JUDGMENT Prakash Krishna, J.
1. This Is tenant's revision under Section 25 of the Provincial Small Causes Court Act, against the judgment and decree dated 28.9.1991, -passed by 4th Additional District Judge, Allahabad In S.C.C. Suit No. 192 of 1980. The trial court has decreed the suit for eviction of the applicants and also for recovery of water taxes, arrears of rent and damages etc.
2. The plaintiff landlord (opposite party) Instituted the suit on the pleas inter alia that the plaintiff Is landlord and owner of the shop Nos. 9, 10 and 11 with their back galleries situate In premises No. 17/33A, Mahatma Gandhi Marg, Allahabad, on a monthly rent of Rs. 720 besides water taxes payable as part of rent at the rate of 14 per cent wherein the defendants No. 1 and 2 are carrying on the business under the name and style of 'Mercury'. The shops were let out for the purposes of opening of dry cleaner shop. The defendants are in arrears of rent since January, 1980 and the tenancy has been terminated by serving a registered 'notice dated 15.10.1980. But in spite of service of notice they did not pay the arrears of rent and water tax nor they have vacated the disputed shop. It has been further pleaded that the shops were let out for the purpose of dry cleaning business of clothes but they have opened a workshop for cleaning of clothes by water (wet method) and have constructed water storage tankers In the premises and have thereby materially damaged the building. Partition walls between the shops have been demolished, new openings have been made and another roof converting all three shops into double decker has been built, demolished bathrooms and latrine In shops, removed doors, show windows, doors and grills etc. from the shops and misappropriated them. The defendants, thus, have altered the structure of shops and thereby materially diminished the value of the shops and building. They have also made water storage tanks over the open roof which is causing nuisance and water tanks behind the shops on open passage.
3. The suit was contested by the defendants on the pleas inter alia that the plaintiff was one of the owners and landlords of the premises In dispute, other owners are Surya Narain Chaudhary and Chandra Narain Chaudhary who have not been made party to the suit and thus the suit is not maintainable. It was pleaded that the shops were let out for business purposes and they are carrying on the business of dry cleaning and dyeing, etc. since very inception of tenancy, water tax was never demanded from them, the rent has been deposited under Section 20(4) of U. P. Act No. 13 of 1972, deposits have also been made under Section 30 of the aforesaid Act. It was further pleaded that the defendants did not make any addition or alterations In the disputed shop nor they have removed any building material as alleged In the plaint and water storage tanks were existing since the very Inception of tenancy and that the plaintiff Is not entitled to any relief.
4. During the pendency of the suit the plaint was got amended. Para 8A and other amendments were Incorporated on the allegation that the defendants caused and permitted to be caused substantial damages to the shops In tenancy described therein and are also liable for ejectment on that ground also. Plea that the defendants have denied the title of the plaintiff by claiming that the plaintiff is not sole landlord was Incorporated by adding para 10A in the plaint. The amendment of the plaint was allowed by the trial court by the order dated 25.4.1986 and one week was allowed to file additional written statement in reply to the amended paras of the plaint. The additional statement was not filed within the stipulated time and it was filed subsequently which was not taken on the record by the order dated 12.5.1986. There being no additional written statement In reply to the amended paras of the plaint; pleas raised by way of amendment In the plaint remained uncontroverted.
5. The plaintiff landlord examined himself as P.W. 1 and was cross-examined on several dates. But before the close of cross-examination, the defendants absented themselves and did not participate further in the proceedings. The trial court decreed the suit by its judgment and decree dated 28.9.1991, on the findings that the defendant is the sole owner and landlord of the disputed shops and was entitled to institute the suit and the suit was not bad for non-Joinder of other owners Surya Narain Chaudhary and Chandra Narain Chaudhary as under the provisions of U. P. Act No. 13 of 1972 the liability to pay water taxes is on the defendant tenant under Section 7 of the Act. The shops were let out for business of dry cleaning and the defendants are using the same for other purposes. It has also been found that after the commencement of tenancy, the defendant tenant is using chemicals and colours and has demolished the intervening walls of the three shops and constructed double decker roof and gradually raised the construction of water tanks, water storage, damaged the R.C.C. pillars by breaking it and caused damages to the building and on account of water tank on the roof there is dampness in the building. All these constructions, alterations and modifications have diminished the value and utility of the building and disfigured it. The defendants are also liable for ejectment for denial of the title of the plaintiff opposite party.
