoever can be found with the same. There is another aspect of the matter which can be viewed from a different angle. Section 15 (5) of the Act postulates that the decision of the appellate authority and subject to such decision, the order of the Controller shall be final and shall not be liable to be called in question in any court of law except as provided in sub-section (6) of this section, which further posits that the High Court as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under` this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. Civil Revision No.118 of 2007 9 It means, the scope of the revisional jurisdiction of this Court is very limited and is confined only to testing the legality or propriety of the orders under revision. It is now well settled proposition of law that this Court cannot legally appreciate or re- appreciate the evidence dictated by mere inclination to take a different view of the facts. It is not the province of this Court to dislodge the concurrent findings recorded by the courts below unless the same are perverse, arbitrary, absurd, not based on evidence and without jurisdiction. As stated above, in the wake of appraisal and appreciation of oral as well as documentary evidence brought on record by the parties, both the courts below have recorded a finding of fact based on evidence that alteration and construction made by the tenant in fact have materially impaired the value and utility of the building and such finding cannot possibly be set aside in the exercise of revisional jurisdiction of this Court. No such patent illegality or irregularity has been pointed out by the learned counsel for the tenant in the impugned orders. Thus, seen from any angle, to me, the courts below have rightly appreciated the evidence brought on record and came to the correct conclusion that the tenant has made alterations and constructions materially impairing the value and utility of the building and have rightly passed the impugned orders which deserve to be and are hereby maintained in the obtaining circumstances of the case. No other point worth consideration has been urged or Civil Revision No.118 of 2007 10 pressed by learned counsel for the parties. In the light of the aforesaid reasons, as there is no merit, therefore, the present petition is hereby dismissed with no order as to costs. (Mehinder Singh Sullar) November 3,2009 Judge AS