Asha Dass And Ors. vs Dunlop India Ltd.
1988 Latest Caselaw 174 Del

JUDGMENT

P.K. Bahri, J.

(1) Arguments have been heard for disposing of both the civil revision petitions finally. Both these petitions arise out of the order dated June 9, 1987, of Shri G.P. Thareja, Senior Sub-Judge, Delhi by which he has dismissed an appeal filed by M/s. Dunlop India Limited (hereinafter described as 'the tenant') against an order dated May 16, 1987, of Shri D.S. Sidhu, Sub-Judge, on an application moved by Smt. Asha Dass & others (hereinafter described as 'the landlords') for grant of temporary injunction under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, in a suit brought by the plaintiffs seeking permanent injunction restraining the tenant from carrying out any additions/alterations or construction work in any part of the tenanted premises i.e. part of property No. 27-A, Aurangzeb Road, New Delhi.

(2) The tenant is in possession of ground floor portion of the said building Along with garage, a driver room, four servant quarters, at the rental of Rs.3,000.00 per mensem since 1970. The premises had been led out for residential purposes as mentioned in the plaint. It is admitted fact that eviction cases filed by the landlords against the tenant are pending for some years. Now the plaintiffs instituted the present suit on January 5,1987, alleging that the defendant-tenant has started carry

(3) The suit and the application were contested by the tenant. It was pleaded that the plaintiffs have not given any details of alleged additions and alterations being carried out in the premises and that plaintiffs have suppressed material facts inasmuch as the tenancy agreement between the parties permitted the tenant to carry out necessary additions and alterations in the suit premises without causing any damage to the suit -premises. It was pleaded that the renovations in the demised premises were commenced in mid December 1986 to the knowledge of the plaintiffs and the plaintiffs have acquiesced in the said carrying out of repair work in the premises. It was denied that any construction is being carried out in the premises. It was. pleaded that the building was an old one and needed substantial repairs which the plaintiffs failed to carry out and by virtue of letter containing terms of tenancy, the tenant was entitled to make such additions and alterations and put up or erect such fixtures and fittings which the tenant may consider necessary and the tenant was entitled to remove such additions, alterations fixtures and fittings from the premises on the termination of the tenancy, and the tenant had agreed to make good any damage caused to the demised premises by reason of such removal. In the written statement it was not clarified as to what sort of repair work was allegedly being carried out by the tenant in the premises. In the reply to the application for grant of interim injunction, the tenant mentioned that the tenant is making the premises centrally air-conditioned for more comfortable living at a huge cost.

(4) It appears from the record that a Local Commissioner was appointed by the Lower Court, namely, Shri G.K. Seth, Advocate, to visit the spot in order to verify as to what sort of work was being carried on in the demised premises. He inspected the premises on February 16, 1987 and made the report and mentioned that doors which earlier existed in the demised premises had been blocked and closed and certain pits have been made in the ceiling for putting in air conditioners and that certain wooden frames of the: doors, windows and almirahs have been removed and certain windows and. ventilators have been blocked permanently with plywood and one fireplace has been demolished and new partition wall has been raised up to the height of 1-1/2 feet and a new door has been opened between portions marked 17 & 18 in the map. He also found that plaster of the walls has been removed and the flooring stand damaged and electric fittings were found damaged and some new electric fittings have been installed. He found certain big holes on the upper portion of the walls and he opined that premises has been badly damaged due to structural changes and the present state has become inhabitable.

(5) The defendant had placed on record of the Lower Court the estimate of the work sought to be done in the demised premises which showed that masonry/cement plaster and plaster of paris and glazed tiles are to be put in and teakwood doors, windows and doors are to be put up besides false ceiling has to be installed and thereafter fittings are to be installed in bath room and electric fittings are also to be installed and that premises are to be made centrally air-conditioned. A certificate of Architect was also filed showing that only renovation and improvements are being made in the premises which has no effect of causing any structural change in the building or causing any damage to the building. It was mentioned therein that no columns are being constructed and no beams were being placed and no walls are to be removed for carrying out these renovations. The learned Sub- Judge, however, thought it fit to grant temporary injunction restraining the tenant from raising any further construction, additions and alterations so as to make the structural changes in the suit premises till final disposal of the suit. However, the tenant was permitted to do the flooring work in the premises. The tenant filed an application first before the learned Sub-Judge seeking clarification as to whether the tenant could carry out the work in order to make the premises habitable and also moved the Appellate Court.

