IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1819 of 2010(O&M) Date of decision: 15.12.2011 Jeet Ram s/o Shri Pannu Ram ......Petitioner(s) Versus Mohinder Pal s/o Shri Jai Gopal ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Girish Agnihotri, Sr. Advocate with Mr. Arvind Seth, Advocate for the petitioner. Mr. Arvind Mittal, Advocate for the respondent. Rakesh Kumar Garg, J. This is tenant's revision petition challenging the impugned judgment of the Appellate Authority, Patiala dated 23.12.2009 whereby an appeal filed by the respondent-landlord against the order dated 15.2.2006 of the Rent Controller, Patiala dismissing his ejectment application, has been accepted and the petitioner has been ordered to be evicted from the demised premises. The brief facts which are emerging out from the impugned judgment are that, the respondent filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, (for short the 'Act') on the ground that the petitioner was a tenant in a part of the house as mentioned in the heading of the petition @ Rs.600/- per month. The petitioner has failed to pay the rent despite repeated demands. The petitioner-tenant has made major additions and alterations without the consent of the respondent- landlord and as such the value and utility of the building has been materially impaired. It was also averred by the respondent-landlord that the petitioner had also rented out the part of the house which he had purchased. Thus, the petitioner was liable to be evicted from the demised premises on the aforesaid grounds. Upon notice, the petitioner appeared and filed written statement admitting that he was in possession of the part of the house bearing No.2556/4 which was rented out to him and stated that no additions or alterations were made in the premises in dispute. Rate of rent of the demised premises @ Rs.600/- per month was denied and it was further pleaded that the rent note was got signed from the petitioner by the father of the respondent, in whom the petitioner had full faith on the pretext that the said rent note was required for taxation purposes and the tenancy in respect of the premises in possession of the petitioner was never created under the said rent note dated 22.10.1988 and it was a paper transaction and was not acted upon. It is the further case of the petitioner that in the alleged rent note, wrong description of the premises in question in respect of possession of the petitioner has been mentioned. as toilet and bathroom were already existing when he was inducted as a tenant and he has fixed only the glazed tiles in the bathroom which has added to the utility of the bathroom. The petitioner further admitted that he had purchased the small house where he along with his family members was residing but that accommodation was hardly sufficient for his family. He had never rented out any part of the building purchased by him. Denying other averments, prayer for dismissal of the petition was made. On the pleadings of the parties, the Rent Controller framed the following issues: “(i) Whether the respondent has not paid the rent to the petitioner and is in arrears of rent? OPP (ii) Whether respondent has impaired the value and utility of the building? OPP (iii) Whether the respondent has made major additions and alterations in the rented building without the consent of the petitioner? OPP (iv) Relief.” Parties led oral as well as documentary evidence in support of their respective claims. After hearing counsel for the parties, the Rent Controller dismissed the petition. Feeling aggrieved, the respondent-landlord preferred an appeal before the Appellate Authority which was accepted vide impugned judgment holding that it was comprehensively proved that material alterations were made by the petitioner and the structure which was existing at the time of inception of tenancy has been changed to great extent and the same has resulted into impairment of the value and utility of the premises in dispute. The relevant part of the impugned judgment reads thus: “From the rival arguments, it is made out that the premises were rented out by the appellant/petitioner to the respondent vide the rent note dated 22.10.88. No doubt the rent note Ex.P1 was denied by the respondent in his pleadings but during the cross-examination in the court the same was admitted. So much so, he has also admitted his signatures on the rent note dated 22.10.88 Ex.P1. To assess as to what was the accommodation which was given on rent by the petitioner/appellant to the respondent, a reference has to be made to the rent note Ex.P1. As per Ex.P1 Jeet Ram has given the disputed property on rent to the respondent and the same consisted of 4 rooms and verandah alongwith connection of 3HP motor along with water fittings. These were the structure which were existing in the premises in dispute at the time of the inception of the tenancy. The appellant has examined S.K. Malhotra building expert to prove that material alterations have been made by the tenant without his permission. They have resulted in impairment of the value and utility of the premises. The examination of Er.S.K. Malhotra was allowed by way of additional evidence by my ld. Predecessor vide order dated 3.2.2007. In his report Ex.AW4/2 he has submitted the details of the alterations made in the premises. He has opined that the old rented premises consisted of 4 rooms including the basement room and verandah. He has further proved that additional accommodation has been constructed by the respondent i.e. One room, one shed, one Pooja room, one bathroom one WC and wooden staircase and iron railing leading to the first floor. He has further opined that he additional accommodation made is unsafe because the same has been raised on 4” thick roof which are not meant to take roof loads as per PWD specifications. He has further submitted that the alterations made are of permanent nature and the same are in the form of structural change in the building. He has also opinion that sheets roof of the shed and room number 3 have been further covered with PCC/RCC slab like topping which clearly differentiate if from the old construction. He has also proved that there was 3” thick cement, mortar on the roof of the shed. Apart from the testimony of Er.S.K. Malhotra there are vital admissions made by the respondent himself as well as the building expert examined by him. This also showed that there were material alterations in the premises in dispute and the same have materially altered the value and utility of the premises RW1 Shamsher Singh has admitted in his cross-examination that on the roof of the basement and the floor of the shed there was difference of 