JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the tenant-petitioner. No one appeared for landlord respondents or their legal representatives in spite of sufficient service.
2. This is tenant's writ petition arising out of S.C.C. Suit No. 112 of 1979 filed by landlords-respondents Chandra Pal, Shrimati Mishri Devi and Shrimati Angoori Devi. Suit was filed before J.S.C.C. Aligarh. In the plaint it was stated that plaintiffs were the landlords and defendant-petitioner was tenant of the building in dispute, which was let out to him on 1.7.1978; that rate of rent was Rs. 200/- per month, that since the start of tenancy no rent had been paid and that tenant had made material constructions in the building in dispute. It was also stated in para 3 of the plaint that property in dispute had been taken on rent by the tenant for using the same as godown. It was no where stated in the plaint that eviction was also sought on the ground of inconsistent user. Tenant filed written statement stating therein that he had taken the accommodation in dispute on rent with effect from 1.10.1978 for residential purposes and that whatever changes and repairs had been made did not in any way disfigure the building or diminished its utility or value and that bath room and kitchen were repaired, water tank was placed and electric connection was installed as agreed between the parties. Tenant further pleaded that rate of rent was Rs. 60/- and not Rs. 200/- per month and that it was also agreed that the amount of Rs. 1000/- spent by the defendant in the repairs, minor changes and construction of water tank and installation of electric connection was to be adjusted from the rent @ Rs. 20/- per month
3. Trial Court / J.S.C.C. Aligarh held that the rate of rent was Rs. 60/- per month. It was further held that tenancy started from 1.10.1978 and not 1.7.1978. In respect of default, trial Court held that after getting the notice of termination of tenancy and demand of rent on 29.1.1979, tenant sent the rent from October, 1978 till February 1979 through money order which was refused by the landlord, hence tenant was not defaulter. In respect of constructions and structural changes made by the tenant it was held that the said changes and alterations neither disfigured the building in dispute nor diminished its value or utility. One of the landlords i.e. Sri Chandra Pal appeared as witness. He stated that the tenant had started residing in the accommodation in dispute instead of using the same for godown. The trial Court through judgment and decree dated 5.12.1979 dismissed the suit for eviction and permitted the plaintiff to withdraw the amount deposited by the tenant.
4. Against judgment and decree passed by the trial Court landlords-respondents filed S.C.C. Revision No. 3 of 1980. IIIrd A.D.J. Aligarh on 20.1.1981 framed additional issue to the effect "whether the premises in question were taken by the defendant for being used as a godown or for residential purposes". The case was remitted to the trial Court for decision on the aforesaid issue. It is important to note that in spite of framing of the additional issue and remittance of the same to the trial Court for decision, plaintiffs did not get the plaint amended by incorporating therein that defendant-tenant was liable to eviction on the ground of in consistent user as provided under Section 20(2)(d) of U.P. Act No. 13 of 1972. In the absence of such pleading no issue had been framed by the trial Court. It was not at all necessary for the Appellate Court to frame an issue in respect of the said ground and remit the same to the trial Court for decision. The trial Court while deciding the remitted issue held that the building in dispute was given on rent to the tenant for being used as godown. Thereafter the revision was decided by IIIrd Additional District Judge, Aligarh through judgment and order dated 11.8.1982. (Meanwhile Presiding officer of the Court of III A./D./J. Aligarh had changed). This writ petition is directed against judgment and order passed by the Revisional Court dated 11.8.1S82.
5. The Revisional Court agreed with the trial Court in respect of rate of rent, The revisional Court also held that as in the plaint eviction was not sought on the ground of inconsistent user hence suit could not be decreed on the said ground. The Revisional Court disagreed with the trial Court in respect of date from which tenancy started. Revisional Court held that there was ample evidence on record including documentary evidence, to show that tenancy had started from 1.7.1978 and not 1.101078 and that the documentary evidence had completely been ignored by the trial Court. Tenant had applied for electric connection in the building in dispute prior to 1.10.1978. This was a very important circumstance which had been proved through documentary evidence, including application of the tenant for getting electric connection The finding of the revisional Court in this regard is therefore, perfectly legal. The Revisional Court set aside the judgment and decree passed by the trial Court and decreed the suit for eviction on two grounds i.e. on the ground of default and construction and structural alterations made by the tenant in the building in dispute.
