S.S. Saron, J.@mdashThis petition lias been filed by the landlord against the order dated 11.9.1987 passed by the Appellate Authority under East Punjab Urban Rent Restriction Act, 1949, whereby the order dated 12.10.1983 of the Rent Controller, ordering the ejectment of the tenant-respondents, has been set aside.
2. The facts leading to the case are that Shiv Ram (now represented by his legal-representatives) filed a petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short - Act) for ejectment of the respondents i.e. Sham Lal and M/s.Punjab Oil Store through Sham Lal on the ground of non-payment of rent and making the material alterations, which diminished the value and utility of the building without the permission of the landlord. It is alleged that the respondent made material alterations by converting a room into two rooms and fitting a door therein to the newly constructed room. The shop as detailed in the head note of the Rent Petition was let out to the respondent at a monthly rent of Rs.507- sometime in the year 1968.
3. The respondents filed their reply to the ejectment petition in which an objection was raised that there was no relationship of landlord and tenant between the parties. It was stated that the property in dispute had been let out by the firm M/s.Shiv Ram and Sons and not by Shiv Ram alone. Besides, it had been let out to M/s. Punjab Oil Store-respondent No.2 and the rent was also received from it. The rent, it was stated, was tendered on the first date of hearing. The averments relating to material alterations were denied. It was rather stated that the demised premises were in the same condition as had been taken on rent.
4. The petitioner filed replication and it was stated that the respondent was guilty of making material alterations which decreased the value and utility of the rented premises and that the premises depicts a quite different look.
5. On the pleadings of the parties, the learned Rent Controller framed the following issues:-
1. Whether there is relationship of landlord and tenant between the application and respondent No. 1, as alleged on para 2 of the application? OPP.
2. Whether the respondent is liable to ejectment as alleged in para No.3 of the application? OPP.
3. Relief.
6. The learned Rent Controller, vide his order dated 12.10.1983 accepted the rent petition and ordered ejectment of the tenant-respondents from the demised premises. Against the aforesaid order, the tenant-respondents filed an appeal which was accepted by the Appellate Authority vide its order dated 11.9.1987 and the order of the Rent Controller was set aside. It is against the said order dated 11.9.1987 that the present revision petition has been filed in this Court.
7. I have heard Shri O.P.Goyal, learned Senior Advocate assisted by Shri Amit Jaswal, Advocate for the landlord-petitioner and Shri H.S.Gill, learned Senior Advocate assisted by Shri D.S. Virk, Advocate for the tenant-respondents and with their assistance gone through the records of the case.
8. The findings of the learned Rent Controller on issue No.1 that there exists relationships of landlord and tenant between the parties was not assailed before the learned Appellate Authority. Neither is it assailed in this Court. Therefore, it is taken that there exists relationship of landlord and tenant.
9. The only question that requires consideration is whether the respondent-tenants made material alterations in the demised premises which has diminished its value and utility.
10. Shri O.P.Goyal, learned Senior Advocate assisted by Shri Amit Jaiswal, Advocate for the landlord-petitioner has contended that the Rent Controller, after considering the entire material and evidence on record, came to a firm conclusion that there were material alterations and additions in respect of the demised premises. He further contends that even other wise it is established on record that the shop was constructed according to the site plan Ex.A-4 Ex,A-5, wherein two rooms were constructed and that now there are three rooms and also a door, which were not there earlier. From this, it was clear that one additional room has been constructed and a door has been fitted.
11. On the other hand, Shri H.S.Gill, learned Senior Advocate assisted by Shri D.S.Virk Advocate has contended that there is no material alteration with respect to the demised premises and that the learned Appellate Authority has reached a finding of fact in this regard. This finding is not liable to be interfered with or disturbed in exercise of the revisional jurisdiction of this Court u/s 15(5) of the Act.
12. In order to appreciate the respective contentions of the parties, the provisions of Section 13(2)(iii) of the Act may be noticed:-
"(1)xx xx xx xx xx xx xx
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied:-
(i) xx xx xx xx xx
(ii) xx xx xx xx xx
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or
(iv) xx xx xx xx xx
(v) xx xx xx xx xx
the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:
Provided that the Controller may give the tenant a reasonable time for putting the landlord In possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate."
