IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 28 of 2010 Judgment reserved on: 6.8.2010 Date of decision: 17.9.2010 Manjeet Singh and others …….Petitioners. Vs. Arun Bhoil and another …..…Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioners : Mr. Praneet Gupta, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate for for respondent No.1. Justice Kuldip Singh, J. This revision has been directed against the judgment, dated 16.1.2010 passed by the learned Appellate Authority, Shimla in Civil Miscellaneous Appeal No. 56-S/14 of 2009 affirming the ejectment order, dated 30.6.2009 passed by the learned Rent Controller, Court No. (6) Shimla, H.P. in Rent Application No. 2/2 of 2006. 2. The facts, in brief, are that respondent No.1 had filed a petition under ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 ( In short, the ‘Act’) against the petitioners and proforma respondent No.2 on the grounds of change of user of the premises in question and that the petitioners and proforma respondent No.2 have committed such acts, which have materially impaired the value and utility of the premises in question. 3. The case of respondent No.1 is that the petitioners and proforma respondent No.2 are tenants in one shop in the ground floor and two residential rooms in the first floor. The premises in question are residential/non-residential. The premises were originally let out to Dhanna Singh, predecessor-in-interest of petitioners and proforma respondent No.2 on rent at the rate Rs.400/- per month. There is no written agreement. The petitioner and proforma respondent No.2 without written consent of respondent No.1 are using the premises for a purpose other than one, for which, these were let out. They have changed the user of the portion in the first floor from residential to non-residential. The first floor consisting of two rooms set was let out for residential purposes and ground floor for commercial use. In the ground floor, three businesses i.e., (i) Channa Boutique; (ii) Channa Properties and (iii) Eye Testing & Spectacles are being run. Two rooms in the first floor have been converted into three rooms, where tailoring work has been started, which amounts to change of user. The petitioners and proforma respondent No.2 have carried out extensive unauthorized alterations in the ground floor as well as in the first floor. In the first floor, they have carried out aluminum partition and added 3rd room of permanent nature for running tailoring machines. They have carried out construction activities in the ground floor with aluminum and wooden work of permanent nature for making additional room for eye testing. The light and air in both the floors have been stopped. 3 4. The ejectment petition was contested by filing reply, in which several objections, such as improper verification, non-joinder and mis-joinder of necessary parties, concealment of material particulars and estoppel have been taken. On merits, it has been submitted that the premises consist of one shop and three rooms in the first floor, which are partly used as residence and partly as shop. The arrears of rent have been denied as respondent No.1 has refused to receive the rent despite the offer made by the petitioners and proforma respondent No.2. The change of user of the premises has also been denied. 5. On the pleadings of the parties, following issues were framed:- 1. Whether the respondents have used the premises for a purpose other than the one for which it was let out ? OPP 2. Whether the respondents have committed such acts which have impaired materially the value and utility of the premises ? OPP 3. Whether the petition has not been properly verified ? OPR 4. Whether the petition is bad for non-joinder and mis-joinder of the parties ?OPR 5. Whether the material particulars have not been furnished, if so, its effect ? OPR 6. Whether the petitioner is estopped to file the present petition ? OPR. 7. Relief. 6. The issues No. 1 and 2 were answered in the affirmative and issues No. 3 to 6 in negative and the petition was allowed on the grounds of change of user and material impairment of value and utility of premises in question by learned Rent Controller on 30.6.2009. In appeal, the learned Appellate Authority on 16.1.2010 has affirmed the ejectment order, dated 30.6.2009. Hence, this revision. 7. I have heard the learned counsel for the parties and I have also gone through the record. 4 8. On behalf of the petitioners, it has been submitted that two authorities below have misconstrued and misinterpreted the material on record. The respondent No.1 has miserably failed to prove the change of user and material impairment of the premises in question. It has been submitted that the premises were let out for non residential purpose and the tenancy is composite of the ground floor as well as of the first floor and despite the allegations, which have not been proved, the tenancy remains non-residential. Hence, there is no change of user of the premises in question. It has been further submitted that similarly, there is no material impairment of the premises. The authorities below have not properly construed material impairment of the value and utility as provided in the Act. The learned counsel for respondent No.1 has supported the impugned judgment, dated 16.1.2010 and ejectment order, dated 30.6.2009 and has submitted that after proper appreciation of the evidence on record, the authorities below have concurrently recorded findings of facts regarding the change of user and material impairment of the value and utility of the premises. It has been submitted that there is no merit in the revision. 