JUDGMENT S.H.A. Baza, J.
1. The fate of this writ petition hinges on the reply of the question as to whether the constructions raised by a tenant which has not reduced the utility of the premises can be a ground for eviction in a suit filed by the landlord.
2. Section 20 (2) (c) of the U. P. Act No. 13 of 1972 provided that if the tenant has, without the permission in writing of the landlord, made or permitted to be made any such constructions or constructed or made structural alteration in the building, as is 'likely to diminish its value or utility or it disfigures', a Suit for eviction can be filed on that ground. The words 'likely to diminish its value or utility or to disfigure' are of paramount importance, meaning thereby, that a structural alteration in the building in the tenancy, within the meaning of the aforesaid provision, should be as such which has diminished the value or utility or disfiguring of the accommodation under the tenancy of a tenant, cannot be a ground for eviction, if such structural alterations have been made by a tenant without the permission in writing of the landlord, then the tenant can be evicted.
3. The word 'disfigure' has not been defined in the Act. According to Webster's Dictionary "disfigure" means ;
"To make less complete, perfect or beautiful or defence, deform or disguise by changing the figure or appearance."
Deform--To spoil the form or shape of, to distort, mar the excellence or perfection ;
Deface--To destroy or mar the face or external appearance Injure, spoil or mar by effecting important features or portions.
Thus, the word 'disfigure', as a common man understands, means that it has spoiled the external appearance of the building.
4. It is well-settled that b. P. Act No. XIII of 1972 is a welfare legislation for the protection of the tenant being evicted by the landlord. For that reason, a restriction on eviction has been Indicated in Section 20 of the U. P. Act No. XIII of 1972, which bars a Suit for eviction of a tenant except on specified ground.
5. Section 20 (2) (c) of the U. P. Act No. XIII of 1972 permits a landlord to file a Suit for eviction on the ground of construction or structural alteration in the building which is likely to diminish its value or utility or to disfiguring made by a tenant without permission in writing of the landlord.
6. With this prelude, I have to examine the factual aspect of the case.
7. The landlord-respondent No. 3 after sending a notice to the petitioner purporting to one under Section 106 of the Transfer of Property Act, filed a Suit for eviction of the petitioner on the ground of the alleged deformation made by the petitioner, as well as on the ground that the petitioner had made constructions or structural alteration in the building which was likely to diminish the value or utility or to disfigure the premises under his tenancy without obtaining any permission in writing from the respondent-landlord, It was also averred that the premises was let out to the petitioner for residential purposes but the petitioner has converted it for commercial purposes in violation of the contract.
8. The allegations contained in the notice were denied and a rent of Rs. 220 was sent through Money Order by the tenant to the landlord. The respondent No. 3 filed a Suit for eviction only on two grounds ; that the petitioner-defendant by effecting the material alteration and deshaping the accommodation coupled with the change in nature and use in other disregard, which was only meant for residential purposes and violated the terms of the contract and thus rendered liable himself for eviction.
9. According to the plaint allegation, the petitioner without obtaining the consent or permission of the respondent-landlord converted the open platform towards the north, Into a room, and is carrying on business in the name and style of 'M/s. Continental Commercial Company' and put up a signboard for the said business which mentions the business of repairs of Type-writers, Duplicators, Amonia Printing and other electrical machineries, etc. including the supply of spare parts and stationery.
10. The defendants denied the plaint allegations and contended that he has been using the house only for the residential purposes and that he has never made any alteration in the house, as alleged which has diminished its value or utility.
11. The trial court framed the following issues :
(1) Whether the defendant affected any material addition and alteration in the house in question? If so, its result?
(2) Whether the defendant caused substantial damage to the building? If so. its result?
(3) Whether the defendant has made inconsistent user or the house in question? if so, its result?
(4) Whether the notice is invalid? If so, its result?
(5) To what relief, if any, is the plaintiff entitled.
12. The plaintiff-landlord examined himself as P.W. 1 while the defendant-tenant examined himself as D.W. 1.
13. The trial court dismissed the Suit by observing that the landlord has failed to prove his case and hence he was not entitled to any relief claimed for. According to the trial court, the construction of a kitchen, lavatory and bathroom which have been constructed by the tenant cannot be said to have reduced the value of the house. Had the constructions would have been made in the business premises, it would be supposed that it would adversely affect the business and thereby reduced the value but as the premises is situated in a residential locality, the above constructions cannot be said to have reduced the value The constructions were made inside the house increasing its value cannot be said to deshape it. According to the P.W. 2, the outer room which was constructed on a Chabutra looks good. There is no other cogent evidence except the above, to indicate that the alleged constructions have reduced the value of the house or disfigured it.