6. As far as the ground of default is concerned, tenant had deposited the entire amount on or before the first date of hearing. The deposit was much more than required as rent had been deposited @ Rs. 200/- per month while ultimately it was found to be only Rs. 60/- per month. It appears that there was some confusion regarding deposit of rent under Section 20(4) of the Act and under Order XV Rule 5 C.P.C. Tenant is not liable to deposit the same rent twice - once under Section 20 (4) of the Act and then under Order XV Rule 5 C.P.C. In view of some confusion regarding this legal position tenant filed an application before the trial Court that deposit made by him could be treated to be under Order XV Rule 5 C.P.C. and he was not claiming benefit of Section 20(4) of the Act. In any case, tenant did not make his deposit conditional. Accordingly in spite of said application tenant was entitled to the protection of Section 20(4) of the Act. In this regard, therefore, the findings of the revisional Court are erroneous in law, hence set aside,
7. The most important thing to be decided in this writ petition is as to whether the finding of the revisional Court to the effect that tenant was liable to eviction under Section 20(2)(c) of the Act is correct or not. The said provision is quoted below:
20.Bar of suit for eviction of tenant except on specified grounds: xxx xxx xxx (2).A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: xxx xxx xxx
(c) That the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it.
8. Trial Court in its judgment held that in para 5 of the plaint it was admitted that kitchen was also given on rent. This is not correct. In respect of construction made by the tenant, it was stated in para 5 of the plaint that the defendant without permission of the landlord had constructed a kitchen and a bathroom in the accommodation in dispute. In the same para it was stated that at the time of letting out building contained two big rooms, one Baithak, one gallery, one staircase and one latrine and that the tenant had removed the two wooden doors and had replaced them with Janglas and had fixed a wooden door at newly constructed bath room and had fixed a wooden door on the gallery and had changed the door of staircase and had placed a water tank in/over latrine, kitchen and bathroom. In para 6 of the plaint it was stated that constructions made by the tenant had damaged the building and had changed its figure. It was not stated that the constructions made by the tenant disfigured the building. There is some difference between changing the figure of and disfiguring the building. In the oral statement one of the landlords i.e. Chandra Pal stated that in the front room tenant had raised two walls of 9 inches width and constructed a kitchen in that manner. The word used to describe 9 inches wall was "vksV", which means a sort of temporary wall used to cover, shield or separate. Chandra Pal also admitted in his evidence that prior to letting out building to the defendant an electricity Operator was residing therein and Anr. person was also residing in the house in dispute without any rent as he was a tutor / teacher and taught the children. In the examination-in-chief Chandra Pal did not say any thing regarding construction of bath room, In the cross examination he stated that there was no bath room prior to letting out which was constructed after ward and that prior to that it was latrine which was in the same position. From this statement it appears that tenant separated a portion of latrine for being used as Bath room and fixed a wooden door on that portion.
9. Trial Court had held that construction of kitchen and bathroom did not diminish the value or utility of the building. Revisional Court agreed with the said finding. However, revisional Court held that as on the additional issue earlier framed by Presiding Officer, a finding had been recorded by the trial Court to the effect that building was let out for being used as godown, construction of kitchen and bathroom diminished the value and utility of the building as a godown. In this regard it is important to note that in the oral statement the landlord himself admitted that prior to the defendant two other persons had been given the building in dispute for residential purposes i.e. A teacher and an Operator of Electricity Department. In view of this statement it can not be said that the building in dispute was exclusively meant for being used as Godown.
10. Neither it was pleaded nor proved by the landlord that Bathroom had been constructed as an altogether new structure by digging foundation and raising walls in open land and by placing roof thereupon. What may be gathered from the evidence of the plaintiff is that the tenant converted a portion of latrine into bath room by raising wall and placing a new door. If an altogether new structure in the form of bath room had been raised by the tenant then there was no occasion for the landlord to emphasise time and again that new door was fixed on the bathroom. Even otherwise the Revisional Court rather agreed with the contention of the tenant that constructing bath room and godown did not diminish the value and utility of the building as a residential house.