15”. This showed that the shed was constructed later on. He has further admitted that pooja room has been constructed but the same was having a temporary roof of cement sheets. He has further admitted that over the cement sheets there was cement concrete laid which was 3” thick. He has also admitted that on the shed also there was 3“ cement concrete laid down. This showed that the shed was not temporary shed but it was built with the assistance of bricks and over which there wee not only temporary tin sheets but over the same there was 3” thick, cement mortar laid over, which gives the form of concrete structure. Furthermore RW1 has also admitted that floor of the shed was of concrete cement. He has admitted the existence of one bathroom. He has further admitted that walls of the Pooja Room were built later on. Moreover, even Jeet Ram respondent has admitted that in this building there were 5 rooms including the basement and including the shed. He has also admitted that the shed has been covered by walls and roof. He has also admitted that there is temple in the shed (Permanent). He has further admitted that there was bathroom which was constructed byhim. There is nothing on record to show that any permission was sought by him for construction of bathroom although it was admitted to have been constructed by him. He denied that the roof of the shed was with concrete and bajri although the building expert examined by him admitted the same. He has further admitted that there are 2 rooms on the front side, one room is on the back of the first room and after that there is shed and then a room, a basement room and room. His this admission also showed that he has constructed one additional room although at the time of the inception of the tenancy there were only 4 rooms including the verandah which were given to him. His own admission also shows that it was not a simple partition made temporarily for the construction of the pooja room and a shed but the same were permanent in nature. He has admitted that walls of the shed are touching with the roof of the shed. This showed that the shed was not a temporary structure but it was made of roof built cement mortar of #: thick which was laid down and the walls of the same were upto the roof. The evidence on record thus shows that not only material alterations were made by the respondent without the permission of the landlord but these alterations had also materially impaired the value and utility of the premises. How it could he make constructions in the rented premises, of one room, one bathroom, shed, kitchen which were of permanent nature. Certainly these structures have been constructed permanently and they cannot be removed without destroying the basic structure, in case the building is to be reverted to the position at the time of inception of the tenancy. The walls over which the roof have been laid down are very thin and they cannot withhold the weight. On account of this, the entire structure has become unsafe. Thus, it is held that the respondent has made material alterations in the premises in dispute and the same has impaired the value and utility of the premises. The trial Court has ignored the evidence on record to come to the conclusion that no material alteration has been made. Moreover, the additional evidence put forth on record has totally demolished the defence of the respondent/tenant. It is comprehensively proved that material alterations were made by the respondent and the structure which were existing at the time of inception of tenancy has been changed to great extent and the same has resulted in the impairment of the value and utility of the premises.” Challenging the impugned judgment of the Appellate Authority, learned Senior counsel appearing on behalf of the petitioner-tenant has vehemently argued that a landlord seeking eviction on the ground that the tenant has made additions and alterations impairing the value and utility of the building, has to establish, in support of his allegation that the additions and alterations done by the tenant have decreased the value of the building. According to the learned counsel, the improvements made by the tenant by way of structural alterations cannot be availed as a ground by the landlord for ejectment of the tenant. The structural alterations that went to improve the value and utility of the building cannot be a ground for eviction. Elaborating his argument further, learned counsel for the petitioner has argued that there is no evidence to prove that how the additions and alterations made by the petitioner has impaired the value and utility of the building and mere presumption of the Appellate Authority that the tenant could not make the construction on the landed property of a permanent nature, is erroneous and illegal. It is his further case that no such construction is embedded to the earth, to such an extent, which will make its removal difficult or such construction has damaged the surface of the land to such an extent that it cannot be restored to its original position and in the absence of any such evidence, it cannot be held that there was impairment of value and utility of the premises in dispute because of additions and alterations made by the petitioner. Learned counsel for the petitioner has further argued that the subsequent report Ex.AW4/2 submitted by Engineer S.K. Malhotra by way of additional evidence could not have been taken into consideration by the Appellate Authority. It has further argued that after the judgment of the Rent Controller whereby it was held that there was no material alterations or additions in the demised premises, the Appellate Authority could not have looked into any evidence which has come into existence after the date of filing the petition before the Rent Controller. Learned counsel for the petitioner has further referred to a technical report dated 13.11.2004 submitted by Shamsher Singh, Civil Engineer, Nabha which was the only report before the Rent Controller and according to the said report, the disputed building was intact, without any structural additions and alterations and as such its value and utility had not been impaired. On the other hand, learned counsel appearing on behalf of the respondent has refuted the arguments raised on behalf of the petitioner and has stated that the finding recorded by the Appellate Authority is based on evidence fully proved on record and the said finding is essentially a finding of fact. The evidence on record fully supports the finding recorded by the Appellate Authority and no interference is warranted in the impugned judgment and the petition is liable to be dismissed. Learned counsel has also argued that