9. The petitioners have filed CMP No. 247 of 2010 under Order 41 Rule 27 read with Section 151 CPC for placing on record and proving Jamabandi for the year 2007-08 and mutation. It has been alleged that respondent No.1 has sold the premises in question in the year 2005 and is now no more owner of the structure and therefore, he has no locus-standi to file the eviction petition on the grounds as pleaded in the petition. The respondent No.1 has contested the application for additional evidence. 10. Ext. AW2/F is the report prepared by AW2, Vivek Karol, in which he has stated that the tenant has divided the shop and first floor by wooden and 5 aluminum partitions, which are of permanent nature. In the first floor, which had two rooms, partitions have been made so as to create 3rd room. One partition has been done by using aluminum and the second partition has been done with wooden karis, battens and boards. By raising partitions on the main load bearing walls, the value and utility of the premises have been impaired, as it has put additional load on the walls of the structure. 11. Ext. RW2/A is the sale deed, dated 6.8.2005, whereby Arun Bhoil has sold his half undivided share in Shop No. 20, 33 Lakkar Bazaar in favour of Anurag Sharma etc. Ext. RW3/A is the report of RW3, S.S. Dass Vaish, in which it has been stated that ground floor consists of two portions i.e. shop and Eye Testing Lab. The first floor has two portions. All the partitions and show windows made by the tenant are of temporary type and additional load of this temporary structure is within permissible limit. 12. In the application for additional evidence, it has been stated that the respondent No.1 has sold the premises in the year 2005 and he is now no more owner of the structure and has no locus-standi to file the eviction petition. The petitioners have already placed on record copy of sale deed, Ext. RW2/A, dated 6.8.2005, whereby respondent No.1 has sold his half undivided share in favour of Anurag Sharma etc. The jamabandi and mutation, which are referred to in the application, are not documents of title. These documents are not necessary in order to adjudicate upon the real controversy between the parties. The petitioners have also not shown as to why these documents, now sought to be produced by way of additional evidence, were not produced earlier when they were aware of the sale deed, dated 6.8.2005. The petitioners have failed to make out any case for leading additional evidence. Hence, application for additional evidence is rejected. 6 13. The learned counsel for the petitioners has submitted that the respondent No.1 has sold his share in the building in question in favour of Anurag Sharma etc. Therefore, the respondent No.1 has no locus-standi to file the petition. In the reply to the ejectment petition, the petitioners have not taken specific plea regarding locus-standi of the respondent No.1 to file the eviction petition. It is not the case of the petitioners that the respondent No.1 is not their landlord. The sub- section 2 of Section 14 of the Act authorizes the landlord to file eviction petition against his tenant. The ground of eviction of change of user is provided in sub clause (b), clause (ii), sub-section 2 of Section 14 of the Act. The ground of eviction of material impairment is provided in clause (iii), sub section 2 of Section 14 of the Act. The ‘landlord’ has been defined in clause (d) of Section 2 of the Act, which is as follows:- “ 2(d) “landlord” means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord”. The respondent No.1 has stated in his statement that the petitioners have paid him rent upto September 2006. RW4, Sukh Dev Singh, one of the tenants, has stated that rent upto November, 2008 has been paid to the respondent. It is not the case of the petitioners that the respondent No. 1 is not entitled to receive the rent. In E. Parashuraman versus V. Doraiswamy, (2006) 1 SCC 658, the Supreme Court has held that High Court had rightly taken the view that question which arose in those 7 proceedings was not whether Doraiswamy was the owner of the premises, but whether he was the landlord who could sustain an eviction proceeding under Karnataka Rent Control Act, 1961. The landlord under the Karnataka Rent Control Act can maintain a suit for eviction even without being the owner of the premises. The landlord under the Act can also maintain eviction petition. As per definition of ‘landlord’ in the Act, the respondent No.1 is landlord of the petitioners and is competent to file the petition being landlord of the premises. It is significant to point out here that the petitioners in the grounds of appeal before the Appellate Authority have not questioned locus-standi of respondent No.1 to file the petition. The petitioners in the grounds of appeal before the Appellate Authority have described the respondent No.1 as landlord. Thus, objection of the petitioners that the respondent No.1 has no locus-standi to file the petition is rejected. 14. The grievance of the respondent No.1 is that in the premises in question two rooms, in the first floor, were given for residential purpose and the ground floor was given for shop. It has been contended on behalf of the respondent No.1 that the petitioners have changed the user of two residential rooms to non- residential and, therefore, the petitioners are liable to be evicted on the grounds of change of user of the premises. 