BABU KABARI Vs. IQBAL HUSSAIN

JUDGEMENT

(1.) RAJESH Tandon, J. Heard Sri Sarvesh Agarwal, counsel for the revisionists and Sri Prabhakar Joshi, counsel for the respondents.

(2.) BY the present Civil Revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionists have prayed for setting aside the judg ment and decree dated 21. 03. 2005 passed by the Additional District Judge/ 1st Fast Track Court, Nainital in S. C. C. Case No. 14 of 2000 Sri Iqbal Hussain and others Vs. Sri Baboo Kabari.

(3.) SO far as the averments with re gard to the arrears of rent is concerned, the defendant has stated that no arrears of rent are due upon him and so far as paragraph 7 of the plaint is concerned, the same has been denied as under: Hindi 6. In paragraph 16 of the written statement, it has been stated that the defendant has not made any illegal con struction in the. tenanted portion so as to diminish the value or disfigure the building in dispute. Relevant paragraph is quoted below : Hindi 7. Both the parties were examined on oath. P. W. I has come in the witness box. He has stated that the defendant has constructed the latrine. There is no averment in the statement that the la trine has been constructed on the front portion of the ground floor of the Verandah. The said statement is quoted be low : Hindi 8. However, further it has come in the evidence that the building in ques tion is double storeyed building. Further the plaintiff has made statement in the cross-examination to the following effect: 9. D. W. I has also come in the wit ness box and he has denied that he has not constructed the latrine on the ground floor. Relevant portion is quoted below: Hindi 10. The Judge Small Cause Court has framed as many as two issues to the following effect: " (1) Whether the defendant has failed to pay the rent of the premises in his possession and has been in arrears of rent for more than four months, if yes, its effect? (2) Whether the defendant has done any material alteration in the tenanted portion, which has di minished the value and price of the building in dispute and has disfigured the same?" 11. SO far as Issue No. 1 is con cerned, finding was recorded in favour of the defendant that the defendant has deposited the entire arrears of rent un der Section 20 (4) of the U. P Act No. 13 of 1972. 12. SO far as Issue No. 2 is con cerned, finding was recorded that the defendant has made the mischief as con tained under Section 20 (2) (b) and (c) of the U. P Act No. 13 of 1972 and therefore, he is liable to be evicted. 13. The Judge Small Cause Court has relied upon the statements to the following effect : 14. The Judge Small Cause Court has come to the conclusion that the de fendant has constructed the latrine on the ground-floor without the consent and permission in writing of the plaintiff. The said finding is quoted below : Hindi 15. Thereafter, the Judge Small Cause Court has come to the conclusion that the defendant has disfigured the same. 16. Section 20 (2) (b) and (c) of the U. P Act No. 13 of 1972 reads as under " (b) that the tenant has willfully caused or permitted to be caused substantial damage to the building; (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural altera tion in the building as is likely to di minish its value or utility or to dis figure it;" 17. Counsel for the revisionist-de fendants has submitted that in view of the pleadings of the parties, it is evident that the Latrine forms part of the first floor and not of the ground-floor and there is no plaint averments that the la trine was ever constructed on the ground-floor so as to constitute the mis chief as contained under Section 20 (2} (b) and (c) of the Act. 18. In Om Prakash Vs. Amar Singh and another AIR 1987 SC Page 185, the Apex Court has observed as under : "one portion of the tin-shed was al ready is existence on the open land adjacent to the accommodation, the appellant merely extended that tin shed which did not make any sub stantially change either in the form structure of the building. There is no material on record to sustain the find ings of the High Court that the ap pellant had constructed pacca walls on three sides of the tin shed; instead the Commissioner's report is contrary to it. In the circumstances the con struction of tin shed could not be held to have materially altered the accommodation. 10. Learned-Counsel then urged that this Court should not interfere with the findings of fact recorded by the high Court. We find no merit in the submission. The question whether disputed construction constituted ma terial alternations is a mixed question of fact and law. The High Court in second appeal interfered with the findings of facts recorded by the lower courts on the question whether tin shed and the partition wall consti tuted material alterations. The learned Single Judge placing reliance on the observations of the Full Bench decision in Sita Ram's case (supra) held that the disputed construction even though temporary in nature, which could be removed without causing any damage to the accom modation, would fall within the mis chief of material alterations. " 19. Counsel for the revisionist has referred Smt. Amita Arya and others Vs. Addl;, District Judge IX, District Allahabadl999 (l) ARC Page 96, where it has been held that in order to prove the mischief under Section 20 (2) (b) and (c), following three ingredients have to be proved : "7- Learned Counsel for the petition ers vehemently argued that in order to attract clause (c) of sub- section (2) of Section 20 of the Act, it is nec essary for the landlord to prove the following facts:- (1) that the tenant has without the permission in writing of the landlord made or permitted to be made any construction or structural alteration in the building under tenancy, and (2) that the construction or structural alterations so made was of such a nature as was likely to diminish the value of the tenanted building or its utility or to disfigure it. 8. It is well settled law that in order to attract the provision of clause (. c) of Section 20 (2) of the Act it is not necessary that all the three contingen cies namely diminion in value or util ity or disfiguration of the tenanted building must co-exist together. The requirement of Section 20 (2) (c) of the Act will be fulfilled if the case is brought under any of three categories mentioned above. 9. In the present case the landlord came with the case that the construc tions raised by the tenant without permission have diminished the util ity of the tenanted premises and have also disfigured it. However, as rightly pointed out by the learned Counsel for the petitioner, neither the trial Court nor the revisional Court have recorded any categorical finding that the constructions alleged to have been raised by the tenant have in fact di minished the utility of the tenanted building or have disfigured the same. The revisional Court very conven iently avoided to answer this question by observing that merely because the trail Court has not used the specific words as are contained in clause (c), the finding does not stand vitiated, but it failed to notice that whether in a particular case the constructions raised by the tenant have really di minished the utility of the tenanted building or disfigured the same is a mixed question of law and fact. There may be some constructions which may not fall under any of the categories mentioned in clause (c), and this vital and crucial question can be answered only after assessment of the evidence in the light of nature and kind of the construction. No finding has been recorded as to what particu lar constructions have been raised by the tenant in the present case and what was their kind and nature and for what purpose they were raised and in what way they have affected the utility of the tenanted building and/or how for and in what manner they have changed, defaced or changed the figure or appearance of the building. There are all questions of fact to be answered on appraisal of evidence. In the absence of spe cific findings, clause (c) could not be applied to in a mechanical manner. The impugned orders on this ground alone are not sustainable. " 20. Two questions, therefore, are to be decided by the Judge Small Caus,e Court : (I) With regard to the existence of the latrine on the ground floor or first-floor and if required the matter may be examined by ap pointing the commission. (II) Even assuming that construction has been done on the ground floor or first floor whether such structure in the tenanted portion is coverd so as to cause eviction of the tenant under Section 20 (2) (b) and (c) of the U. P Act ' No. 13 of 1972. 21. In view of the observations made above, the revision is allowed on Issue No. 2 and the matter is sent back to the Judge Small Cause Court for deciding afresh in the light of the observations made above. No order as to costs. .