THE Appellate Court after hearing the arguments of both sides dismissed the appeal but made certain clarifications in the impugned order mentioning that the appellants will not be permitted to make any additions and alterations so as to make any structural changes in the premises and in view of the undertaking given by the tenant, the tenant was permitted to restore back the premises to its original condition and the tenant was also directed to give a surety of Rs. 30,000.00 for complying with the order. A commission was also appointed to take photographs of the premises. Both the parties filed the civil revision petitions challenging the impugned orders of the Lower Court.

(6) The landlords pleaded that the Lower Appellate Court was not justified in giving directions that tenant is entitled to put the premises in the same condition as it existed earlier and that substantial damage has been caused to the demised premises by the tenant and tenant should not have been allowed to remove the evidence of having caused substantial damages to the premises by being permitted to restore the premises to its original condition. So, the landlords prayed in the civil revision that order of the first Appellate Court should be set aside and the order of the trial Court should be confirmed till the disposal of the suit.

(7) The tenant has filed the civil revision challenging both the orders mentioning that the tenant has, in order to put the controversy to an end, agreed before the first Appellate Court to put the premises back to its original condition but as the landlords have challenged the order of the first Appellate Court, the tenant is not now bound by its undertaking to the first Appellate Court to put the premises back to its original position and the tenant has every right to carry out additions and alterations in the premises, which do not have the effect of causing any waste to the demised premises, for proper enjoyment of the demised premises.

(8) It appears from the record that by agreement of both the parties S.B. Wad J, before whom these matters came up for hearing on September 24, 1987, passed the following order : "THE parties have agreed that Shri N.K. Kothari of Kothari and Associates should be appointed as Commissioner to inspect the suit premises in presence of both the parties and to report : (1) What are the additions and alterations made by respondents Dunlop India in the suit premises as against the original approved plan. (2) Whether in particular any additional alterations apart from the flooring, chaukhats and windows have been made by Dunlop India, (3) Whether the additions and alterations made by Dunlop India as of today have been brought in the structural change in the premises. (4) Whether the said additions and alterations have caused any damage to the structure. (5) Whether the additions and alterations which are proposed to be made by Dunlop India and which are stated below would cause any permanent damage to the property. (6) Whether the additions and alterations already made and proposed to be made by Dunlop India would result into such damage to premises that it would be impossible to put the premises to its original condition according to the sanctioned plan when Dunlop India leaves the premises.

The proposed additions and alterations by Dunlop India are : (1) Central Air Conditioning ; (2) Change of electrical wiring ; (3) To change the bath room plumbing and to put additional fittings ; (4) To put false ceiling ; (5) To make additions and alterations in the kitchen ; (6) Replacement of present flooring by tiles ; (7) Replacement of door frames and windows frames ;

Dunlop India shall furnish necessary details to the Commissioner in regard to the proposed additions and alterations. The fees of Architect Shri N.K. Kothari shall be paid by Dunlop India alone.

THE Commissioner shall furnish his report to the court on or before 12-10-1987 after hearing both the parties. On receipt of the report of Architect Shri N.K. Kothari the question as to which of the proposed additions and alterations should be permitted will be decided. C.R. 503/87 and the connected petitions to be listed before the court on 15th October, 1987. "...A copy of the order should be delivered to the counsel for Dunlop India to be given to Shri N.K. Kothari, Architect. Order dusty."

(9) Mr. Kapil Sibal, Senior counsel appearing for the tenant, has pointed out in arguments that the name of Shri N.K. Kothari of Kothari & Associates was suggested by counsel for the landlords for inspecting the premises which fact was not controverter by the learned counsel for the landlords. The Local Commissioner after visiting the premises had. given a detailed report in respect of every point on which his opinion was sought by virtue of the aforesaid order which was passed by agreement of the parties. He has clearly given the opinion that the proposed changes in the premises to make the premises centrally airconditioned, no structural change is to be effected in the demised premises and there would not cause any damage to the demised premises and would not impair the stability of the building in any manner and the premises could be restored back to its original shape and lay out later on. It was made clear in this report that only flooring is being repaid and certain wooden frames of doors and windows are being replaced and certain openings have been made in the wall for air-conditioning ducts and such similar holes have been cut in the roof slabs to expose steel reinforcement for fixing hangers for the false ceiling and these changes do not in any manner have caused any damage to the premises and these additions and alterations would not at all impair the structural stability of the building. The landlords have filed objections to this report.

