G. M. LODHA, J. - (1.) THIS is defendant's appeal against the judgment of Additional District Judge, Tonk upholding the judgment of Munsif and Judici-al Magistrate, Tonk granting a decree in favour of the plantiff in a suit for evic-tion and arrears of rent.
(2.) THE facts so far as the relationship of landlord and tenant and the shop having undergone some alterations, which is the main bedrock of finding of eviction under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') is not in dispute. The plaintiff's case was that the defendant without his permission has made certain constructions. These allegations contained in the plaint are under:- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The defendant in his written statement did not dispute the raising of the walls, but pleaded permission. The relevant additional plea No. 1 of the written statement reads as under :- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The finding of both the lower Courts is that it is proved that the defendant has constructed two walls for closing the verandah on the two extreme sides and these walls have been constructed without the permission of the plaintiff. Before this Court Mr. Tikku did not challenge so for as this finding is concerned, but his submission is that the plaint is based on the alleged commission of an act under Section 13 (1) (b) of the Act, which reads as under:- "13.- Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or any order, in favour of a landlord, whether in execution of a decree otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied- (b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or"
(3.) CONTRARY to it both the lower Courts have given a decree on the basis of the finding based on Clause (1) sub-clause (c) of Section 13 of the Act, which reads as under:- " (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof; or" Mr. Tikku's contention is that neither there was any pleading, nor there was issue so for as Clause (c) is concerned and therefore, the finding is without any basis. Even otherwise it was not the case of any material alteration, because the only thing which has been done is to cover the open sides of the verandah for protecting the animals coming in and spoiling the verandah of the shop, which is beneficial for the shop, argued Mr. Tikku. ;