K. N. Singh, J. - (1.) THIS is defendant's revision under Section 115 of Civil Procedure Code against the orders of the courts below decreeing plaintiff-opposite parties' suit.
(2.) THE plaintiff-opposite parties filed suit for recovery of arrears of rent and ejectment against the defendant on the ground that the defendant had failed to pay arrears of rent inspite of demand and he had caused damage to the building let out to him. THE defendant contested the suit on a number of grounds. Ho denied that he had caused any damage to the building or that he was in arrears of rent. During the pendency of the suit, U. P. Act no. XIII of 1972 came into force. THE defendant made deposits as envisaged by Section 39 of the Act and made an application that he had absolved himself from the liability of ejectment. THE trial court held that the defendant had deposited the amount required under Section 39 of the Act and he was not liable to be ejected on the ground of default in payment of rent. But the trial court decreed the plaintiffs' suit for defendant's ejectment on his findings that he had caused damage to the building. On revision by the defendant, the Additional District Judge upheld the judgment and decree of the trial court. There is no dispute that the provisions of the U. P. Act No. XIII of 1972 apply to the building in dispute and the suit was pending before the trial court on the date of the commencement of the Act. Section 20 (2) (b) lays down that a suit for ejectment of a tenant from a building may be filed on the ground of the tenant's having wilfully caused or permitted to be caused substantial damage to the building. According to the proviso, before a tenant is ejected from a building, two things must be pleaded and proved, firstly that the tenant willfully caused or permitted to be caused damage to the building. Secondly, the damage to the building must be substantial in nature. If any of these two conditions are not satisfied, tenant is not liable to ejectment. The expression 'wilfully' means deliberate with some ulterior motive, and the expression 'wilfully caused' or 'permitted to be caused' indicates the legislative intent that the tenant deliberately caused or deliberately permitted damage to the building. The expression 'wilfully' connotes deliberate action with knowledge, to cause substantial damage to the building. The expression 'substantial damage to the building' further indicates that a mere ordinary damage to the building even if caused wilfully by the tenant is not sufficient for his ejectment. The damage must be substantial in nature, What is substantial damage is a question of fact in each case which must be determined on the appraisal of evidence on record. The scheme as laid down under Section 2 (2) is clear that legislature intended that no tenant should be ejected merely if some damage is caused to the building due to the negligence of the tenant but in a case where a tenant deliberately caused or permitted to be caused substantial damage to the building, he is liable to ejectment. In order to bring a case under Section 20 (2) (b) of the Act, it is mandatory for the landlord to allege and prove that the tenant has wilfully caused or permitted to be caused substantial damage to the building. In the absence of any pleading or rinding to that effect, landlord's suit cannot be decreed for defendant's ejectment. In the instant case, the plaintiffs alleged in the plaint that the defendant-tenant had kept some flower pots on the roof of the building and some other materials including tins and coolers which blocked the rain water on the roof as a result of which seepage occurred damaging the roof of the building. The plaint did not contain any assertion that the defendant had wilfully caused damage to the building or that the damage caused was substantial in nature. In his testimony before the trial court, the defendant admitted that he had placed some flower pots on the roof but on plaintiff's objection, he had removed the same. The lower revisional court relying on the defendant testimony held that the defendant admitted to have kept flower pots on the roof which caused damage to the building. On the other hand, this statement clearly indicates that there was no wilful act on the defendant's part to cause any substantial damage to the building. It is a matter of common knowledge that generally tenants keep their unused articles on the roof and if some seepage of water occurred causing some damage to the building, the tenant cannot be ejected on that ground. Some positive act on the part of a tenant must be established to show that he deliberately committed some act with ulterior motive and purpose as a result of which substantial damage was caused to the building. The law does not take note of any negligent or accidental act of tenant nor every damage is material. If on mere damage, the landlord is permitted to eject a tenant, the purpose of the restriction as contained in section 20 (2) shall be defeated. Neither the trial court nor the lower revisional court recorded any finding that the defendant had wilfully caused substantial damage to the building. In this context, it is significant to note that the Junior Engineer who inspected the building reported that there are certain cracks in the roof on account of the seepage and the plaster was coming out for which he attributed two reasons, the use of substandard material in constructing the building and, secondly, seepage of water on account of water logging on the roof. Even if the report of the junior Engineer is accepted to be correct, it can by no reasonable standard be held that the defendant had wilfully caused substantial damage to the building.
(3.) FOR the reasons stated above, the courts below acted with material irregularity in exercising their jurisdiction in decreeing the plaintiff-opposite parties' suit for defendant's ejectment. The revision succeeds and is allowed. Accordingly, the judgment and decree of the courts below are set aside and the plaintiffs' suit is dismissed. Parties shall bear their own costs. Revision allowed.;