Punjab-Haryana High Court
Vijay Kumar vs Man Mohan Goel on 23 January, 2023
CM No. 1203-CII of 2023 in/and
CR No. 432 of 2023 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(120) CM No. 1203-CII of 2023 in/and
CR No. 432 of 2023 (O&M)
Date of Decision : 23.01.2023
Vijay Kumar
...Petitioner
Versus
Man Mohan Goel
...Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. D.K. Tuteja, Advocate for the petitioner.
***
Harsimran Singh Sethi J. (Oral)
CM No. 1203-CII of 2023
Present application has been filed seeking condonation of delay
of 29 days in re-filing the appeal.
Keeping in view the averments made in the application, which
is duly supported by an affidavit, the same is allowed and delay of 29 days
in re-filing the appeal is condoned.
CR No. 432 of 2023
In the present civil revision petition, the challenge is to the
order dated 08.08.2022 passed by the lower appellate court by which the
rent petition filed by the respondent-landlord has been allowed by the
learned Rent Controller vide order dated 20.08.2018 on the ground of
material alteration and the appeal filed by the petitioner-tenant has been
dismissed.
The respondent-landlord had filed a rent petition for eviction of
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the present petitioner from the shop in question, description of which was
given in the rent petition on the ground that he has re-constructed the four
walls of the shop after demolishing the same, which has materially changed
the construction. Apart from the said ground, certain other grounds were
taken seeking eviction of the shop in question.
After notice was issued, the petitioner-tenant filed reply to the
rent petition admitting the re-construction of the walls but submitted that the
same was done on the oral instructions of the respondent-landlord keeping
in view the notice, which was received from the Municipal Corporation,
Rohtak on 16.07.2014, according to which notice, the original construction
of the property in question involved encroachment.
After leading the evidence, the learned Rent Controller came to
a conclusion that re-construction of the walls of the shop in question has
been admitted by the tenant and the plea that the re-construction has been
done on the oral instructions of the landlord, has not been proved hence,
there is a material change in the property as, the re-construction was done to
overcome the encroachment being alleged by the Municipal Corporation,
Rohtak and the dimensions of the property has been changed. The learned
Rent Controller ordered the eviction of the property in question by the
petitioner-tenant vide order dated 20.08.2018.
Against the said order, the petitioner-tenant filed an appeal
before the lower appellate court and the lower appellate court also came to
the conclusion that keeping in view the material changes in the property,
which has been admitted by the petitioner-tenant but was being supported
on the ground of oral permission, has not been proved as no oral permission
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could be proved by the petitioner-tenant so as to re-construct the walls of
the property again to do away with the alleged encroachment by the tenant
so as to reduce the area of the property which tenancing.
In the present civil revision petition, the order passed by the
learned Rent Controller as well as the lower appellate court are under
challenge.
Learned counsel for the petitioner argues that in the present
case, there is only re-construction of the walls and once, it has not come on
record that the said re-construction has impaired the value of the property in
question, the eviction order by the learned Rent Controller which was
upheld by the appellate authority is contrary to the settled principle of law.
Learned counsel for the petitioner further argues that there was no
admission that the petitioner-tenant had materially altered the property by
re-construction of the walls of shop in question.
I have heard learned counsel for the petitioner and have gone
through the record with his able assistance.
Not only the rent petition filed by the respondent-landlord is on
record but even the reply filed by the petitioner-tenant is also on record.
Even the statement of the petitioner-tenant is also on record. The reply to
the rent petition, wherein, the petitioner-tenant has made following
submissions, goes un-rebutted. The relevant admission on part of the
petitioner-tenant in the reply is as under :-
"ii) xxx xxx xxxx On or about 16.7.2014, M.C. Rohtak
has issued a notice to the respondent that the shop exists on an
encroached portion of the Gali and directed to remove the
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encroachment within three days of the receiving of notice. The
respondent immediately on receiving this notice contacted the
landlord/petitioner and show him the notice and on taking oral
consent from the petitioner, the respondent removed only the
alleged encroached portion of one side of the wall. The
remaining walls of the shop are intact."
A bare perusal of the above admission would show that the
petitioner-tenant has raised a plea that there was a consent from the
respondent-landlord to remove the alleged encroachment from one side,
which was undertaken by the petitioner-tenant so as to remove the said wall
to do away with the encroachment and the walls were re-constructed. This
admission on the part of the petitioner-tenant clearly shows that the
encroached portion being alleged by the Municipal Corporation, Rohtak
was removed so as to construct the walls again. Once, the portion of an area
has been given back to the Municipal Corporation, Rohtak as per their
notice, the area in question, which was given to the petitioner-tenant on
tenancy, has already been reduced.
