JAI BHAWAN Vs. PADAM SEN AND ANR.

JUDGEMENT

(1.) This is a landlord second appeal from the decree of the Additional Civil Judge, Muzaffarnagar dismissing the landlord's suit for the eviction of the tenant. The only point arising in the appeal is whether the tenant's action in covering half of the open space in front of his living rooms has materially altered the accommodation or is likely substantially to diminish its valuation as contemplated by Sec. 3 (1)(c) of the U.P. Control of Rent and Eviction Act. The facts, in so far as they are relevant for the determination of this question, are very briefly these. The accommodation is on the first floor of a house and consists of two rooms and an open space which serves as a terrace. It was 'open' in the sense that there was no roof above it but it was enclosed on all sides by a wall. It is alleged and admitted by the tenant-that he covered half of this open space by constructing a roof over it, leaving the other half open as before. This act provoked the landlord into filing a suit for the tenant's ejectment on the ground that he had made a construction, without his permission, which has materially altered the accommodation and substantially diminished its value. It has been found by both the courts below that the landlord's permission was not taken.

(2.) The trial court held that the construction of a roof over half of the open space amounted to a material alteration of the accommodation and decreed the suit. The lower appellate court held that it did not, and allowed the appeal and dismissed the suit for ejectment. The landlord has come to this court in second appeal. Mr. K.C. Agarwal for the appellant argued that the construction of a roof over a part of the errace amounts to a material alteration. I cannot agree, and the learned counsel cited no authority in support of his argument. The Words 'materially altered' have not been defined in Sec. 3 of the U.P. Control of Rent and Eviction Act, and they must be interpreted according to their ordinary meaning. It is not enough for a landlord who claims the right to file a suit for ejectment under Sec. 3(1)(c) to prove that the accommodation has been altered: he must establish that it has been materially altered. Clause (c) obviously draws a distinction between alterations which are material and those which are not. Not every alteration gives the landlord a right to eject a tenant; if that were so, it would be impossible for the tenant in the majority of cases to enjoy the use of the accommodation without constantly incurring the risk of ejectment under Clause (c). To give only one example, a tenant who was admitted to the tenancy during the cold weather may find during the following rainy season that it is not possible to sit on the terrace without constructing a temporary shelter from rain and sleet, and he would be entitled to construct such a shelter provided he does not change the character of the accommodation and the construction is removable without difficulty. I think the words "material alternation" must be interpreted within common sense and reason and not so as to make a reasonable enjoyment of the accommodation impossible for the tenant.

(3.) The question whether a particular alteration in the accommodation is material or not must be answered according to the circumstances of that case. It is neither possible nor desirable to lay down and rigid principle or rule which can cover the indefinite variety of cases which are likely to arise from time to time. In Sardar Bahadur Mathur Vs. Kali Prasad Gupta 1961 A.L.J. 137 , Srivastava, J., has formulated a number of principles for the guidance of the Court in determining whether a particular alteration can be regarded as material or not. I respectfully subscribe to these principles but would like to add that they are not exhaustive. The learned Judge, however, observed that the question whether the constructions in a particular case amount to a material alteration in the accommodation is one of law. With great respect, I have some difficulty in accepting this view. I think that the question whether in any particular case the construction made by the tenant 'has materially altered the accommodation or is likely substantially to diminish its value' appears to be one of fact. I am fortified in this opinion by the following passage from Halsubury's Laws of England, third Edition, Volume 23 (land-lord and tenant) p. 595:- "In each case it is a question of fact whether the alteration changes the nature of premises or property and if it is so, the tenant will be guilty of waste." If my view is correct, the question in issue is concluded by a finding of fact and no second appeal lies. But it is not necessary for me to refer this case to a large Bench for a reconsideration of the view expressed by A.P. Srivastava, J., in Sardar Bahadur Mathur Vs. Kali Prasad Gupta 1961 A.L.J. 137 as I am of the opinion that the construction made by the tenant in this case have not materially altered the accommodation.