- (1.) THE plaintiffs-appellants, landlord have filed the present second appeal against the respondent-defendant- tenant, Delhi Cloth & General Mills Co. Ltd. being aggrieved by the judgment and decree dated 14.11.1990 passed by learned Additional District Judge, Raisinghnagar in Civil Appeal No.11/1987-Delhi Cloth & General Mills Co. Ltd. Vs. Ajaib Singh & Ors., by which the defendant-tenant's appeal was accepted and the suit filed by the plaintiffs for eviction was dismissed. The learned trial court of Munsif Magistrate, S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 2/16 Raisinghnagar vide its judgment and decree dated 20.08.1987 decreed the suit filed by the plaintiffs being Eviction Suit No.13/1982- Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd.; and after a remand upon the issue of partial eviction, again the trial court held vide judgment dated 09.09.1988 that partial eviction could not be made of the shop in question, situated at Bhilwara.
(2.) DURING the course of present second appeal filed by the plaintiffs-landlord, vide order dated 24.09.2007 passed by a coordinate bench of this Court since appellants No.1 to 3, namely, Ajaib Singh, Hari Singh and Gurdev Singh had died, however, their legal representatives were not brought on record, therefore, the appeal qua these three appellants was abated. However, the appeal for appellant No.4, namely, Kripal Singh survived and the same was accordingly heard and is being disposed of. Mr. V.K. Aggarwal, learned counsel for the plaintiffs submitted that the shop in question measuring 40' x 20' was sold on 29.03.1968 by one Rameshwar Dass to the present appellants and, thereafter on 29.09.1982, the suit for eviction was filed by the plaintiffs, inter-alia, on the ground of bonafide necessity and material alterations effected by the defendant- tenant, Delhi Cloth & General Mills Co. Ltd., who were selling S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 3/16 clothes in the said shop/showroom in the rented premises and the said suit was decreed on both these grounds of eviction by the learned trial court of Munsif Magistrate, Raisinghnagar on 20.09.1987. However, upon remand by learned lower appellate court of Additional District Judge, Raisinghnagar on the issue of partial eviction also, the learned trial court vide its order dated 09.08.1988 decided the said issue in favour of plaintiffs- landlord. However, the first appeal filed by the tenant-appellant, Delhi Cloth & General Mills Co. Ltd. came to be allowed by the learned lower appellate court of Additional District Judge, Raisinghnagar reversing the findings of learned trial court on both these issues and the said court dismissed the suit vide its impugned judgment and decree dated 14.11.1990; and hence, the present second appeal has been preferred by the defendant-appellant before this Court under Section 100 of CPC. On 12.08.1991, a coordinate bench of this Court while admitting the present second appeal, framed substantial question of law on the issue of material alteration, however, no substantial question of law was framed regarding bonafide necessity of the landlord and, therefore, vide order dated 24.07.2012 another substantial question of law was framed regarding bonafide and reasonable necessity of the landlord. S.B. CIVIL SECOnD APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 4/16 Both the substantial questions of law are reproduced herein below: - 1. Whether the addition and alteration made by the tenant appellant are material one so as to fall within the definition of material alteration and whether this material alteration resulted in the substantial damages to the premises? 2. Whether the first lower appellate court was justified in reversing the finding of learned trial court regarding bonafide and reasonable reasonable necessity of the landlord for eviction of the suit premises shop, measuring 20' x 40', given in tenancy to the defendant-tenant (Delhi Cloth & General Mills Co. Ltd.)? Learned counsel for the appellants, Mr. V.K. Aggarwal urged that on the Issue No.2, regarding personal and bonafide necessity of the landlord's son, namely, Harvinder Singh and Jagtar Singh for opening a insecticides and pesticides equipment shop, the landlord needed the said shop in question, which was situated on the main road of the town and in the neighbourhood also, the shops of similar business were already operating. While the learned trial court discussing S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 5/16 the entire relevant evidence deciding the issue No.2 vide para 39 of the judgment and decree dated 20.08.1987 had decided the said issue in favour of plaintiff, the learned lower appellate court, however, reversed the said findings vide para 67, at page 30, of its judgment and decree dated 14.11.1990 cursorily observing that by plaintiffs' own evidence, it was clear that the plaintiffs had no bonafide need of the suit shop in question since the landlord also had agricultural land and one alternative shop, which was in the tenancy of one Gajanand had become available to them but instead of using for their own