6. Aggrieved against the aforesaid judgment and decree the present revision was filed in the year 1992 and since then it has not been admitted but stay order staying the eviction of the defendant tenants was passed on 31.1.1992. The revision was dismissed in default on 23.3.1992 and was restored to its original number subsequently on 14.5.1992. The stay order is continuing and has been extended from time to time and in the meantime the High Court summoned the record of the suit but the revision could not be heard for one reason or the other although it was ordered to be listed and was listed peremptorily on various dates. The sole landlord opposite party, in the meantime expired on 7.12.2000, his son Surya Narain Chaudhari has been substituted by the order dated 4.4.2003. On 21.4.2006, the case was passed over on the illness slip of one of the counsel for the applicants and was ordered to be listed in the next cause list peremptorily and was listed thereafter on 28.4.2006, when the matter was heard. It was made clear to the counsel that further adjournment is not possible.
7. Heard Shri Atul Dayal, advocate, in support of the' revision who submitted that the findings recorded by the court below on issue No. 7 with regard to the constructions, structure alterations made in the building as it is likely to diminish its value or utility or disfigured it, as required under Section 20(2)(c) of the Act, is liable to be set aside on the short ground that such constructions etc. were made in the year 1970 vide para 9 of the plaint itself. The plaintiff landlord has acquiesced to these constructions by not raising any objections when these constructions were made and therefore the said ground is now not available to the landlord for eviction of the applicant tenants. The finding of the trial court under issue No. 6 that there has been a change of user of the building in question is vitiated inasmuch as admittedly the shops were given for carrying on the dry cleaning business, washing and dyeing of clothes is incidental and ancillary to the dry cleaning business and as such it does not amount change of user of the building, The finding of denial of title and making it a ground for eviction under issue No. 8 was challenged on the ground that the allegations made in the paragraph with reference to the above plea does not amount denial of the title of the landlord.
8. Shri Atul Dayal, learned Counsel for the applicant could not dispute the observations made in the judgment under revision that the defendants after cross-examining the plaintiff landlord at some length left the case unattended without completing cross-examination and did not produce any oral evidence in support of defence version.
Issue No. 6 : Change of User :
9. One of the grounds on which eviction order has been passed is change of User of the premises In question. The trial court under Issue No. 6 has found that the shop In dispute was let out for dry cleaning purposes only, as a show room. The defendants have admitted that the shops are being used for dyeing and washing clothes. The evidence of the landlord- that the shops were given for doing dry cleaning business, only, remained uncontroverted. The plaintiff landlord has proved the fact that the shop In question was given as show room of dry cleaning shop. Section 20(2)(d) of the Act provides inconsistent use of the tenanted premises, as one of the grounds for evicting a tenant. Section 20(2)(d) reads as follows :
that the tenant '(has without the consent in writing of the landlord used It for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use), or has been convicted under any law for the time being In force of an offence of using the building or allowing it to be used for illegal or Immoral purposes.
1. Subs. U. P. Act No. 28 of 1976, dated 5th July, 1976.
10. The learned Counsel for the applicant (tenant) submitted that washing or dyeing of clothes is ancillary to the dry cleaning business and has relied upon a Judgment of the Apex Court in the case of Mohan Lal v. Jai Bhagwan . In this case shop was let out for carrying on the business of English liquor vend. It was changed over to General Merchandise business. Change of user, it was found, would not cause any mischief or detriment or Impediment to the shop in the sense that it could be called an allied business in expanding concept of departmental stores. Under Clause (d) of Section 20(2) of U. P. Act No. 13 of 1972, a tenant can be evicted from a building after determination of his tenancy, if the tenant has without the consent in writing of the landlord used it for the purposes other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is Inconsistent with use. The phrase "or otherwise done any act which Is Inconsistent with use" was not there in Haryana Urban (Control of Rent and Eviction Act) In the case of Mohan Lai (supra). The case of the landlord Is that the shop was given as a show room for dry cleaning business. The tenant has started (wet) washing, cleaning and dyeing the clothes in the shop with the help of water, chemicals and colours, etc. meaning thereby the tenant has undertaken use of chemicals, waters and colours, etc which was not Intended to be used while using the disputed shop as a show room of dry cleaning business. In this view of the matter the finding of the court below on this issue does not suffer with any error of law or fact.
