Raghav Pandey & Another ........ ... vs Suresh Chandra
2024 Latest Caselaw 1321 UK

Uttarakhand High Court

Raghav Pandey & Another ........ ... vs Suresh Chandra on 5 July, 2024

Author: Vivek Bharti Sharma

Bench: Vivek Bharti Sharma

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

          Writ Petition (M/S) No. 1863 of 2023

Raghav Pandey & another                         ........ Petitioners

                                 Vs.
Suresh Chandra                                   ....... Respondent

Present:
Mr. S. Bhupender Singh, counsel for the petitioners.
Mr. Siddhartha Sah and Mr. Neeraj Garg, counsel for the respondent.

                                            Dated : 05.07.2024

Hon'ble Vivek Bharti Sharma, J. (Oral)

Present petition under Article 227 of the

Constitution of India has been filed by the petitioner

against the judgment and order dated 30.01.2023

passed by 2nd Additional District Judge, Haldwani in

S.C.C. Revision No. 04 of 2019, whereby the said court

dismissed the revision and affirmed the judgment and

order dated 30.01.2019 passed by Civil Judge (Senior

Division), Haldwani in S.C.C. Suit No. 11 of 2015.

2. Heard.

3. Admit the petition.

4. Learned counsel for the petitioners/tenants

would submit that the respondent/landlord filed Suit

No.11 of 2015 against the petitioners/tenants for

ejectment on the grounds of non-payment of rent and

also making material structural alterations in the

tenanted property without taking permission in writing

from the respondent/landlord; that, the Small Causes

Court, Haldwani vide judgment and order dated

30.01.2019 (annexed as Annexure No.1 to the writ

petition) observed that the petitioners/tenants have

deposited the entire rental amount before the trial court,

however, gave the benefit of Section 20(2)(c) of the U.P.

Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972 (in short 'the Act No. 13 of 1972') and

decreed the suit in favour of the respondent/landlord on

the ground that material alteration was done by the

petitioners/tenants in the tenanted property without

taking permission from the respondent/landlord and

thereby diminishing its value.

5. He would further submit that aggrieved by

judgment and order dated 30.01.2019, the

petitioners/tenants preferred S.C.C. Revision No.04 of

2019 before the court of 2nd Additional District Judge,

Haldwani, District Nainital; that, the Revisional Court

vide judgment and order dated 30.01.2023 (annexed as

Part-II of Annexure No.1 to the writ petition) dismissed the

said revision and affirmed the judgment and order dated

30.01.2019 passed by the Small Causes Court. Hence,

this writ petition.

6. Learned counsel for the petitioners/tenants

would submit that both the impugned judgments passed

by the courts below are unsustainable in the eyes of law

as the petitioners/tenants have already deposited the

entire rental amount before the trial court and have not

made any permanent partition in the tenanted property

and have only made temporary partition by a wooden

ply; that, the respondent/landlord did not plead or give

any evidence regarding the measurement of shop in

dispute or the alleged partition; that, the alleged

partition was not examined by any Expert, Architect or

Engineer to prove the allegations made in the plaint by

the respondent/landlord; that, the respondent/landlord

did not examine any witness of the locality, where the

shop in question was situated, to prove the case of

material alteration; that, the testimony given by the

respondent/landlord is not supported by any evidence;

that, the burden of proving the case under Section

20(2)(c) of the Act No. 13 of 1972 was upon the

respondent/landlord and respondent/landlord miserably

failed to prove its case; that, the trial court has not

framed proper issue in terms of Section 20(2)(c) of the

Act No. 13 of 1972 while dealing with the subject matter

of material alteration.

7. In support of his case, he referred the

judgment of Vishwanath Prasad Jaiswal Vs. Satya

Narain Sharma (2014) 16 SCC 784, whereby Hon'ble

Supreme Court dismissed the appeal filed by the

landlord on the ground of non-availability of evidence on

record to prove that the material alteration made in the

tenanted premises by the tenant diminished the value

and utility of the tenanted property and held that the

landlord is not entitled to any benefit of Section 20(2)(c)

of the Act No. 13 of 1972 under such circumstances. He

also places reliance upon various judgments on the

same point of law.

