Ram Rakha Aggarwal vs Banwari Lal
1993 Latest Caselaw 134 Del

JUDGMENT

P.K. Bahri. J.

(1) The case had been on Board last month as well as in this week, but no one appeared on behalf of the respondent to assist the Court in deciding this case. Mr. Seth informs that he had contactedSh. K.K. Sharma, Advocate, whose power of attorney appears on the record of this case, twice in this week, but he has told him that he was not appearing in this case.

(2) This second appeal is directed against the judgment dated 16/03/1974 of Senior Sub-Judge, Delhi, by which had allowed the appeal and had granted mandatory injunction requiring the appellant to demolish the room existing on the second floor of the property in question and had also granted perpetual injunction restraining the appellant from making any permanent construction in the property in question a.nd had left the parties to bear their own cost.

(3) Facts of the case, in brief, are that the property bearing MunicipalNo. 3591-3594, Chawri Bazar, Delhi, is owned by the respondent and initially in the year 1956 he had let out the ground floor which comprises of a shop at a rental of Rs. 34.37 paise to the appellant and later on in the year 1959 had let out the first floor and the second floor of the same property to the appellant at a rental of Rs. 45.88 paisa. The respondent/plaintiff had brought a suit seeking mandatory injunction, requiring the appellant/defendant to remove the illegal construction made by him, shown in red colour in the plan attached with the plaint, so that the building is brought to its original position when it was let out and also sought perpetual injunction restraining the appellant/defendant from making anyaddition, alteration or variation in the super structure in any manner.

(4) It was pleaded by the respondent/plaintiff that the appellant defendant had covered a portion of the open space on the top floor by constructing a cemented room on the said floor, which is shown in red colour in the plan. I need not refer to other pleas taken in the plaint because both the Courts below have given a finding that other additions and alterations,particularly the stair case, which was constructed from the ground floor to the first floor, and the covering of the verandah on the first floor, have not in any manner damaged the property or has violated any terms of thetenancy. No relief was granted to the respondent with regard to his prayer for demolishing any structure on the ground floor or the first floor.

(5) The short question which arises for decision in this appeal is whether the appellate Court was right in giving the said two directions to theplaintiff, regarding demolition of the construction on the second floor and granting prohibitory injunction, restraining the appellant from making any additions and alterations in the property in question.

(6) At the time the first floor and the second floor premises wereletout. it appears that a writing was executed by the respondent/plaintiff which is Ex. D-l The respondent/plaintiff had in his statement, made inCourt, admitted his signatures on the said document. The two Courts below have also given a finding of fact that this writing was given by therespondent/plaintiff. By this writing, the respondent/plaintiff had permitted the appellant/defendant to carry out additions and alterations in the demised premises at his own cost to which the respondent/plaintiff had no objection.

(7) The case set up by the appellant/defendant in the written statement with regard to the structure on the top floor was that there existed a wooden tin shed on the second floor even from the time of previous tenant Uttam Prakash Bansal and the woolen walls of the same had torn out and he had replaced those wooden walls with the brick walls and the said structure has the tin roof.

(8) In the replication beside reiterating that new structure has been constructed on the second floor, the plaintiff/respondent did not specifically deny that super structure had a tin roof on it.

(9) The first appellate Court has given a finding that although the respondent/plaintiff had permitted the tenant to carry out addition and alterations in the demised premises, hut it opined that such additions and alterations could have been carried out at one time and should not have been carried out later on at any time. This interpretation of the first appellate Court being given to the permission granted by the landlord/respondent appears to be not in consonance with the law. The aforesaid documentEx. D-l does not put any limitation on the right granted to the appellant that he should carry out additions and alterations only at one time and that also within a short time of granting of permission and not at any later time andfrequently. The appellant/tenant obviously on the basis of this writing has an absolute right to carry out additions or alterations in the structure which do not cause any substantial damage to the property in question and they should normally he not in violation of any laws,

(10) It is not the case of the respondent/plaintiff set-up in the plaint that the structure constructed on title second floor was in violation of any Municipal laws. However, in evidence, a witness from the Corporation SatishChand, Public Witness 6 was examined, who deposed that there existed some unauthorised construction in the building inasmuch as that there was one courtyard on the first floor which has been covered and that there was unauthorised construction made on the first floor and that unauthorised construction hadfallen. He admitted that he had not brought the records or the relevant files.So, it is not understood how the oral statement could he given by him regarding unauthorised construction having been made on the second floor.It is not shown that a structure having a root of tin shed could be deemed to be any permanent construction which could be treated as in violation of Municipal laws.

(11) The appellant had examined the previous tenant namely UttamPrakash Bansal as Public Witness 5 who deposed that he was the tenant in the said premises and at the time of his tenancy, he had constructed the wooden tin shed on the second floor. The Trial Court had believed the testimony of the witness and the first appellate Court had not given any contrary finding in thisregard. So, as the facts now emerge, it is obvious that on the second floor,there existed a wooden structure which had a roof of tin sheets andappellants, on the basis of the permission granted by the respondent/plaintiff,had changed the wooden walls into brick walls but the roof of the same still continues to be of the tin sheets. So, it cannot be said that appellant/defendant had made any structure which could have damaged the building. The conversion of a wooden tin shed into a tin shed of brick walls does not, in myopinion, violate any terms of the agreement arrived at between the parties and does not appear to be in violation of any bye-laws of the MunicipalCorporation. Even if there was any unauthorised construction against the bye-laws of the Municipal Corporation, the Municipal Corporation can take any steps in accordance with law in respect of the said structure. It was nota fit case for exercise of discretion in favor of the respondent/plaintiff for granting him any mandatory or perpetual injunction, as prayed by him.I allow the appeal and set inside the judgment of the Senior Sub-Judge and restore the judgment of the trial Court leaving the parties to bear their costs throughout.