Issue No. 7 : (Structural alterations under Sections 20(2)(b) and 20(2)(c) of the Act:
11. The finding under issue No. 7 to the effect that the defendant-tenant has constructed water tank etc. and is using chemical colours and has removed the Intervening walls and also constructed double decker roof, etc. has not been challenged here. The additions or alterations made by the defendants tenants is not in dispute In this case. Nor they have been challenged before this Court.
12. The only plea urged by the learned Counsel Is, that these constructions were made as stated in para 9 of the plaint In the year 1970 therefore, the landlord is estopped to raise this plea In the year 1980. To appreciate the said contention It Is appropriate to reproduce para 9 of the plaint.
That the defendants demolished and removed the partition wall between the shops, made new openings, made another roof converting all the three shops into double decker and demolished bath rooms, latrine in shops, removed doors, show windows, glasses and grils etc. from the shops and misappropriated them. The defendants constructed a room in shop No. 9 and fixed a boiler with tubes in shops by digging floor and breaking walls. Thus, the defendants have altered the structure of the shops materially, thereby diminished the value of the building. The defendants made the addition and alternations In the year 197O and thereafter upto the date of the suit.
13. It may be pointed out that the last sentence in the above para was added by way of amendment in the plaint and in the same breath the plaintiff applicant has also added para 8A in the plaint. The said paragraph reads as follows :
8A. That the defendants caused and permitted to be caused the following substantial damages to the shops in the tenancy and are liable to ejectment on that ground also :
(a) That the defendants have broken the down pipe, choked the pipe on the roof causing stagnation of water on the roof and has constructed water tanks on Chhat for washing clothes and also wash clothes on the roof, due to which water percolates down due to seepage causing dampness in the building which has caused the following damages in the premises in suit.
(i) disintegration of bricks.
(ii) softening, crumbling of plaster.
(iii) erosion of iron bars used in construction of building.
(iv) reduction in strength of the building.
(b) The defendants deliberately used in the shops for storing soda, bleaching powder and other chemicals used in wet washing and dyeing of clothes thereby causing erosion and damage to the floor and walls.
(c) The defendant for wet washing has deliberately Installed a boiler in the shop by digging the floor and laying steam pipe in the wall. This act damaged foundation and floor of the building.
(d) The defendants fixed a number of machines by digging the floor. The machines are causing vibrations which are effecting the strength and life of the building.
(e) The defendants used the shops for washing clothes with chemicals thereby caused damage to the floor and walls.
(f) That the defendants deliberately choked the nali with "rakh" and causing stagnation of water near the foundation causing dampness in the building especially back wall of the shops.
(g) The following be added in para 9 of the plaint before the last line.
The defendants constructed a room in shop No. 9 and fixed a boiler with tubes in shops by digging floor and breaking walls.
14. The aforesaid amended pleas, as pointed out above, remained uncontroverted in absence of any additional written statement on behalf of the defendant-applicants. No evidence In rebuttal could be produced by the tenant applicant and these constructions, structural alterations and additions clearly falls within the mischief of Section 20(2)(b) and (c) of the Act.