14. Regarding the third issue, the trial court expressed the view that the plaintiff has failed to establish by any cogent evidence that the premises in question was being used as business premises. Being aggrieved, against the said order, the respondent-landlord filed a revision before the District Judge. Lucknow, which was transferred to the Presiding Officer. Nagar Mahapalika Tribunal, Lucknow/ Additional District Judge, Lucknow.
15. The revisional court observed that the finding of fact recorded by the trial court that the alleged constructions Increased the value of the premises and has not disfigured or deshaped the property in question is a finding of fact which cannot be disturbed. The revisional court also concurred with the finding of the trial court that the constructions would necessarily increase the value of the property and took note of the statement of P.W. 2 that after the constructions, the outer room looks good meaning thereby that there was no disfiguring.
16. Regarding the third issue, the revisional court also expressed an opinion that admittedly the petitioner-defendant has been living in the major portion of the property with his family and he has been using it for his residential purposes, if it is taken for granted that the outerroom is used for some Typewriter repairing, it cannot be said that the property is being put to a different use. The Addl. District Judge, allowed the revision and sent the case back to the trial court for deciding the dispute afresh on the point of diminution of value and utility of the house in question because of raising of the construction by the petitioner-defendant, but the Addl. District Judge, directed the Court below that it would not take further evidence on that point and after hearing the parties on the point of diminution or otherwise to the utility of the house in question decide the case.
17. After the remand, the trial court again dismissed the Suit after considering the evidence on record. The trial court observed that there existed no evidence on record to show that the value of the premises has diminished and its utility has been reduced. The trial court reiterated Its view that even according to the statement of the P.W. 2 the outer room which was constructed looked better and utility has been increased. Due to construction of the kitchen, lavatory and bathroom the value and the utility of the building has not been diminished but increased and the market value of the property has also increased. Being aggrieved, against the said order, the respondent-landlord again preferred a revision before the learned District Judge, which was transferred to 7th Addl. District Judge. Lucknow.
18. The revisional court relying upon the Commentary of Sri V. K. Sircar Book on U. P. Act No. 13 of 1972 and the observations of this Court in the case of G. Matranjan v. P. Chandawarayan. 1969 ALJ 19, expressed a view that material alterations were made by the tenant in the premises and hence the revision itself be allowed. Sri V. K. Sircar in the Commentary at page 338 indicated that however the diminution in value or utility of the building will have to be looked at, from the point of view of the landlord and not the tenant. He further remarked where the petitioner had divided the Verandah into the premises by removing the frame of the door which existed in the wall of the shop and fixed the same in the wait, which was erected by him on the outer side of the verandah adjoining the road, it was held that the tenant by making those alteration had impaired the value and the utility of the premises. The Addl. District Judge after allowing the revision set aside the order dated 19.3.1989 passed by the trial court and decreed the Suit of the respondent No. 3 by issuing him a direction to vacate the premises within three months. Being aggrieved against the said order, the petitioner has filed the present writ petition.
19. From the side of the petitioner, it was contended that the revisional court has not been vested with the power to reassess or reappraise the evidence nor to determine the issue of fact itself, it cannot enter into the evidence, assess it while determining the issue of fact, it was asserted that earlier the trial court dismissed the Suit, filed by the plaintiff on the basis of the assessment and appraisal of the evidence. The revisional court concurred with the finding of fact arrived by the trial court but remitted the case to the trial court only on a limited point to decide the case afresh in accordance with law, only on a question as to whether due to constructions raised by the petitioner-tenant, the value of the property in question, has diminished. Although in his judgment the revisional court had already field that the point of diminution, otherwise in the utility, because of the raising of construction by the defendant-opposite party, has to be appreciated and adjudged on the basis of the evidence on record, it is not legally permissible for the revisional court again to record its own finding but by means of the order dated 20.5.1989, the revisional court itself upset the finding of fact recorded by the trial court without giving a finding that the value of the property due to constructions raised has diminished its value.
20. It was thus contended that the judgment and the order passed by the revisional court which has been assailed in this writ petition was beyond the scope and the ambit of Section 25 of the Provincial Small Causes Court Act.
21. Hon'ble the Supreme Court in Malini Ayyappa Naicker v. Seth Manghraj Udhavdas Firm. AIR 1969 SC 1344, held that a wrong decision on fact is also a decree according to law which cannot be interfered into the revision and as such a decision cannot be subjected to revision.
22. In the case of Laxmi Kishore and another v. Har Prasad Shukla. 1981 ARC 545, a Division Bench of this Court held that the Court, exercising revisional power under Section 25 of the Act does not possess jurisdiction to determine issues on fact itself, by entering into the evidence and assessing it, it was further indicated that a Court acting under Section 25 of the Provincial Small Causes Court Act has no such power to determine question of fact which has been expressly taken away.
But the Court may interfere if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires, but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately, without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. it cannot enter into the evidence, assess it and determine an issue of fact.
