Civil Revision No. 1095 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 1095 of 2007 Date of Decision: 10th November 2008 Dev Samaj Society (Registered) …Petitioner Versus Des Pal ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Puneet Bali, Advocate for the petitioner. Mr. U.K.Agnihotri, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. Dev Samaj Society through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City, has preferred the present revision petition assailing the orders of two Courts below i.e. learned Rent Controller, Ambala and learned Appellate Authority, Ambala, as eviction petition instituted on the ground of non-payment of rent and material impairment of value and utility of the building was not accepted. Having remained unsuccessful in two Courts below, in the present revision petition, findings of the two Courts below have been challenged on law and facts. Civil Revision No. 1095 of 2007 2 Dev Samaj Society, landlord-petitioner, is having various shops on Duni Chand Road near Congress Bhawan, Ambala City. One of the shops was rented out to the respondent at the rate of Rs.1,000/- per month excluding electricity and water charges. In the eviction petition, it was averred that the rent of the shop was not paid since June 2001. Second ground pleaded that the tenant has broken the shop in question and thereby level of the roof was raised by constructing the new floor without the written consent of the petitioner-society. It was pleaded that by raising the level of roof and ceiling, earlier roof and ceiling was demolished and walls of the shops were damaged. Another grievance made was that the tenant removed iron shutters affixed by the landlord-society and has replaced them by new shutters, therefore, the value and utility of the shops stood diminished. Written statement was filed by the tenant. Preliminary objection regarding the maintainability of the petition was raised. Relationship of landlord-tenant was admitted. It was stated that the rent was regularly paid. On refusal of the petitioner-landlord, arrears of rent were tendered in the Court. It was stated that no structural changes were made in the shop in the manner suggested by the landlord. It was pleaded that there were more than dozen shops rented out and all the shops were having a roof which was an old structure in existence. In May 2000, Sudarshan Kumar on behalf of the Society, approached the tenants individually and collectively expressing desire that a Computer Institution is to be run, therefore, on removal of the belongings of the shopkeepers on 22.5.2000, old structure of the roof was removed. Petitioner-Society constructed the roof of the shop equal to the level of Civil Revision No. 1095 of 2007 3 the shops under the tenancy of S.B.Traders and Gobind Ram. Landlord had raised the level of the roof and the entire work was completed by the petitioner-society. The landlord had also agreed to the demand of the tenant that the level of the shops be raised because rainy water enters into the shops. The following issues were drawn by learned Rent Controller 1. Whether the respondent is in arrears of rent w.e.f. June 2001, if so its effect? OPP 2. Whether the respondent has materially altered the property in question causing impairment in its value and utility, if so its effect? OPP 3. Whether the petition is not maintainable? OPR 4. Relief. Sudarshan Kumar appeared on behalf of the petitioner- landlord as PW.1 and closed the evidence. Respondent-tenant examined Ashok Kumar as RW.1, respondent-tenant appeared himself as RW.2 and Surinder Kumar Verma, Building Inspector of Municipal Corporation, Ambala, has appeared as RW.3. Meaningful discussion of the two Courts below revolved around the fact whether removal of the old roof and construction of the new roof was at the instance of the petitioner or was done by the tenant. Admittedly, there was no written consent. It was pleaded by the tenant that construction of new roof was made by the landlord itself. The two Courts below, to find out the answer as to which oral version is correct, relied upon the circumstances which emerge from the oral testimony of the witnesses. Learned Rent Controller held that Sudarshan Kumar, Civil Revision No. 1095 of 2007 4 through whom the petition has been filed, has not been able to disclose as to when the alleged changes were made. He also denied having received the notice from the Municipal Committee regarding non- sanction of the building plan of the same at his instance by the Municipal Committee. Learned Rent Controller came to the conclusion that Sudarshan Kumar has not been able to state as to when the construction was raised by the tenant. It also considered the fact that he had not visited the said premises. It further inferred that failure on the part of landlord to establish as to from which date alleged alteration was made is sufficient to conclude that the landlord was aware of the alterations made. Learned Appellate Authority duly noticed the fact that it has been admitted by the landlord that the level of floor and roof of dozen of shops was raised in May 2000. The business activities of the said shops remained closed for about two months. The Municipal Council had also issued notice to the landlord-appellant. Therefore, learned lower Appellate Authority concluded as under:- “…In the present case, the appellant is a Trust and along with the demised shop, similar alterations were made in about a dozen of tenanted shops belonging to the appellant. On appraisal of the entire evidence, it is not proved that the alterations were carried out without the consent of the landlord. This is not a case where the tenant may have alleged that he himself carried out the alterations and rather, it is a case where the land-lord got the alterations carried out in many shops at the same time. The learned Rent Civil Revision No. 1095 of 2007 5 Controller appreciated the entire evidence adduced in the case and recorded firm finding of fact holding that it was the landlord/appellant who carried out the alterations in the demised shop and several other shops. On re-appraisal of the entire evidence, I find no ground or justification to take a different view”. I have heard Mr. Puneet Bali, learned Counsel for the petitioner and Mr. U.K. Agnihotri, learned counsel for the respondent. Mr. Bali relied upon Gurdial Singh and Others v. Raj Kumar Aneja and Others 2002(2) Civil Court Cases 1 (Supreme Court) to say whether several cabins were constructed in the hall, the value and utility of the building was considered to have been impaired. Therefore, it has been stated that by raising the level of roof and the floor, tenant has impaired the value of the property. Reliance has been also placed by Mr. Bali on Mrs. Gian Kaur v. Mrs. Krishna Anand 2006(2) Rent Control Reporter 610 and it has been urged that impairing of the value and utility of the demises premises is to be seen from the view point of the landlord and not the tenant. A further reliance has been placed on Inderpal v. Sat Narain 2004(2) Rent Control Reporter 441 and it has been urged that where after the disputed alterations rent was raised and accepted by the landlord, then also consent of the landlord cannot be presumed. Further reliance has been placed upon Baij Nath v. Shail Kumari 2003(1) Rent Control Reporter 197; Vijay Kumar Bansal v. Bishan Sarup 2003(1) Rent Control Reporter 627 and Smt. Nirmala Civil Revision No. 1095 of 2007 6 v. Ishwar Chander 1983(2) Rent Control Reporter 208 and it has been submitted that the present revision petition ought to be accepted and eviction of the tenants be ordered. Mr. U.K.Agnihotri appearing for the respondent-tenant has controverted the submissions by saying that the findings of the two Courts below being concurrent are based upon appreciation of evidence and revisional Court cannot disturb the same until it is held that the finding is perverse. It is further submitted that he view formulated by the two Courts below is one of the view which is possible and the same cannot be altered. The structure was changed, earlier roof was removed and new ceiling over more than dozen of shops was laid is an admitted fact. Whether this was done by the landlord as pleaded by the tenant or tenant himself did, is the question which is dependent upon appreciation of the evidence of the case. It is a fact that Municipal Council had issued a notice for non-sanctioning of the building plan and later changes made in the building have been compounded. Sudarshan Kumar on material facts has not been able to disclose as to when the alleged structural changes were made. He has denied having received any notice from the Municipal Council regarding the non-sanctioning of building plan of the shops in question. A solitary statement of Sudarshan Kumar and his oral bald assertions are not sufficient to advance his case. The findings of fact have been recorded by the two Courts below. Whether the alterations made, if impaired, utility and value of the property is a mixed question of facts and law. From the kind of evidence led, the concurrent findings of two Civil Revision No. 1095 of 2007 7 Courts below warrant no interference and hence the present revision petition is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 10th, 2008 “DK”