15. Recording of the evidence of the plaintiff was started on 1.2.1985. On this date examination-in-chief was recorded and 18.2.1985 was the date fixed for the cross-examination. Before the beginning of the cross-examination the plaintiff landlord got the plaint amended by incorporation of paragraph 8A and last sentence in the paragraph 9 of the plaint, besides other pleas in the plaint. In the examination-in-chief after amending the plaint, the plaintiff has stated that the shop was given for the purpose of show room of dry cleaning business. The defendant tenant has taken water connection for commercial purposes in the year 1978 and thereafter started the business of washing of clothes from the shops. Earlier to 1978 he had a workshop near Shivkuti wherein cleaning of clothes used to be done with the help of tube well water. For washing purposes the tenant has constructed three water tanks abutting the wall of shops and two water tanks on the top of the roof of the shops. The construction work of the water tanks on the roof started in the year 1979 and it was found in unfinished stage in October, 1980 when the Court issued a commission. After the execution of the commission the tenant has completed the construction of water tanks and put in a drain pipe through which the water discharges and goes down towards the foundation of the building. There is seepage of water in the walls of the shops. The water reservoirs/tanks, thus constructed are not damp proof with the result there is seepage of water in the roof which has damaged the iron bars the linter, plaster, etc. The dampness, thus, caused, has diminished the life of the building and has damaged plaster of shop; the dampness is causing rusting and erosion of iron bars used in the building. The tenant is using acid, soda and chemicals for washing purposes resultantly the life of the shop has been diminished. The surface area of water reservoir on the roof is so big that it has added substantial load on the linter. The photographs of the disputed shops were also filed. The plaintiff was cross-examined on number of dates such as 30.4.1985, 9.5.1985 and 22.5.1985 so on. Before finishing the cross-examination the defendant tenant ran away from the scene and did not participate further in the proceedings. The evidence of the parties was closed. In the above backdrop argument that these constructions were raised in the year 1970 as per para 9 of the plaint is misconceived and is not supported by any evidence. The last sentence of para 9 of the plaint on which much emphasis was laid by the learned Counsel cannot be read in isolation. The sentence has to be read in the context in which it is used along with the other paragraphs of the plaint. On a fair reading of the paragraphs 8A, 9 and 10 of the plaint it is clear that the plea of the plaintiff is that the defendant tenant started making additions and alterations in the year 1970 and continued the same upto the date of the suit. Confining period of additions and alterations in the year 1970 would amount doing violation with other paragraphs of the plaint. Even in the sentence under consideration the phrase 'and thereafter upto the date of the suit' is indicative of the fact that constructions and additions were started in the year 1970 and carried on over the period upto the date of filing of the suit. On a plain reading of the plaint, it is difficult to uphold the submission of the learned Counsel for the applicant.
16. Before proceeding further it is appropriate to reproduce relevant statutory provisions in this regard, i.e.. Section 20(2)(c) and 20(2)(a) of U. P. Urban Buildings (Regulation of Letting Rent and Eviction Act), 1972 which reads as follows :
20 (2). A suit for the eviction of a tenant from a building after the determination of the tenancy may be instituted on one or more of the following grounds, namely :
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand :
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" In this clause shall be deemed to have been substituted by the words "one year.
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building ;
(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 ;
(d) that the tenant '(has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use), or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes.
1. Subs. U. P. Act No. 28 of 1976, dated 5th July, 1976.
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building :
(f) ....
(g) ....
17. It is clear from the above that a tenant cannot make any such construction or structural alterations in the building as is likely to diminish its value or utility or to disfigure it without the permission in writing of the landlord. The extent of construction or material alterations made by the defendant/tenant is not presently in dispute in the revision.
18. Disfigurement of tenanted building by a tenant without written permission of landlord is itself a ground available to a landlord to seek the eviction of tenant. The offended constructions has "disfigured" the building could not be challenged .in revision being a question of fact, Itself is sufficient to decree the suit for ejectment under Section 20(2)(c) of the U. P. Act No. 13 of 1972. The word "disfigure" has not been defined in the Act. According to Webster's Dictionary "disfigure" mean : To make less complete, perfect or beautiful or deface, deform or disguise by changing the figure or appearance" Deform to spoil the form of shape or 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 understand, mean that it has spoiled the external appearance of the building.
19. The conversion of three shops into one shop from the point of view of the landlord has definitely diminished the value and utility of the building. In the case of Bipin Kumar v. Roshan Anand, JT 1993 SC 171, it has been held "impairment of value or utility of building is from the point of the landlord and not of tenant. The first limb of Clause III of Sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of building has been materially impaired. The acts of the tenant must be such that erection of wall had materially impaired the value of the utility of the demise premises". The aforesaid observation has been approved and followed subsequently by it in the case of Gurbachan Singh v. Shivalik Rubber Industries . The meaning of the expression " to impair materially'' in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object of a person. It may also be noted here that the aforesaid two cases of the Apex Court were noted by it in the case of Wariyam Singh v. Baldeo Singh, . Therefore, there is no departure of the above legal position till date.