15. In the Act, ‘non-residential building’ has been defined in clause (e) of Section 2. In fact, in the Act the buildings have been classified either ‘residential building’ or ‘non-residential building’. The residential building under the Act means any building which is not non-residential building. The non-residential building in the Act has been defined as follows:- “ 2(e) “non-residential building” means a building being used- (i) mainly for the purpose of business or trade; or 8 (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein. ” PROVIDED that if an building is let out for residential and non- residential purposes, separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as non-residential building. Explanation - Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.” 16 The respondent No.1 has not placed on record any written document so as to point out specific purpose, for which two rooms were let out. It is the case of the respondent No.1 that the tenancy is composite of the shop as well as of the first floor. In the petition, the nature of premises has been described residential/non-residential. The learned counsel for the petitioners has relied several judgments in support of his contention that even if it is assumed that the petitioners have changed the user of two rooms to non-residential still, it will not amount to change of user as contemplated under the Act. The premises in question is non- residential and, therefore, within the limits of user non-residential building can be used for any non-residential purpose, more particularly, when non-residential purpose was not specified at the time of induction of the petitioners or their predecessor in the premises in question. It is not necessary to refer to all those judgments on the point in view of Hari Rao versus N.Govindachari and others, AIR 2005 SC 3389, wherein it has been held as follows:- 9 “Merely because a shop let out for trade in shoes and other leather goods, is used by the tenant also for the purpose of trading in readymade garments it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased. It has to be noted that even now, the tenant is carrying on the business of trading in shoes, which according to the landlord was the purpose for which the building was let. The trade in shoes has not been stopped by the tenant. All that has happened is, that he has also diversified into selling some readymade garments or T-shirts, the manufacture of which even some of the manufactures of shoes have taken up.” 17. It is not the case of the respondent No.1 that the premises were given mainly for residence. The plan, Ext. AW2/G of the first floor nowhere indicates any latrine, bath room and kitchen in the first floor and, therefore, it can be safely inferred that first floor is also non-residential and meant for non-residential purpose. In view of pleaded case of respondent No.1, it can be safely concluded that the two Authorities below have not properly interpreted the ‘residential building’ and ‘non- residential building’ as defined in the Act. The petitioners continue to use the premises for non-residential purpose. Therefore, two Authorities below have erred in returning the findings on issue No.1 in favour of the respondent No.1 and such findings are not sustainable and are accordingly set aside. 18. The ejectment of the petitioners has also been ordered on the ground of material impairment. It is the case of the respondent No.1 that shop in the ground floor has been partitioned by aluminum and wooden partitions, which are of permanent nature and now three business, namely, (i) Channa Boutique; (ii) Channa Properties and (iii) Channa Spectacles are running in the ground floor. In the showcase, glass has been fixed, which has caused obstruction of light and air in 10 the ground floor. In the first floor, two rooms have been converted into three rooms by putting aluminum and wooden partitions. The building is old. The use of aluminum and wood in the partition has put extra load on the walls. The changes in the first floor are of permanent nature. It is the case of the respondent No.1 that the petitioners have impaired the value and utility of the tenanted premises. It has been stressed that material impairment is to be seen from the angle of the landlord and not as per tenant. The petitioners have denied the case of the respondent No.1 regarding material impairment of value and utility of the premises. They have projected the case that they have done nothing, which can be termed as impairing the value and utility of the premises. The changes are very little and the original position can be restored without damaging the premises. 19. Before referring to the evidence, it is fruitful to refer to the case law relied upon by either side. The learned counsel for the petitioners has referred to Holkar Mall Versus Munshi Lal, 1975 R.C.R. 540, wherein it has been held as follows:- “ Supposing four persons are landlords of a tenant in respect of a premises and a suit (or a petition for eviction) is to be filed against the tenant. Firstly, there is no doubt about the proposition of law that all of them must join in the suit and in the absence of any one or more of them, a suit for eviction against a tenant will ordinarily be not maintainable. The second proposition is that if more than one plaintiff institutes the suit, there must be community of interest and unity of action on their part otherwise the trial may be embarrassing. The third proposition is that if for any reason, one or more of the landlords does not join the plaintiff in