JUDGMENT Mukteshwar Prasad, J.
1. By means of this petition under Article 226 of the Constitution of India, the tenant has prayed for issuing a writ of certiorari quashing the judgment and order dated 9.8.2001 (Annexure-9) and judgment and order dated 17.2.1998 (Annexure-7) to the writ petition passed by respondent Nos. 1 and 2 respectively.
2. Counter-affidavit and rejoinder affidavit have been exchanged between the parties and are on record.
3. Heard S/Sri P.N. Saxena and Atul Dayal. learned counsel for the tenant-petitioner and Sri A.K. Gupta, learned counsel for the landlord respondent No. 3. With the consent of learned counsel for the parties, this petition is being disposed of finally at this stage.
4. In brief, the facts and circumstances giving rise to this petition are as under.
5. It appears that the landlord filed a S.C.C. Suit No. 261 of 1992 in the court of Judge, Small Causes, Kanpur Nagar for eviction of the tenant-petitioner from the premises in dispute and for recovery of arrears of taxes and damages till delivery of possession. The suit was filed with the allegations that the plaintiff was landlord of the premises No. 120/601, Lajpat Nagar, Kanpur Nagar and a portion of the house was let out to the tenant-petitioner on rent at the rate of Rs. 725 per month. The landlord sought eviction of the tenant on the grounds that the tenant did not pay the taxes which were also payable as a part of rent since 1.4.1981. The tenanted accommodation was let out for the purposes of residence but he started running school without consent in writing of the landlord. The tenant further without permission of the landlord raised permanent constructions and made structural alteration in the building and thereby diminished its value and utility. Before filing the suit, a notice was also served on the tenant which was replied by him.
6. The tenant filed written statement admitting relationship of tenant and landlord between the parties. According to him, he was inducted as a tenant in the disputed premises in the year 1969 at a monthly rent of Rs. 400 for the purpose of running a school. Since strength of the students increased, the additional accommodation was required and he raised constructions at his own costs with the consent of the landlord, who enhanced the rent also from time to time. He committed no default in payment of rent which included taxes also. The defendant admitted that he made structural alteration and had raised permanent constructions but all was done with the consent and knowledge of the landlord. Moreover, the building in question was not disfigured and the alteration did not diminish the value, as alleged in the plaint.
7. The plaintiff examined his Mukhtar Aam, Prakash Nath Dixit. On the other hand, the tenant examined himself and one T.P. Singh. The parties led documentary evidence also.
8. After having considered the entire oral and documentary evidence on record and the arguments advanced on behalf of the parties, the learned Judge, Small Causes found that the tenant raised permanent constructions and made structural alteration in the building whereby value of the building was diminished and was disfigured. He, therefore, decreed the suit for eviction as well as for recovery of arrears of taxes and damages also.
9. The tenant filed S.C.C. Revision No. 54 of 1998 which was dismissed on 9.8.2001 and the finding of the court below regarding structural alteration was affirmed.
10. Learned counsel for the tenant-petitioner has strenuously urged that the courts below decreed the suit for eviction of the tenant from the disputed premises on the grounds that the tenant had made permanent constructions in the front portion as well as back portion of the house without permission in writing of the landlord and thereby diminished the value and disfigured. According to him, the courts below committed an error of law in recording this finding without any pleading regarding date and year of the alleged construction raised by the tenant. He further urged that year of the construction was not mentioned in the plaint and he drew my attention to paragraph 4 of the plaint. It was submitted by him that when cause of action arose for filing of suit on the ground of structural alteration does not find place in the plaint and as such, no decree could be passed and plaint was liable to be rejected as provided in Order VII, Rule 11 C.P.C. Learned counsel for the petitioner contended that the suit was barred by limitation and the finding recorded by the courts below suffer from perversity. Reliance was placed by the learned counsel for the petitioner on two decisions of this Court in S.K. Banerji v. Surendra Narain Mishra, 1990 (1) ARC 114 and Ram Krishna Das v. Krishna Das Agarwal, 1991 (1) ARC 557.
11. On the other hand, learned counsel for the landlord-respondent has urged with vehemence that both the courts below recorded a concurrent finding of fact to the effect that the petitioner raised permanent constructions in the front portion of the house covering entire lawn. The tenant admittedly raised constructions of permanent nature in the back portion of the house also which was let out to him and which diminished the value and house was disfigured. Admittedly, the structural alterations were carried out in the tenanted accommodation without permission in writing of the landlord in the year 1989-90 and suit was filed on 5.2.1992, after serving a notice determining the tenancy as provided under Section 20 (2) of U.P. Act No. 13 of 1972 (hereinafter referred to as 'the Act'). He admitted that date and year of the construction raised by the tenant was not mentioned, in the plaint. However, no suit could be filed against petitioner without determining his tenancy as provided under Section 106 of Transfer of Property Act and Sub-section (2) of Section 20 of the Act. The cause of action for a particular action arises on different dates. In the instant case, the cause of action arose for filing a suit on the date when a notice to quit was sent to the tenant and on the date also when notice was served on him. Again, further cause of action arose on the date when tenant sent a reply. Therefore, the argument is misconceived and fallacious that suit is barred by limitation. Lastly, it was submitted that this plea was neither raised in the written statement that the suit was barred by limitation nor it was raised before J.S.C.C. or in the revisional court. He has placed reliance on the following decisions :
(1) Ranjit Singh v. Ravi Prakash, 2004 (2) AWC 1721 (SC) : 2004 (2) SCCD 890 : 2004 ACJ 1818;
(2) Het Ram Kanodia v. Xth Additional District Judge, Kanpur and Ors., 1994 (1) ARC 539 ; and (3) Smt. Sugra Begum v. State of U. P. and Ors., 2005 (1) AWC 27 : 2005 ACJ 121.
