JUDGMENT Anjani Kumar, J.
1. This writ petition filed by the petitioners who are the tenant of the accommodation in question challenge the orders dated 6.4.1998 (Annexure-9 to the writ petition) passed by the trial court and the order passed by the revisional court dated 20.11.2004 (Annexure-11 to the writ petition).
2. The facts giving rise to the present writ petition are as under :
That the landlord-plaintiff after serving the notice determining the tenancy of the petitioners filed a suit being Suit No. 105 of 1984 for arrears of rent and ejectment on the ground firstly that the petitioners are in arrears of rent and has not paid the same in spite of notice being served on him and secondly that the petitioners have made structural alteration in the accommodation in dispute which has diminished its value and utility. The trial court after exchange of the pleadings and evidence on record, by the Judgment and order dated 26.3.1990, decreed the suit. Aggrieved thereby petitioner preferred a revision being S.C.C. Revision No. 41 of 1990 which was allowed by the revisional court and the matter was remanded back to be decided afresh in the light of the observations made in the order of the revisional court. On remand the trial court again decreed the suit by the order dated 17.11.1992 against which the petitioner preferred a revision being S.C.C. Revision No. 148 of 1992. The revisional court again allowed the revision and the matter was remanded to the trial court to be decided in the light of the observations made by the revisioal court. The trial court after remand again by the order dated 6.4.1998 decreed the suit on the ground of material alteration. However, the suit was dismissed on the ground of arrears of rent and ejectment on that basis. Against this, petitioner-tenant preferred a revision being S.C.C. Revision No. 60 of 1998 which has been dismissed by the revisional court by the order dated 20.11.2004. Thus, this writ petition.
3. So far as the, point regarding petitioner's being in arrear of rent is concerned, the trial court dismissed the suit which is maintained by the revisional court and since the landlord has not filed any revision against the order of the trial court dismissing the suit on the ground of arrears of rent the suit stood dismissed so far as that ground is concerned. This writ petition is confined only to the point on which the trial court decreed the suit , i.e., on the point of material alteration and revisional court affirmed the findings of the trial court. The revisional court have categorically recorded the finding that the case set up by the petitioner-tenant is that these constructions were in existence since 1959 when the tenancy was created in favour of the defendant's predecessor namely, their father. The revisional court has considered the argument advanced on behalf of the petitioner and affirmed the finding arrived at by the trial court to the effect that the constructions were raised some time in the year, 1983-84. The trial court as well as the revisional court has also recorded the finding that the petitioner has taken inconsistent stand so far as the reply of the notice and the written statement is concerned. In view of the aforesaid fact trial court analysed the evidence that the constructions were raised after 1959 and sometime in the year, 1983-84. There is no dispute with regard to this aspect of the matter, in view of the law that the construction raised by the petitioner are of the nature which alters the accommodation in dispute and diminishes its utility. Learned counsel for the petitioner tries to challenge these findings arrived at by the trial court and affirmed by the revisional court to the effect on the strength of the decision of this Court in Zubeda Khatoon and Ors. v. Vlth Additional District Judge, Lucknow and Ors. 1998 (4) AWC 804 : 1999 (1) ARC 74, wherein this Court 'relied upon the observations made in the decision of the Apex Court in the case in Om Prakash v. Amar Singh 1987 (1) AWC 306 (SC) : 1987 (1) ARC 185 (SC), which reads as under :
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 words '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 its 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 of change or alteration of the building must be of essential and important nature.
4. Learned counsel for the petitioner further relied upon the decision of this Court in Murli Dhar and Anr. v. IVth Additional District and Sessions Judge, Mathura and Anr. 1984 (1) ARC 207. Para 5 thereof is relevant which is reproduced below :
5. Disfigure has been defined in Webster to mean to make less complete, perfect or beautiful or deface, deform or disguise by changing the figure or appearance. Normally the word is understood as spoiling the appearance or sullying it. Although one of the meanings as seen above is to disguise the appearance by changing the figure, but the basic characteristic appears to be same that is disguising it by spoiling, injuring etc. Apart from the dictionary meaning a word should be understood in the context it has been used. The use of two earlier words that is diminishing the value of the building or its utility shows that disfiguring should also be understood in somewhat similar sense. That is it must result in spoiling it. If the constructions raised by tenant enhances the value and increases 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 goods he has done to building.