23. In the case of Babu Manmohan Das Shah v. Bishnu Das, AIR 1967 SC 643, Hon'ble the Supreme Court after considering the expression "material alterations' occurring in Section 3 (1) (c), U. P. (Temporary) Control of Rent and Eviction Act. 1947 observed :
"Without attempting to lay down any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case. The alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the front and structure of the premises."
24. In Om Prakash's case. AIR 1987 SC 617. Hon'ble the Supreme Court observed :
"The Act does not define either the word 'material' or the word 'altered', in the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries, Concise Oxford Dictionary defines the word 'alter' as change in 'character', 'position' : 'materially' as an adverb means 'important' essentially concerned with matter not with form in words and phrases [Permanent Edition) one of the meanings of the word 'alter' is to make change, to modify to change, change of a thing from one form and set to another. The expression "alteration with reference to building means 'substantial' change varying, change the form or the nature of the building without destroying Us identity." The meaning given to those two words show that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity". It means that the nature and character or change or alteration of the building must be of essential and Important nature.
In the aforesaid case, it was further observed that :
"the essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation."
25. After considering Manmohan Das's case, Hon'ble Supreme Court in Brijendra Nath Bhargava and another v. Shri Harsh Wardhan and others, AIR 1988 SC 293 and relying on Om Prakash's case (supra) observed that :
"it is clear that this construction of the balcony or Dochhati which is a wooden structure does not amount to material alteration which could give a cause of action to the respondent landlord for filing a Suit of eviction."
26. In the case of Murlidhar and another v. IVth Additional District and Sessions Judge, Mathura and another. 1984 (2) LCD 152, Hon'ble R. M. Sahat, J.. as he then was expressed a view :
"If the construction raised by tenant enhances the value and increased its utility, it is difficult to agree that it shall amount to disfiguring it. That does not appear to be legislative intention. A tenant should not suffer eviction for the good he has done to building."
27. In the case of Ram Krishna Das u. Krishna Das Agrawal, 1991 (1) ARC 557, an Hon'ble single Judge of this Court observed that where the tenant has constructed a bathroom and latrine itself and the landlord himself has admitted that from outside the latrine and the bathroom were not visible and hence in that view of his admission it cannot be said that the alleged construction has disfigured the building.
It was further observed that :
"The question whether the changes made by the tenant amount to structural alterations in the building under tenancy within the meaning of Section 21 (2) (c) of the Act, is not a pure question of fact. The inference whether the alterations made by the tenant amounts to structural alterations from the facts established on the record is certainly an inference of taw and not of fact. Hence there is no force in this contention that this Court in revision is not entitled to consider the facts whether the alteration made by the tenant amounted to structural alteration within the meaning of Section 20 (2) (c) of the Act."
28. In the case of Pratap Narain and another v. District Judge, Azamgarh and another, 1995 Supp. (3) SCC 459, Hon'ble the Supreme Court after considering the decision in the case Associated Hotels of India Ltd. v. S. B. Sardar Ranjit Singh, AIR 1968 SC 933, observed :
"A perusal of clause (c) of subsection (2) of Section 20 of the Act 13 of 1972 would indicate that a Suit for eviction is maintainable only if the tenant is found to have made any structural changes without the consent of the landlord and that such changes resulted in diminishing the value of the building. Therefore, even if it is held that the structural changes were made by the appellant without the consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building. The High Court has not adverted to this aspect at all. Since the High Court omitted to record the finding on a vital aspect. the order passed by it cannot be maintained."
29. In the present case, the petitioner has only constructed a lavatory, bathroom and kitchen inside the premises and converted the outer Chabutra of the house Into a room. It was admitted by the P.W. 2 that due to newly constructed room, the premises looked better from outside.
30. As far as the construction of the lavatory, bathroom and kitchen is concerned, it was never the case of the plaintiff that the constructions raised by the petitioner altered the front show or the structure of the premises. As in spite of such constructions, the front and structure of the building may remain unaffected, hence it cannot be said that the constructions were of such a nature that it altered, the form, front and structure of the accommodation. Hence, it cannot be said that the petitioner has made or permitted to be made any such construction or structure in the building which has diminished its value or utility or disfigured It. Twice the trial court has given a finding of fact that due to said construction, the value or utility of the building had increased and the same has not been diminished or disfigured, such finding of fact should not have been disturbed by the revisional court, because the revisional court did not possess any power to examine the finding of fact arrived by the trial court, and to decide whether a finding of fact is Justified by the evidence on record or not. The revisional court' under Section 25 of the Act does not possess jurisdiction to determine the issues of fact itself, by entering Into the evidence and assessing it.
31. In view of what has been indicated, hereinabove, the writ petition succeeds. A writ in the nature of certiorari quashing the order dated 26.5.1989 passed by the VIth Addl. District Judge. Lucknow is issued.
32. However, considering the facts and circumstances of the case, there will7 be no order as to costs.