CIVIL REVISION NO.2949 OF 1997 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 25, 2008 Ravi Chand Mangla .....Petitioner VERSUS Dimpal Solonia and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sachin Sood, Advocate, for the petitioner. Mr. Adarsh Jain, Advocate, for respondent Nos.1 to 7. **** RANJIT SINGH, J. The landlord-petitioner has remained unsuccessful in seeking eviction of the respondent-tenants from the demised premises and, thus, has filed this revision petition. The petitioner had let out an open space to the respondents on a monthly rent of Rs.58.26P. He sought ejectment of the respondents on the ground that they had sub-letted the premises CIVIL REVISION NO.2949 OF 1997 :{ 2 }: to respondent Nos.2 and 3 without the consent of the petitioner- landlord. The ground of non-payment of arrears of rent is also pleaded besides pleading that there is a change of user in the premises in dispute. According to the petitioner, the premises were let out with the respondents for running a saw mill but now the respondents have started manufacturing iron grills which would tantamount to change of user. It is also pleaded that the respondents have raised construction of a room and, thus, have materially impaired the value and utility of the premises. The respondents put in appearance and denied the averments made in the eviction petition. It is pleaded that there is no change of user. The allegation of sub-letting is also denied and so also the allegation of impairment of the demised premises. It is stated that the premises were let out for installing a saw mill and for carrying any type of business and hence, the change of user can not be either pleaded or urged. On the basis of stands taken by the parties, the Rent Controller framed the following issues:- “ 1. Whether the respondent No.1 is in arrears of rent if so, its effect? OPP 2. Whether the respondent No.1 has sub-let the demised premises to the respondents No.2 and 3 without the consent of the petitioner? OPP 3. Whether the respondent has materially impaired the value and utility of the building in question?OPP 4. Whether the respondents are nuisance to the neighbourhood if so its effect? OPD CIVIL REVISION NO.2949 OF 1997 :{ 3 }: 5. Whether the respondents have changed the user of the demised premises without the consent of the petitioner? OPP 6. Whether the petition is bad for mis-joinder and non- joinder of necessary parties? OPR 7. Relief.” The petitioner did not assail the finding of the Rent Controller on issue Nos.1 and 4 before the Appellate Court. He tendered the arrears of rent for a period of three years immediately after institution of the petition alongwith costs and interest. No evidence was led by the petitioner to establish nuisance and, thus, only Issue No.2 about the change of user was mainly pressed before the Court. It is pleaded that respondents had sub-let the premises to respondent No.2 who had started manufacturing iron grills on the site, which is stated to be a case of clear sub-letting. The Appellate Court found that to determine sub-letting what is required to be seen is whether the original tenant had walked out of the demised premises and had handed over its exclusive possession to the sub- tenant without the consent of the landlord. The oral testimony of the petitioner in this regard was found to have been rebutted by the evidence of Ali Sher (RW1) and respondent Richhpal Singh who appeared as RW2. It is stated by both the witnesses that the business of manufacturing grills was being run by Richhpal, respondent No.1 in the name and style of M/s Salonia Iron Engineering Works. Their version was found trust worthy in the light CIVIL REVISION NO.2949 OF 1997 :{ 4 }: of the evidence given by Sh.Har Sarup (RW4) produced by the petitioner who admitted in his cross-examination that Richhpal Singh, respondent, was working in the premises in dispute. Reference can be made to the case of Mattulal Vs. Radhe Lal, 1974 RCR 441, where the Hon'ble Supreme Court has held that High Court is not competent to interfere in the finding of fact in second appeal and that it can only correct an error of law or mixed questions of law and fact. Thus, no interference is called for in this question of fact determined by the lower Appellate Court while affirming the view taken by the Rent Controller. Coming to the aspect of material impairment about the value and utility of the premises, it is pleaded that a room at a point X on the premises has been constructed, which aspect has been admitted by the respondents. This according to the petitioner would amount to impairment and utility of the premises in dispute and, thus, the respondents would be liable to be evicted from the demised premises. It is, thus, to be seen if mere construction of a Kotha would lead to impairment on the utility and value of the tenanted premises. The Appellate Court has noticed that the petitioner himself has shown the existence of a Kotha on the demised premises and, thus, he can not be permitted to plead that this would impair the value and utility of the premises. This line of reasoning may not be appreciated in the background that admittedly the Kotha has been constructed subsequent to the tenancy. However, this fact alone would not be enough to show that this would lead to impairing the value and utility of the demised premises. Reference may be made to CIVIL REVISION NO.2949 OF 1997 :{ 5 }: the case of Smt.Harjit Kaur & Ors. Vs. Sant Ram, 2003 HRR 286. In this case, a vacant land was leased for running a saw mill, where a temporary wall and shed was constructed by a tenant to install an electric meter, necessary for running a saw mill. This Court dismissed the revision by observing that the construction being temporary in nature could be easily removed and hence the case of impairment was not proved. It is observed in the case of Smt.Kala Wati Vs. Ram Piari and others, 2005 (2) HRR 15 that each and every alteration in construction would not be such which reduced value and utility of the building and construction must be of a permanent nature sufficient to effect the utility of the demised premises. No evidence is available on the record to show that any permanent structure of such a nature has been made which would ultimately go to impair the value and utility of the premises. The judgment in the case of Shivala Damodar Dass Vs. Shankar Dass, 2003 (1) RCR 224, as relied by counsel for the petitioner, apparently is not applicable to the facts of the present case. In this case, tenant had constructed four rooms on the rented land without permission of the landlord. It was found that the construction on vacant land would itself impair the value and utility of the vacant land and the tenant was liable to be evicted. In the instant case, one Kotha alone has been constructed just to run the saw mill etc. It is also required to be noticed that the tenanted premises were leased out to the respondents for running a saw mill and for any other business. In this background, the allegation of change of user from CIVIL REVISION NO.2949 OF 1997 :{ 6 }: the aspect of impairing the utility is to be appreciated. The view taken by the Appellate Court on the basis of appreciation of evidence would not call for any interference, especially on the basis of any appreciation of evidence in the absence of any question of law which may arise for consideration and determination in this case. The revision is accordingly dismissed. March 25 ,2008 ( RANJIT SINGH ) khurmi JUDGE