the petitioner has never challenged the report of Sh. S.K. Malhotra, Civil Engineer, Nabha who was allowed to be examined by way of additional evidence by the Appellate Authority vide order dated 3.2.2007 (which was never challenged by the petitioner) and even before this Court, he has not controverted the report Ex.AW4/A of Sh. S.K. Malhotra in any manner. Learned counsel for the respondent-landlord has also referred to the cross-examination of the petitioner wherein he has admitted the execution of the rent note dated 22.10.1988, according to which the disputed property was given on rent to the petitioner, consisting of four rooms and a verandah along with connection of 3HP Motor along with water fittings. Learned counsel has also referred to the pleadings of the petitioner according to which the rented premises consists of three rooms and fourth back room with basement and shed and a bathroom, toilet and small open yard and two staircases built therein for approaching the basement and roofs of the rooms. According to the petitioner's own pleadings, in the shed, there is a small temporary roofed portion provided with roof and a temporary parda wall, which is open one and without any wall, door or window and is being used by him as a place of worship. It is the further case of the petitioner that the said construction was existing and taken on rent by him from the father of the respondent in the year 1972. Not only this, RW-1 Shamsher Singh, the building expert produced by the petitioner, has admitted in his cross-examination that there is a difference of 15 inches of the roof of the basement and the floor of the shed which itself establishes that the shed was constructed later on. It has been further admitted by the said witness that puja room has been constructed, but the same was having a temporary roof of cement sheets and over these cement sheets, cement concrete of 3” thickness is also laid. This witness has also admitted that on the shed also, there was 3” cement concrete laid down which itself shows that the shed was not temporary but has been built with the material of bricks and over which there was not only tin sheets but over the same there was 3” thick, cement and mortar, laid over. Even the floor of the shed is of concrete cement. The petitioner himself has admitted that there are five rooms including the basement and the shed in the demised premises. He has also admitted that the shed has been covered by walls and roofs. He has further admitted that temple in the shed is permanent structure. Construction of the bathroom by him has also been admitted. There is absolutely no evidence on record that any permission was sought by the petitioner for the aforesaid construction. In his statement, he has clearly admitted that he has constructed one additional room, although at the time of inception of tenancy there were only four rooms including the verandah which was given to him. Thus, the evidence on record completely establishes that not only material alterations were made by the petitioner without the permission of the landlord but these alterations were of permanent nature which has materially impaired the value and utility of the premises. These structures cannot be removed without destroying the basic structures, in case building is to be reverted to its position at the time of inception of the tenancy. It may also be useful to refer to a judgment of this Court in Shivala Damador Dass versus Shankar Dass 2003(1) R.C.R. (Rent) 224 wherein it has been held that construction of permanent structure over a rented land without permission of the landlord amounts to material alterations and additions impairing the utility and value of the property in dispute. In fact from the evidence of the petitioner itself, it is proved on record that the material alterations and additions have been made in the structure which are of permanent nature and have materially impaired the value and utility of the premises in dispute. It may also be pointed out that the argument raised on behalf of the learned counsel for the petitioner that the report of Sh. S.K. Malhotra which was produced before the Appellate Authority cannot be looked into evidence as the same has come into existence after filing of the petition is noticed only to be rejected. The said report of the building expert has been proved on record in accordance with law, after the Appellate Authority has allowed the respondent-landlord to lead additional evidence vide its order dated 3.2.2007, which was never challenged by the petitioner. Even before this Court, the correctness of the aforesaid order is not under challenge in any manner. The objection of the petitioner that the said report has come into existence after the filing of the petition is meaningless as the said report just described the existing position of the demised premises which was already existing at the time of filing of the petition itself. In view of the aforesaid discussion, there is no merit in this petition and the same is hereby dismissed. December 15, 2011 (RAKESH KUMAR GARG) ps JUDGE This is tenant's revision petition challenging the impugned order dated 9.11.2011 whereby his application for amending the application filed under Section 18-A of the East Punjab Urban Rent Restriction Act for grant of leave to defend filed in a petition under Section 13-B of the Act on behalf of the respondent, has been dismissed. Amendment has been sought on the ground that earlier certain facts were not in the knowledge of the petitioner that the respondent- landlord owned other residential and non-residential properties and thus, the amendment of the application was necessary. It has been stated that the averments made in the application are fully supported from the certified copy of the documents which are sought to be relied upon by the petitioner. However, it is not in dispute that earlier also, the petitioner had filed an application for amendment in the application for leave to defend on the same averments. The said application was dismissed vide order dated 26.11.2010. The petitioner filed CR No.887 of 2011 against the aforesaid order. The said civil revision was also dismissed by this Court vide order dated 8.2.2011. While dismissing the said revision petition, this Court has observed that the pleadings which are sought to be incorporated in the application under Section 18-A of the Act, are of no relevance. The Court also noticed that the case has already fixed for arguments on the application for leave to defend and the petitioner only wanted to delay the proceedings. Thus, I find no merit in this revision petition. Dismissed. December 19, 2011 (RAKESH KUMAR GARG) ps JUDGE