13. The landlord in support of his case has examined Kartar Singh, Draftman as AW-2, who has proved on record site plan Ex.A-4, which was prepared by him on the asking of the landlord. The landlord had shown him a photostat copy of the plan sanctioned by the Municipal Committee, according to which there were two rooms in the disputed shop. As per the site plan the respondent had made a wall and put a door and out of one room has also made two rooms. The newly constructed room has been depicted in blue colour, On account of Which the value and utility of the building has decreased. On seeing the disputed shop it looks absolutely different. AW-3 Kartavi Parshad, House Tax Clerk, Municipal Committee, Khanna, has appeared as AW-3 and produced on record the sanctioned site plan Ex.A-4 and Ex.A-5.
14. The landlord appeared as AW-4 and stated that appearance of the shop in question has changed considerably after it was let out. In one room Cup-boards have been put and another room had also been made. In this manner the size of the shop has been changed after giving it on rent and it has become congested. He further states that when he had given the shop, at that time, he had got the site plan sanctioned. The original of which he has seen on the file of Kartavi Parshad PW-3 and which bears his signatures. The copy of which are Exs.A-4 and A-5. He further states that he had constructed the disputed shop after obtaining sanction and according to the sanctioned plan. Besides, the additions and alterations in the rented premises have been made by the tenant without his consent. In the cross-examination, he stated that he does not remember the season in which the construction of the shop was started. However, in November, December 1966 he had constructed the shop and 10/15 days after completion of the shop he had given it on rent. But he could not tell orally as to after how must time after letting out the shop, he accepted the rent. Maggar Singh was examined as AW-5. He stated that he has been doing the work of mason for the last 30 years. He had seen the disputed shop which he had constructed. He had seen it at that time and not now. He had constructed two shops and both were straight long shops, there was no almirah. These were constructed 18/20 years earlier in the year 1965-66.
15.. As against this evidence of the petitioner-landlord, the respondent Sham Lal examined himself as RW-1, he stated that he is one of the partner of the respondents. He further states that he had kept the shop in the same condition in which it was at the time of inception of the tenancy and he had not made any additions or alterations. He had not installed any new almirah, door or window. In his cross-examination, he admits that the shop was rented out to him immediately after it was constructed. He however states that he does not know if the partitioner constructed the shop after obtaining sanction from the Municipal Committee. He denied the suggestion that he had converted one hall of the shop into two rooms by constructing a wall between the same. He also denied the suggestion that he had made additions and alterations in the demised shop thereby diminishing its value and utility.
16. Mohan Lal, who is another partner of the respondent-firm has been examined as RW-2. He was produced to show the correctness of the entry dated 2.4.1965 in the account books of the firm. In his cross-examination he denied the suggestion that a room which has been shown in green in the map Ex.A-3 has been constructed by them after commencement of the tenancy. Mool Raj RW-3 states that the shop in question was in the same condition as it was at the time of inception of tenancy. In his cross-examination. He states that when the shop was constructed there were 2/3 doors. Two of the doors were outside and the third was inside the shop.
17. The question, however, that first arises for consideration is whether this Court in exercise of its jurisdiction u/s 15(5) of the Act, can reappraise the evidence on record. Section 15(5) of the Act reads as under:-
"15(5). The High Court may, at any time on the application of any aggrieved party or on its own motion, call for and examine the records 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."
18. The perusal of the above section shows that the this Court in exercise of its powers u/s 15(5) can call for the records and examine the same relating to any order passed or proceedings taken under the Act, for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass order in relation thereto as it may deem fit. The scope of the jurisdiction u/s 15(5) came up for consideration before the Hon''ble Apex Court in the case of
19. Therefore, the findings of the appellate authority in a way does not specifically rule out the possibility of constructions being raised but it has gone on the premise that there has been a waiver on the part of the landlord and that in any case the value and utility of the demised premises had not been impaired on the assumption that the tenant had raised a partition wall and fixed the door. It is, therefore, to be seen whether there has been waiver or acquiescence on the part of the landlord in respect of the additions and alterations and that whether the additions and alterations have materially impaired the value and utility of the building. It is categoric case of the tenant in the written statement and in his evidence produced on record that he had maintained the shop in the same condition as it was when it was let out to him. It is not the case of the tenant that changes have been made to which the landlord had consented. Therefore, there being a denial on the part of the tenant with regard to the changes made, he cannot at the same time take the plea of acquiescence or waiver on the part of the landlord. In Satish Kumar v. Krishan Gopal, 1998 (2) RLR 237, in regard to acquiescence, it was observed as follows:-
In Wilmott v. Barber, L.R.15 Ch.D.96,105 (1880) in regard to acquiescence by conduct, it was observed:
"A man is not to be deprived of his legal rights unless he has acted in such a way as would market it fraudulent for him to set up those rights. What then are the elements or requisites necessary to constitute fraud of that description? In the first place, the plaintiff must have made a mistake as to (sic) his legal rights. Secondly, the plaintiff must have expended some money, or must have done some act (not necessarily upon the defendants'' land) on the faith of this mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiffs mistaken belief of the rights. If he does not, there is nothing which called upon him to assert his own rights. Lastly the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly, or by abstaining from asserting his legal rights."