purposes, they let-out it to other tenant. He further submitted that the findings on Issues No.5 and 6 regarding material alterations were reversed by the learned lower appellate court on the pretext that such alteration was necessary for security purposes of the showroom, set up by the defendant-tenant even though such alterations were carried out admittedly without consent and permission of the landlord. He, therefore, submitted that the findings of the learned lower appellate court on both these issues while reversing the cogent and relevant findings of the trial court are absolutely perverse and the same deserve to be set aside. He further submitted that material alterations were in the form of removal of two doors of the suit premises and a S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 6/16 wall in between as the original suit premises was in three parts earlier. The tenant, thus, converted the premises into a bigger showroom with the removal of doors and one wall and also putting up a false ceiling and by doing civil work of bricks, the tenant closed the two windows and ventilators. This definitely amounted to material alternation of the suit premises and since the nature of the alteration was not disputed by the defendant- tenant and they only took the pretext of security reasons while admitting that such alterations were made without consent of the landlord, it could not be held that grounds under Section 13 (1) (c) of the Act for seeking eviction on the ground of material alterations were not made out. He further submitted that there were structural changes and they amounted to material alterations indisputably. He relied upon following four judgments in support of his above contentions: - 1. AIR 1967 SC 643 2. 1998 (1) RCJ 467 3. AIR 1987 SC 617 4. 2004 AIR SCW 184
(3.) WHILE relying upon a decision rendered in the case of Sampat Raj Vs. Bhagwatilal & Anr. reported in ILR 1976 (26) (Raj.) 165 : 1975 RLW 496, learned counsel for the plainiff-appellants, Mr. V.K. Aggarwal, submitted that closing of S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 7/16 western side windows with the bricks permanently without permission of the landlord amounted to material alteration. Further relying upon a decision in the case of Badri Narain Tak Vs. M/s Shyam Naraian reported in 1982 Raj LR 256 : 1982 RLW 526, he urged that in three different portions of the suit premises with arches and gallery were converted into one hall by chopping of the pillars and arches, on which iron girders were also placed, which resulted into cracks in the wall, depriving the landlord to raise any further construction on the first and second floor of the said premises and such structural changes also have been brushed aside by the learned lower appellate court as justified for the alleged security reasons. He relied upon a decision delivered in the case of Gurbachan Singh & Anr. Vs. Shivalak Rubber Industries & Ors. reported in AIR 1996 SC 3057, the relevant para of the aforesaid judgment is quoted herein below: "Section 13 (2) (iii) contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 8/16 meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13 (2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purposes. In the instant case even if it is assumed that the tenant had raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the S.B. CIVIL SECOND APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 9/16 building or the demised premises. The removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new does and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the landlords within the meaning of Section 13 (2) (iii). Thus in the facts and circumstances of the case squarely falls within the mischief of the provisions contained in Section 13 (2) (iii) of the Act which make the tenant liable for eviction from the demised premises." On the other hand, Mr. O.P. Mehta, learned counsel for the respondent-defendant-tenants, vehemently supported the appellate court's judgment and by filing an application during the course of arguments, namely, IA No.11336/2012 dated 26.07.2012, he also tried to bring on record that alternative accommodation was also available to the plaintiffs for satisfying their bonafide needs and, therefore, the present second appeal deserves to be dismissed. He also urged that even if the material alterations of the nature of suit premises as specified above and as given in the plaint, was accepted, the same did not amount to any material alteration and, therefore, S.B. CIVIL SECOnD APPEAL No.21/1991 Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi Decision dt: 26/07/2012 10/16 the decree of eviction on both the grounds was unjustified by the learned trial court and, therefore, the appellate court was justified in reversing that judgment. In support of his contentions, learned counsel for the respondent-tenant, Mr. Mehta, relied upon a decision rendered in the case of Smt. Supyar Bai Vs. Smt. Gordharn Bai through her Legal Representatives, reported in 1992 (1) WLC 590 and in the case of Om Prakash Vs. Amar Singh & Anr., reported in AIR 1987 SC 617. ;