instituting the suit, such remaining landlords must be arrayed as defendants. A suit thus constituted with all the parties arrayed either as plaintiffs or defendants will be a validly 11 constituted suit and cannot be said to be suffering from any defect and cannot be thrown out for lack of necessary parties. The determination of any rights between the plaintiff landlords and the defendant landlord would depend upon the facts and circumstances and issues in each case, but the same has nothing to do with the maintainability of the suit. The three principles of law enunciated above, in my opinion apply with equal force to a petition for eviction under the Rent Act.” Khiali Ram versus Santokh Singh, 1992 (2) RCR 667 has been relied by the learned counsel for the petitioners. In that case, the petitioner had contested the relationship of landlord and tenant. The petitioner had pleaded that he even purchased the shop from one of the co-owners vide sale deed, dated 11.2.1987 and, therefore, he is entitled to claim ownership of the shop in dispute. The High Court has also recorded a finding that the property was not partitioned. On those facts, the High Court allowed the revision. Ravinder Singh and others Versus Mandir Bhajley Ram and another, 2007 (2) RCR 424 has also been relied by the learned counsel for the petitioners on the point that expert’s opinion is not much relevant. Such like expert tends to lean in favour of the party calling them. The respondent No.1 has relied upon Ashok Kumar and others versus Uttam Chand, 1996 (1) S.L.J. 111, wherein the High Court has affirmed the findings of the Appellate Authority on material impairment on the basis of Local Commissioner report. The learned counsel for respondent No.1 has also relied upon Vipin Kumar versus Roshan Lal, 1993 (1) RCR (SC) 675, wherein it has been held that impairment of the value and utility of the building is to be seen from the point of the landlord and not of the tenant. In M/s. Mohan Lal Ashok Raj versus Lajwanti Devi, 1997 (2) RLR 197, a case under the Himachal Pradesh Urban Rent Control Act, 1971, it has 12 been held that it is not merely the value but also the utility of the building that has to be taken into account. This certainly cannot be from the point of view of the tenant. A tenant cannot contend that during the period of his occupation, he will alter the building in such a manner that it will be useful for him and it will be of high utility for him and that cannot be a ground for eviction under this section. The question has to be approached from the point of view of the landlord, who is the owner of the building. The High Court has rejected the contention of the tenant in that case by observing that there is no substance in the contention that at the time when the tenant vacates the building the alteration or new additions could be removed and the building could be restored to its original position. 20. Holkar Mall (supra) relied by the learned counsel for the petitioners is not applicable in the facts and circumstances of the present case. It is not the case of the petitioners that along with respondent No.1 someone else is also the landlord of the premises. On the contrary, RW4, Sukh Dev Singh, who is petitioner No.3, has stated that the rent of the premises has been paid to respondent No.1 upto November, 2008. Once, it has been established on record that respondent No.1 is the landlord of the premises in question, which has not been disputed by the petitioners, then it cannot be said that the petition is bad for want of necessary parties. Khiali Ram (supra) is also not applicable in the facts of the present case. It is not the case of the petitioners that they are owners of the premises by virtue of purchase from someone else and, therefore, the petition against them is not maintainable. Similarly, Ravinder Singh (supra) is also not applicable. The observations made in para 18 of the judgment of that case are with respect to the facts of that particular case. Hence, Ravinder Singh (supra) is of no help to the petitioners. 13 21. AW1, Arun Bhoil, has stated that the petitioners have placed aluminum partition of permanent nature in the ground floor. In the first floor, instead of two rooms, three rooms have been made, which has impaired the value and utility of the premises. The changes made by the petitioners are of permanent nature. AW2, Vivek Karol has stated that aluminum and wooden partitions have been placed in the ground floor. In first floor there are three rooms, there is one wooden and one aluminum partition. This has impaired the value and utility of the premises. In Ext. AW2/G, plan, in the ground floor two portions have been shown and in the first floor three rooms have been shown. RW3, S.S. Dass Vaish, has stated that in the ground floor, there is one shop and in the first floor, there is residence. He has not seen any aluminum and wooden structure. In the first floor, there are two rooms. He has stated that in plan, Ext. RW3/C, he has shown three rooms. He has not stated about wooden partition in his report, Ex. RW3/A. In the ground floor in Ext. RW3/C, two portions have been shown. He does not know that three business are running in the ground floor. The building in question is quite old. RW4, Sukh Dev Singh has stated that in the ground floor there is one portion. He has stated that in the first floor two rooms are so small and third room cannot be created. In Report, Ext. RW3/A, RW3 has stated that ground floor has two portions, i.e. shop and Eye Testing Lab. The first floor has