In De Buscche v. Alt, L.R. 8 Ch.D.286 (1878) it was observed:
"If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards to heard to complaint of the act. This, as Lord Cottenham said in the case already cited, is the proper sense of the term "acquiescence", and in that sense may be defined as acquiescence under such circumstances as that assent may be reasonably inferred from it, and is not more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or released under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right although under the name of laches it may afford a ground for refusing relief under some particular circumstances; and it is clear that even an express promise by the person injured that he would not take any legal proceedings to redress the injury done to him could not by itself constitute a bar to such proceedings, for the promise would be without consideration, and therefore not binding."
In
On the other hand waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right.
20. In
"The lessee had the right u/s 108(h) of the Transfer of Property Act to remove the construction while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease u/s 111 merely because constructions had been made by the lessee even to the knowledge of lessor and from instituting the suit for ejectment."
21. Keeping in view the above observations, the findings of the Appellate Authority the question of waiver or acquiescence on the part of the landlord is clearly inapplicable. This is more so, as already noticed above, when it is the case of the tenant that he had kept the building in tact in the same manner as it was let out to him. Therefore, having raised the constructions it cannot be said that the landlord consented to the same. Even otherwise it is the right of the landlord u/s 13(2)(iii) of the Act to seek ejectment of the respondent on the ground that the value and utility of the demised premises has been impaired. This being a statutory right under the Act the question ofestoppel would not operate against the provisions of the Act. In this view of the matter, the finding of the appellate authority that there has been a waiver on the part of the landlord in respect of the constructions raised by the tenant is not sustainable. To apply the doctrine of acquiescence the conduct of a party is to be of such a nature that his assent may reasonably be inferred which is not the case in hand.
22. The question however arises is whether the constructions raised amount to impairing the value and utility of the building. This is to be judged from the point of view of the landlord and no one else. In Vipin Kumar v. Roshan Lal Anand, 1993(2) P.L.R. 349, the Hon''ble Supreme Court in the context of Section 13(2) (iii) of the Act held that once the landlord proves the factum of material alterations made by the tenant, the Court could infer its adverse effects on the value and utility of the building keeping in the view the nature of alterations. The tenant therein had constructed a wall in the verandah and put up a door. On finding that flow of air and light had been stopped, the Hon''ble Supreme Court held that his impaired the value and utility of the building. Therefore, the nature of construction is a relevant consideration. Section 13(2)(iii) of the Act enjoins that the tenant is liable to be evicted when he had committed such acts which are likely to impair materially the value or utility of the building or rented land. In judging the construction which converted one room into two and also fixing of a door is to be seen from the point of view of the landlord. In Vipan Kumar''s case (supra), it was held that impairment of the value or utility of the building is to be seen from the point of view of the landlord. It was observed that the statute on proof of case gives discretion to the Court to order eviction. Besides, in Satish Kumar''s case (supra) it was observed that no matter the construction increased the value of the building but so far as utility was concerned, it was to be seen from the point of view of the landlord of the premises and not of the tenant.
23. The learned counsel for the respondents has however relied upon a decision of this Court in Ved Parkash v. Darshan Jain, 1986(2) PLR 90. In the said case the landlord had not objected to the raising of the construction by the tenant and received rent for a long time from the time he gained knowledge of removal of wall by the tenant. The said case was considered in Satish Kumar''s case (supra) and was held to have no application to the case therein.
24. In a recent judgment in the case of
25. Keeping in view the above facts that there is no waiver or acquiescence on the part of the landlord with regard to the construction as also the fact the one of the room has been converted into two rooms by raising wall and a door has been put, it would amount to impairing the utility of the building even if not impairing its value. The contention of the learned counsel for the respondents that the wall can easily be removed and therefore, the alteration is inconsequential is without substance as even if the value is not diminished the utility is to be seen from the point of view of the landlord as per the settled law. When the landlord has found that the construction raised would impair its utility it does not lie on the tenant to content that the construction raised could easily be removed.
26. Keeping in view the above facts and circumstances the rent petition is accepted and the order dated 11.9.1987 passed by the Appellate Authority is set aside and that of the Rent Controller is restored. However, in the facts and circumstances of the case, the respondent is granted three months time to vacate the demised premises. No costs.