12. I have considered the submissions made on behalf of the parties. I have gone through the entire record also. After having considered the arguments as well as decisions relied upon by the parties. I find myself unable to accept the contention of learned counsel for the petitioner. Admittedly, the premises in dispute was let out to the tenant-petitioner and there is concurrent finding of two courts below to the effect that the tenant has raised constructions of permanent nature in front portion of the house as well as in the back portion. The petitioner admitted in his pleading as well as in the evidence that he had made structural alteration in the building with the consent of the landlord. He, however, could not produce any evidence to show that there was written permission of the landlord to raise constructions. Clause (c) to Sub-section (2) of Section 20 of U.P. Act No. 13 of 1972 provides in clear words '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. It is also one of the grounds for eviction of a tenant. It means, the permission, if any, as claimed by the tenant-petitioner, was oral and not in writing as required under the law. It is noteworthy that the trial court discussed the party's evidence in detail and then came to the conclusion that alleged constructions were raised in the year 1989-90 and were not very old, as claimed by the petitioner. The Judge took into consideration all facts and circumstances and the evidence led by the parties and then recorded the finding.
13. In paragraph 4 of the plaint, the landlord alleged that the tenant raised pucca construction in the lawn of the building as well as in the back portion and thereby caused disfiguration of the building and diminished the value. It is noteworthy that the petitioner also nowhere stated in his written statement as to when he raised the constructions. The plaintiff witness P.N. Dixit disclosed in his cross-examination that constructions were raised in the year 1989-90. It was urged that the oral evidence produced on behalf of the plaintiff could not be read in the absence of any pleading on the point. It may be mentioned here that the witness disclosed the year of alleged constructions in his cross-examination. Therefore, the said argument on behalf of the petitioner is not tenable.
14. It was held in S.K. Banerji's case (supra) that the question whether the construction materially altered the accommodation is a mixed question of fact and law. It was also held that a construction made on a permanent basis would be deemed to be a permanent construction. The nature of the construction whether it is permanent or temporary is relevant consideration for deciding the question of material alteration. A tin-shed which can be removed without causing any damage to the demised premises cannot be said to be a permanent construction and it can be shifted any-time.
15. Learned counsel for the petitioner laid much emphasis on the point that the date and year of the construction was not disclosed in the plaint, nor in the cause of action clause and as such, the suit was barred by time and was liable to be rejected for not disclosing cause of action. On this point I am in full agreement with the contention of learned counsel for the landlord-respondent. The expression 'cause of action' has not been defined in the Code of Civil Procedure. However, cause of action means the whole bundle of material facts which is necessary for the plaintiff to prove in order to enable him to succeed in suit. Whether any particular of facts constitute a cause of action has to be determined with reference to the facts of each case. As mentioned above, Section 20 (2) of the Act provides that a suit for eviction of the tenant may be filed by the landlord on one or more of the grounds given in Clauses (a) to (g). However, there is restriction for filing a suit and that restriction is that before filing a suit for eviction the landlord is required to determine the tenancy of the tenant. The date of sending notice to the petitioner as well as date of service of notice and the date of expiry of the notice are all given in the plaint. In this view of the matter, it is not possible to infer that there was no cause of action or the plaint did not disclose the cause of action for filing a suit and plaint was liable to be rejected on this score. Moreover, the trial court as well as revisional court found that the construction was raised in the year 1989-90 and this finding is based after appraisal of the evidence on record led by the parties. Therefore, this Court has no jurisdiction to take a different view or reappraise the evidence. It was clearly held by this Court in Het Ram's case (supra) that in a suit for eviction against tenant the cause of action is termination of relationship of landlord and tenant. So long there is a relationship of landlord and tenant either under the contract or under the statute the tenant cannot be evicted. The grounds for eviction mentioned under Section 20 (2) of the Act impose a bar for filing a suit for eviction against the tenant unless those grounds exist. It means, the grounds mentioned in Clauses (a) to (g) are condition precedent for filing a suit for eviction after determining the tenancy. It was clearly held by the Supreme Court of India in Ranjit Singh's case (supra) that if it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. It was held by the Apex Court of the country that the High Court should not interfere with a finding of fact simply because it feels persuaded to take a different view on the material on record. In the instant case, the raising of permanent construction was admitted by the petitioner in his written statement as well as in the evidence. The courts below have also recorded a finding that the constructions diminished the value as well as utility of the building and the building was disfigured. It is well known that lawns in front of the houses are left for several purposes. Moreover, it is mandatory to leave some open land in part of the house as well as in the back portion under rules/bye-laws. In the instant case, the laws was covered by raising permanent construction. Not only this, the petitioner raised permanent construction in the back portion of the house also with a view to accommodate the students. This was all admittedly done without permission in writing of the landlord. It means, the structural alteration was done in contravention of the provision contained in Clause (c) of Sub-section (2) of Section 20 of the Act.
16. For the aforesaid reasons, I find that no illegality was committed by the courts below and the finding recorded by the courts below on the aforesaid point does not suffer from any perversity and no error of law has been shown or established. I, therefore, find that this petition lacks merit and is liable to be dismissed.
17. No other point was pressed in this petition.
18. In the result, the petition fails and is accordingly dismissed. However, no order is made as to costs.