8. Counsel for the petitioners/tenants would

further submit that in the written statement (annexed as

Annexure No.3 to the writ petition) filed by the petitioners

/tenants, it was specifically denied that any material

alteration which diminished the value and utility of the

tenanted premises was done by them rather it was

stated that initially the shop was taken on rent by the

father of the petitioners/tenants from the father of

respondent/landlord in the year 1964 and at the

relevant time the shop was temporarily partitioned by

wooden ply and no permanent partition was constructed

by the petitioners/tenants; that, with regard to the

question of removing the rear wall, the same was

removed by the brother of the respondent/landlord

himself, when the shop situated in the back side of the

tenanted property was taken on rent by the wife of

petitioner no.1 from the wife of the respondent/landlord.

9. Counsel for the petitioners/tenants would

further submit that in the present case even the ground

for ejectment under Section 20(2)(c) of the Act No. 13 of

1972 is not available to the respondent/landlord since

the tenanted property has been brought in its original

shape; that, the trial court also did not appreciate the

evidence of DW-2/Kanhaiya Lal, who categorically

deposed that the rear wall of the shop was removed by

the brother of the respondent/landlord in the year 1993.

10. Per contra, learned counsel for the

respondent/landlord vehemently opposed the

submissions made by counsel for the

petitioners/tenants and supported the impugned

judgment and order of both the courts by submitting

that it was the specific case of the respondent/landlord

that the petitioners/tenants have partitioned the original

shop, which was let out by the father of the

respondent/landlord to the father of the

petitioners/tenants and when wife of petitioner no.1

took the shop situated at backside of tenanted property

on rent from the wife of the respondent/landlord then

the petitioners/tenants removed the common wall of the

original tenanted property, which is subject matter of the

present petition.

11. Counsel for the respondent/landlord would

further submit that Section 20(2)(c) of the Act No.13 of

1972 specifically says that whenever any material

alteration has to be made in the tenanted premises there

should be consent in writing from the landlord and the

petitioners/tenants have failed to prove that whether

any written permission was taken by them from the

respondent/landlord for doing any material alteration in

the tenanted property.

He would further submit that in the impugned

judgment and order dated 30.01.2019 (annexed as

Annexure No.1 to the writ petition) passed by the Small

Cause Court, it has been stated that petitioner

no.2/defendant no.2 when examined himself as witness

in the Small Cause Court as DW1 had specifically

admitted the fact that in the rent agreement, which was

executed on 26.10.1964 between the father of the

petitioners/tenants and father of the

respondents/landlord (exhibit as Paper No.25Ga/2), it

was stated by the father of the petitioners/tenants that

'he admits that he would not open any door on the

backside of the shop and would not make any change in

the tenanted premises without prior permission of the

landlord' but the material alteration has been done by

the petitioners/tenants without taking written

permission from the respondent/landlord, therefore, the

terms of the rent agreement was violated by them.

12. Counsel for the respondent/landlord would

further submit that the trial court specifically observed

in the impugned judgment and order dated 31.01.2019

that as per the statement of DW1/Lalit Mohan Pande

(petitioner no.2) it is proved that three walls were present

in the shop when the shop in question was given on rent

to the petitioners/tenants but at present there are only

two walls in the said shop and also observed that in his

cross-examination, the petitioners/tenants stated that

he was not aware whether the petitioners/tenants has

taken any written permission from the

landlord/respondent for material alteration.

He would further submit that in the trial court

the petitioners/tenants had the opportunity to prove the

fact that they had taken the permission from the

landlord/respondent in terms of the executed rent

agreement but they did not do so.

13. Learned counsel for the respondent/landlord

would further submit that in the plaint as well as in the

evidence filed by way of affidavit by the

respondent/landlord as PW1/Suresh Chandra

(respondent/landlord) it has come that material changes

have been made which had diminished the value of the

tenanted premises; that, opportunity was afforded to the

petitioners/tenants to cross-examine PW1/Suresh

Chandra on the point that how this alteration has

diminished the value of the tenanted premises but the

petitioners/tenants neither cross examine PW1/Suresh

Chandra on this point nor made any suggestion to

PW1/Suresh Chandra and did not adduce any evidence

to prove that the removal of common wall between the

present tenanted premises and the rear shop had not

diminished the value of the property.