(10) At the outset, I may mention that the main suit is yet to be decided by the Lower Court after affording an opportunity to both the parties to lead evidence on disputed questions of fact and law arising in the suit. The civil revision petitions have come out from the impugned orders made on application for grant of interim injunction and the principles for grant of temporary injunction are well known. The court is not to appraise the evidence at this stage in order to give any final verdict in favor of one party or the other. Essentially the prima facie view of the points raised by the parties has to be taken by the court in order to decide whether temporary injunction should be granted or not and if it is to be granted, it should be granted at what terms and to what extent. Prima facie, the tenant has produced on record a document containing the terms of the tenancy. The question whether that document is still binding on the parties and is admissible in evidence for want of registration or any other legal defect in the document will be decided in the suit. The fact remains that the terms contained in that document permitted the tenant to carry out additions and alterations in the demised premises. Under Section 108(m) & (o), the lessee is bound to keep the demised premises in as good condition as it was at the time of letting subject only to the changes caused by reasonable wear and tear etc. and he has to use the premises as a person of ordinary prudence and he is not to cause any damage to the premises. These are the liabilities of the tenant enforced by the statute. The question in such like cases would always arise whether the additions and alterations being made by the tenant in the demised premises would amount to waste of the nature which results in causing any structural changes in the building or results in substantial damage to the building. Ameliorative waste or equitable waste which are made by the tenant for making the premises more comfortable for his own use which do not cause any structural changes in the building or cause any damage to the premises are always permissible. The actionable waste would include such acts as pulling down any part of the premises, making unauthorised alterations such as new door ways or windows, removing floors or any other part of the structure or removing wall. (See McEacham v. Colton and Others, (1902) A.C. 104). The Supreme Court in Manmohan Das Shah and Others v. Bishun Das, , also broadly held that in case additions and alterations result in carrying out any structural changes in the premises, then the same are not permissible. It was held in that judgment that expression "material alterations" would mean important alterations such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or it might not amount to unreasonable use of these premises or constitute a change in the purpose of the lease. In the said case, the tenant had lowered the floor level of the shop which was held to be resulting in causing material alteration. This judgment was followed by this court in Parmeshwari Dass Khanna v. Bhola Nath Parihar, Air 1981 Delhi 77. In this case also, the tenant had dug up the floor by one foot. In Augustine v. Chandy and Others, Air 1953 Travancore-Cochin 462, it was opined that repairs would imply renewal and replacement of parts which have decayed. In Jai Bhawan v. Padam Sen and Another, 1964 Alj 991. It was held that the words "material alteration" must be interpreted within the commonsense and reason and not so as to make a reasonable enjoyment of the accommodation impossible for the tenant. The question whether a particular alteration in the accommodation is a material or not must be answered according to the circumstances of a particular case. It was held that if the effect was that alteration has been made for proper enjoyment of the accommodation and has not changed the structure and nature of the accommodation or caused any damage to the structure and can be removed without much expense or causing damage to the building, the said alteration would not be material.

(11) It is pertinent to mention that after the landlords have filed objections to the report of the said Architect appointed as a Commissioner by agreement between the parties the landlords prayed for inspection of the premises by some architect of the landlords, which was allowed, still no report of any such architect has been filed which may contradict the opinion given by the Local Commissioner Architect. So, at the present, prima facie, the findings, of the said Architect have to be given due importance. It is not, prima facie, understood as to how putting in new window frames in the doors and windows, new sanitary fittings in the demised premises and false ceiling in the demised premises and certain small openings in the wall for putting in ducts for the air-conditioning, can possibly result in any structural changes in the demised premises or cause any damage to the demised premises entitling the plaintiffs to have any injunction against the tenant. After all this Court is not going into this question in detail whether, in fact, the said additions and alterations proposed to be carried out in the demised premises would amount to waste or not entitling the landlords to have relief of injunction ultimately. Prima facie, this Court must come to the conclusion that the proposed additions and alterations and the additions/alterations already made are not likely to cause any structural changes in the premises or any substantial damage to the premises and are being made only to make the premises more comfortable for the tenant and thus, the plaintiffs were not entitled to have any temporary injunction. I may mention that nothing said by me above, shall affect the merits of the case which are yet to be gone into by the trial Court in the suit itself.

(12) I find no merit in the civil revision filed by the landlords while I allow the civil revision filed by the tenant and set aside the impugned orders and dismiss the application of rhe landlords for grant of temporary injunction, but leave the parties to bear their own costs.

(13) However, I direct that the report of the Local Commissioner and the objections filed by the landlords be sent to the Lower Court and the Lower Court shall decide the objections to the report of the Local Com- missioner Along with the suit.