That being so, it cannot be said that there is no material change
in the property concerned or the value of the property has not materially
changed qua the said constructions, which have been undertaken by the
petitioner-tenant, especially when the petitioner-tenant has failed to prove
the permission of the landlord in order to take action in pursuance to the
notice issued by the Municipal Corporation, Rohtak.
Learned counsel for the petitioner-tenant has not been able to
show any evidence to prove that the said material changes were made with
the permission of the landlord. The findings have already been recorded by
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the courts below that there is no evidence, which has come on record to
show that the changes, which the petitioner-tenant had undertaken on the
property in question, were with the permission of the landlord. Learned
counsel for the petitioner-tenant has not been able to show that the findings
recorded by the courts below are contrary to the facts on record or perverse
to any evidence. In the absence of any perversity being pointed out and it is
proved on record that no permission was taken by the petitioner-tenant
before undergoing the alterations and in the alterations, the petitioner-tenant
himself has conceded that the encroached area was given back to the
Municipal Corporation, Rohtak, the findings recorded by the courts below
that there were material alteration in the property, which have been
undertaken by the tenant and the same have de-valued the property, cannot
be treated to be without any facts or evidence on record.
Learned counsel for the petitioner-tenant has argued that the
onus to prove that the tenant has made structural changes, which has
materially altered the suit premises, is on respondent-landlord, which have
not been proved by him. Hence, the eviction order of the Rent Controller is
contrary to the settled principle of law settled by the Hon'ble Supreme Court
of India in Civil Appeal No. 9809 of 2010 titled as Krishan Kumar Vs.
Krishna Nath and others, decided on 06.02.2020. In support of the said
contention, learned counsel for the petitioner-tenant has also relied upon
several judgments of this Court in CR No. 1618 of 1979 titled as Pritam
Singh (died) by his Legal Representatives Vs. Kailash Chand, decided on
18.04.1987, CR No. 562 of 1988 titled as Lachhman Dass Vs. Charan
Kaur, decided on 05.08.1992, CR No. 1575 of 1983 titled as Madan Lal
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Saggi and another Vs. British Motor Car Company (1933) Pvt. Ltd. and
another, decided on 27.09.1984, CR No. 2805 of 1988 titled as Kewal
Chand Jain and another Vs. Jiwan Kumar Kaushal, decided on
18.05.1989, CR No. 3199 of 1986 titled as Suraj Bhan Vs. Diwan Chand
and another, decided on 08.03.2006, CR No. 2416 of 1990 titled as
Subhash Chander Vs. Valayati Ram, decided on 18.10.1993 and
judgments of the Hon'ble Supreme Court of India in Civil Appeal No. 886
of 1976 titled as Om Parkash Vs. Amar Singh, decided on 09.01.1987,
Civil Appeal No. 2471 of 1980 titled as Om Pal Vs. Anand Swarup (dead
by his legal representative), decided on 04.10.1988 and Civil Appeal No.
6942 of 2000 titled as Waryam Singh Vs. Baldev Singh, decided on
31.10.2002.
Qua the said argument, the respondent-landlord need not prove
the said material changes, which has affected the valuation of the property
as the petitioner-tenant in his reply has conceded the said fact, that in order
to do away with the encroachment, as alleged by the Municipal Corporation,
Rohtak in their notice dated 16.07.2014, the original wall was demolished
and the same was re-constructed after leaving the encroached portion is an
admission of fact of reducing the area under tenancy, which is co-related to
the devaluation of the property concerned and also to take away the right of
the respondent-landlord to assert before the Municipal Corporation, Rohtak
and prove that there was no encroachment in any manner qua the property
which was under tenancy of the petitioner-tenant. Rather, without the
knowledge of the landlord, the alleged encroached area was given away by
the tenant, which was beyond his jurisdiction, which clearly goes to show
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that the property got hampered by the material alterations, which were
effected by the tenant.
No other argument has been raised.
Keeping in view the above, no ground is made out for any
interference in the present civil revision petition.
Dismissed.
CM-1205-CII-2023
As the civil revision petition has been dismissed, the present
application also stands dismissed.
January 23, 2023 (HARSIMRAN SINGH SETHI)
kanchan JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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