K. Kannan J. - (1.) (Oral) - C.M. No.26950-CII of 2012 For the reasons stated in the application, delay of 56 days in filing the restoration application is condoned. Application is allowed. C.M. No.26951-CII of 2012 The application is allowed C.M. No.26952-CII of 2012 This is an application for restoration of the civil revision, which was dismissed in default. The case had been dismissed for default of appearance on 26.07.2012 when there had been no representation on either side, considering the fact that the case was of the year 1986 and that there had been no representation on both sides. The application for restoration is filed contending that the name of the counsel had not been printed in the cause list and therefore, he could not put in appearance. There has been no representation for the respondent. There had been no representation even at the previous hearing. Having regard to the absence of the respondent even at the previous hearing, I dispense with notice to the respondent in the application for restoration and restore the same. The application is allowed and the petition is restored to its original number. I have directed the counsel to argue the case immediately and I proceed to the pass the following order. C.R. No. 3009 of 1986
(2.) The tenant, who has suffered concurrent orders against him directing the eviction, is the revision petitioner before this Court. The ground urged by the landlord for eviction was that the tenant had constructed the chabutra over the municipal drain at the entrance of the shop and by constructing a wall, he put a tin-shed and also fixed shutter in the open space in front of the premises. This, according to him, constitutes material impairment of the value and utility of premises. Both the Courts below held that the issue of material impairment of the building was to be considered from the perspective of the landlord and not from what the tenant perceived to be. It was further reasoned by the Courts below that with reference to some of the decisions rendered by the Court that enclosure of open space in demised premise by erection of new structures would constitute material impairment.
(3.) I find that both the Courts below have erred in failing to understand that none of the petitioner's structures, which the landlord was complaining of, was actually in the demised premise itself. The contention in the eviction petition itself was that the construction had been made on the municipal drain by erecting a wall and tin shed. The shutter, which is said to have been placed was also at the front portion of the tin shed. Evidently, the constructions made by the tenant were in encroachment on the municipal property itself and so long as the municipal committee itself had not taken any action for ejectment or did not render the landlord liable for any penal action that could imperil the integrity or safety to the building itself, the landlord could not have a cause to complain that the tenant's structures have caused any material impairment in the value and utility of the building. In my view, the reasoning of the Courts below suffers a fundamental vice, for the construction which the petitioner had done was not actually at the demised premise itself. On the other hand, it is in front of the demised premise namely on the adjoining of the municipal drain and the portion above the drain.;