20. The learned Counsel in support of plea of waiver has placed reliance upon a judgment of this Court in Ram Krishan Das v. Krishan Das Agrawal, 1991 (1) ARC 557. The proposition in the above case was given in a different factual backdrop and has no application to the facts of the present case for reasons more than one. There is no evidence worth the name on record to show that at any point of time the landlord waived his right. Secondly, there is no pleading to this effect on behalf of the defendant tenants in their written statement. The defendants have come out with a case that all these constructions were in existence at the time of the commencement of the tenancy. If that is so there was no question of waiver. The defendant-tenants have failed to prove the case pleaded by them that these constructions were already in existence at the time of the commencement of tenancy. Therefore, the plea of waiver raised for the first time before this Court, in absence of pleadings or evidence, is liable to be rejected.
Issue No. 8 : Denial of TitleSection 20(2) (ft:
21. The defendants tenant in reply to the original plaint have stated in para 1 of the written statement, as follows :
That in para 1 of the plaint it is admitted that the plaintiff was one of the owner and landlord of the premises in dispute. Other owners are Surya Narain Chaudhary and Chandra Narain Chaudhary, they have not been made parties to the suit and as such the suit by the plaintiff alone is not maintainable.
22. The aforesaid plea has been held by the court below as denial of title of the plaintiff landlord. Shri Atul Dayal, advocate, has placed reliance upon a judgment of Apex Court in the case of Bela Das v. S. N. Base , wherein it has been observed that the defendant had admitted, that he was a tenant under the plaintiffs but was merely asserting that there were some more landlords in the premises in question, therefore It was held that it is not a case of denial of relationship of landlord and tenant between the parties.
23. As a matter of fact, the Apex Court in the aforesaid case was not called upon to decide the question what amounts the denial of the title of the landlord. The Apex Court in the case of Sheela and Ors. v. Firm Prahlad Rai Prem Prakash, . has held that it is the intention of the tenant as culled out from the nature of plea raised by him which is determinative of its vulnerability. It has been further held that the allegation of denial of title has a serious consequence, therefore, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up the title of landlord in himself or in a third party. A tenant's bona fide calling upon the landlord to prove his ownership or put the landlord to prove his title so as to protect himself or to earn a protection made available to him by rent control law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.
24. In J. J. Pal Put. Limited and Ors. v. M. R. Murli and Anr. . it has been held by the Apex Court that if denial of title by tenant is an outcome of good faith or honesty or sincerity and has intended only to project the fact without any intention of causing any harm to the landlord, it may not be 'not bona fide'.
25. The trial court has found that the shops in dispute were let out by the plaintiff landlord and the rent was being paid by the applicant tenants to the landlord and rent was never demanded by any other person and therefore It was a clear case of denial of title, under Issue No. 8. However, the tenant defendant has not set up title of landlord In himself nor In a third party. The only pleading Is that besides the plaintiff, his two sons are also co-landlords. This does not amount denial of title of landlord. The findings, therefore, under Issue No. 8 Is set aside.
26. Before saying omega to the case, it may be noted that on account of failure of the tenant to further cross-examine the plaintiff, the evidence was closed by the order dated 22.7.1986. It was recalled by order dated 22.9.1986, even thereafter the tenant defaulted and the suit was decreed ex parte o n 7.11.1986. The ex parte decree was set aside on 4.8.1990. Dates after dates were fixed in the suit thereafter, and twice the order to proceed ex-parte was passed and recalled at the instance of the tenant. In spite of several opportunities given by the trial Judge, the tenant who appears to be habitual defaulter, ultimately did not turn up and the suit was decided ex-parte. It took almost eleven years, before the trial court and fourteen years in the High Court.
27. No other point was pressed.
28. In this view of the above discussion, there is no force in the revision. The revision is dismissed. No order as to costs.