5. Learned counsel for the petitioner further relied upon the decision of the Apex Court in Pratap Narain and Anr. v. District Judge, Azamgarh and Anr. 1996 (1) ARC 264, para 4 whereof says as under :
4. We do not consider it necessary to decide the larger issue as to whether the conduct of the landlord precluded him from filing, the suit for eviction or that the notice issued in 1970 and the assurance given by the tenant having been accepted, it resulted in satisfying the requirement of law as we are satisfied that the other argument raised by the learned Counsel for the applicant is well-founded. A perusal of Clause (c) of Sub-section (2) of Section 20 of 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.
6. Learned counsel for the petitioner further relied upon the decision of this Court in Harnam Das v. IInd Additional District Judge, Shahjahanpur and Anr. 2004 (2) ARC 545, para 3 whereof is relevant and is reproduced as under :
3. Learned counsel appearing on behalf of the petitioner argued that the finding regarding material alteration is perverse and based on a report, which cannot be said to have been proved according to the evidence, which is inadmissible and the said report was submitted by the Commissioner in connection with some other suit, he therefore, submitted that this report is inadmissible. Learned counsel for the petitioner has not been able to demonstrate that the evidence, which has been relied upon is inadmissible, as such this argument deserved to be rejected and is hereby rejected. However, to me it appears that the ground of material alteration is not sufficient for ejectment of the tenant even if the finding is that the tenant has materially altered the accommodation in question. In view of the provision of Section 20 (2)(d) of the Act, this material alteration is of such a nature, which diminishes the value of the accommodation in question. There is neither any pleading, nor any finding by the revisional court, in this regard. In this view of the matter, the order passed by the revisional court deserves to be quashed.
7. On the strength of the aforesaid decisions, learned Counsel for the petitioner submitted that even assuming the findings of the trial court and affirmed by the revisional court may be correct, there has to be finding for decreeing the suit on the ground of material alteration to the effect that there has been material alteration and the same has been undertaken by the tenant without consent of the landlord in writing and thirdly such material alternation resulted into diminishing value and utility of the building. Learned counsel for the petitioner tries to argue in vain that there is no such finding and the view taken by the trial court and affirmed by the revisional court that the suit is liable to be dismissed for material alteration suffers from manifest error of law which deserves to be quashed by this Court.
8. Learned counsel for the respondent has pointed out that all the three necessary ingredients have been found in the present case and the finding recorded by the trial court and affirmed by the revisional court against the petitioner that being the situation since has not been demonstrated to suffer from any error much less manifest error of law in view of the decision of the Apex Court in Ranjeet Singh v. Ravi Prakash 2004 (2) AWC 1721 (SC) : 2004 (2) SCCD 815 : 2004 (1) ARC 613, this writ petition deserves to be dismissed and is hereby dismissed.
9. Learned counsel for the respondent relied upon the decisions in Sohan Lal v. Ram Prakash 1988 (2) ARC 243 ; Babu Ram and Ors. v. Special Judge/A.D.J, Bijnor 2004 (3) AWC 1913 : 2004 (1) ARC 580 ; Smt. Swaran Devi and Ors. v. Smt. Meenakshi Gautam alias Chandrawati Devi and Ors. 1993 (2) AWC 860 : 1993 (1) ARC 493 ; Ranjeet Singh v. Ravi Prakash 2004 (2) AWC 1721 (SC) : 2004 (2) SCCD 815 : 2004 (1) ARC 613 and Ashok Kumar and Ors. v. Sita Ram 2001 (3) AWC 1997 (SC) : 2001 (2) ARC 1, and submitted that in view of the categorical findings which are based on the admission of the petitioner-tenant that the structural alteration has been made by the petitioner without the consent of the landlord in writing coupled with the finding that the same has diminished the utility of the building in question, no interference is warranted by this Court under Article 226 of the Constitution of India.
10. In view of the above discussion, the argument advanced on behalf of the counsel for the petitioner, has no force and is liable to be rejected and is hereby rejected. The writ petition is dismissed. Interim order, if any, stands vacated.