14. Learned counsel for the respondent/landlord

would further submit that the statement of the counsel

for the petitioners/tenants is incorrect that the trial

court did not frame any issue on the fact that material

alteration did not diminish the value of the tenanted

premises as issue no.3 was framed on this point; that,

the court in paragraph no.26 of its judgment (at page 33

of the writ petition) has made the categorical, specific and

clear finding that this material change in the

infrastructure of the tenanted premises has diminished

the value and utility of the tenanted premises, therefore,

this argument of the petitioners/ tenants is also without

force.

15. Perused the record in light of arguments of

learned counsel for the parties.

16. It is evident that the trial court had

specifically stated in paragraph no. 26 of the judgment

that petitioners/tenants have materially altered the

tenanted premises in question without taking any

written permission and the same has diminished the

value and utility of the tenanted premises and when the

opportunity was given to the petitioners/tenants to cross

examine the witness, they failed to do so and neither the

petitioners/tenants controverted the same in their own

evidence nor gave any suggestions to

PW1/respondent/landlord that the material alteration in

the tenanted premises did not diminish its value and

utility; that, in the absence of any cross-examination on

this point it shall be presumed that it is a fact admitted

by the petitioners/tenants. Therefore, the submission

made by the counsel for the petitioners/tenants that

there is no evidence of any expert on the fact that the

material alteration made in the tenanted property

diminished the value and utility of the property in

question, is considered, it will still not be fatal to the

case of the respondent/landlord.

17. It is trite that when there is no cross

examination on any fact stated on oath by any witness

to controvert the same by way of any suggestions or

otherwise in the cross examination of that witness by

opposite party then that fact shall be presumed to be an

admitted fact as against the opposite party. Moreover,

perusal of the judgment of the Small Causes Court dated

31.01.2019 reveals that in paragraph no. 26 of the said

judgment, the trial court has specifically stated that

material alteration made by the petitioners/tenants has

diminished the value and utility of the tenanted

premises, therefore, there is no force in the arguments of

the counsel for the petitioners/tenants that there is no

findings to this effect in the judgment. Furthermore, the

judgment passed by Hon'ble Supreme Court in

Vishwanath Prasad Jaiswal (Supra) is of no help to the

petitioner on this point.

Last but not least, in para-3 of written

statement, it is stated that the back wall of the tenanted

property, which was common between these tenanted

shops was removed in the year 1993 and there is no

evidence in respect of the fact that for such material

alteration, the petitioners/tenants had taken any written

permission from the respondent/landlord.

18. It is trite that the High Court exercising

supervisory jurisdiction does not act as a court of first

appeal to re-appreciate or reweigh the evidence or facts

upon which the determination under challenge is based.

The power under Article 227 should be exercised sparingly

in appropriate cases, like when there is no evidence at

all or the finding is perverse but in the present case both

the courts have passed a reasoned and speaking order

while appreciating the facts and evidences on record. In

the judgment Garment Craft Vs. Prakash Chand Goel

(2022) 4 SCC 181, the Hon'ble Apex has observed that

the High Court is not vested with unlimited prerogative

to correct all kinds of hardship or wrong decisions made

within the limits of the jurisdiction of the subordinate

courts or tribunals and further observed that it is well

settled that the High Court while exercising its power

under Article 227 of the Constitution of India cannot act

as an appellate court or substitute its own judgment in

place of that of the subordinate court to correct an error,

which is not apparent on the face of the record.

19. In the light of above discussion, this Court is

of the considered view that the impugned order passed

by both the courts below cannot be said to be illegal or

perverse which requires interference under its

supervisory jurisdiction by this Court.

20. In result, the writ petition fails and the same

is hereby dismissed.

(Vivek Bharti Sharma, J.) 05.07.2024 Mamta