11. Supreme Court in Waryam Singh v. Baldev while construing a some what similar provision of East Punjab Rent Control Act, has held that closing a Varandah by constructing walls and placing rolling shutters in front did not justify an inference that the value or utility of the building had been impaired in the absence of evidence led by the landlord to prove that the value or utility had been affected. In a recent authority reported in G. Reghunathan v. K.V. Varghese 2005 A.I.R.S.C.W. 4086, the Supreme Court after noticing its several earlier authorities including that of Waryam Singh (supra) held that whether the constructions made by the tenant amount to such alteration which diminished the value and utility of the building is a mixed question of law and fact. Para 12 of the said authority is quoted below:
12. From the above, it is clear that the question depends on the facts of the case. The nature of the building, the purpose of the letting, the terms of the contract and the nature of the interference with the structure by the tenant, are all relevant. The destruction or damage has to be adjudged from the stand point of the landlord. Let us look at the facts in the present case. The building is 75 years old. According to the tenanat, it is 80 years old. The difference is not of any significance. It is the northern room in a building consisting of a number of rooms. It is let out for 15 years for a jewellery trade. The term has, of course, not come into effect for want of registration of the deed. The door in the western wall has been bricked up. The windows on the northern, western and southern walls have also been bricked up. Obviously, the bricked up portions can be removed and the doors and windows restored without weakening the structure. But more importantly, the level of the floor was lowered, the rafters cut, two concrete pillars erected and a rolling shutter fixed. The lowering of the floor and the tampering with of the roof, is of some significance. They could lead to impairment of the value or utility of the building, materially and permanently. That again has to be judged in the light of the surrounding circumstances. But a rolling shutter has been fixed. That provides more security to the premises. The height of the floor can be restored without impairment to the structure. Here, we find that the landlord has not even ;pleaded that the alterations made by the tenant have destroyed or reduced the value or utility of the building materially and permanently. No doubt, he has stated so in his evidence. But the tenant has stated that, considering that it was a jewellery business that was being started, these things had to be done. Securing of the premises was essential. I He had given to the landlord Rs. 85000/- as security to be returned, when he vacated the building. The value of the building, if at all, has only been enhanced. In this state of the record, it is not possible to infer that the acts of the tenant have materially and permanently destroyed or reduced the value or utility of the building. The age of the building cannot be ignored. The purpose of the letting cannot be ignored.
There cannot be any doubt that some structural alterations / repairs were made by the tenant because tenant himself admitted the said fact. In the oral evidence tenant stated that he effected all these repairs / changes prior to the start of tenancy. In this regard Revisional Court has taken into consideration the documents filed by the tenant himself. It is inconceivable that a landlord will permit the prospective tenant to make any sort of repair or change or to use the building in any manner before start of tenancy.
12. In the plaint it was not pleaded that constructions made by the tenant diminished the value or utility of the building or disfigured the same. What was pleaded was that it damaged the building and changed the shape of the building. With regard to the damage to the building there is no finding.
13. Accordingly, I am of the view that tenant only made structural changes by converting a portion of the room into kitchen and a portion of the latrine into bath room. The constructions or structural alterations made by the tenant neither diminished the value nor utility of the building nor disfigured the same. Accordingly tenant is not liable to be evicted under Section 20(2)(c) of the Act.
14. Accordingly findings of the revisional Court that tenant was not entitled to the benefit of Section 20(4) of the Act and the finding that the tenant was liable for eviction under Section 20(2)(c) of the Act also are set aside. Writ petition is, therefore, allowed. The judgment and order passed by the Revisional Court is set aside and the judgment and decree passed by the trial Court is restored.
15. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 that while granting relief to the tenant against eviction in respect of building covered by Rent Control Act, Writ Court is empowered to enhance the rent to a reasonable extent. Rent of Rs. 60/- per month for a house having three rooms is highly inadequate Accordingly it is directed that with effect from January, 2006 tenant petitioner shall pay rent to the landlord respondent at the rate of Rs. 700/- per month.