MULKH RAJ SON OF HANS RAJ, RESIDENT OF 92 SHAKTI NAGAR, JALANDHAR Vs. DR. VIJAY KUMAR AHUJA SON OF SH. BHAGWAN DASS, PROPRIETOR AHUJA CLINIC, SHAKTI NAGAR, JALANDHAR CITY

JUDGEMENT

(1.) THE revision is at the instance of the landlord who has suffered a reversal of fortune in his petition for eviction. The landlord was able to persuade the Rent Controller take the view that an enclosure by a wooden cabin placed at the verandah constituted a material alteration that impaired the value and the utility of the building. The tenant contended that the wooden cabin had been placed even at the time of the commencement of the tenancy but the Rent Controller rejected the plea. In appeal filed by the tenant, the finding that wooden cabin had been placed by the tenant was confirmed but the Appellate Court focused itself on the point that whether the wooden partitions made at the verandah constituted a sufficient ground for eviction. Dealing with the issue on the assumption that the tenant had made the wooden partitions in the verandah and used it as an additional place for his exclusive enjoyment, the Appellate authority examined whether the wooden structures were permanent or temporary. The Appellate Authority relied on the landlord's witness an Architect that they could be removed at any time. The Appellate Authority also considered a potent objection taken by the landlord that the additional structure made by the tenant actually obstructed light and air and the free use of the verandah as passage for public and also spoilt the frontage of the building. The Appellate Court reasoned that in view of the landlord's own admission that even if the wooden structures were to be removed, the verandah could still not to be used since all along the verandah, there were extension of shops by the other tenants as well and there was no impairment that could be caused exclusively to the landlord only.

(2.) THE learned Senior counsel appearing on behalf of the landlord cites to me several decisions which, according to him, govern the issue. A Division Bench of this Court has held in Narain Singh v. Bakson Laboratories etc. : AIR 1982 SC 55 that a conversion of a verandah of a residential building into a room by brick walls would constitute an impairment of value and utility of the building and a mere contention by the tenant that the structure could be removed easily and the building restored to its original condition could not be taken as tenable. In the same context, the learned Senior counsel would also refer to a decision of the Supreme Court in Vipin Kumar v. Roshan Lal Anand and others,, 1993(1) RCR 675 that the impairment of value or utility of building ought to be seen from the point of view of the landlord and not of the tenant. These decisions, in my view, could be easily distinguished. In the former decision a verandah in a residential house was altered by a masonry construction. The Court was rejecting the contention of the tenant that the construction could be removed at any time. The element of a construction capable of being removed could not be at all times decisive, for, after all with all the modern techniques of demolition, even concrete high -rise building could be reduced to rubble and brought to surface within a few seconds. That masonry construction could have been removed was, therefore, stating the obvious. In a normal parlance, we examined the permanence of construction by whether it is brick built masonry construction or temporary wooden planks to make cabins for greater convenience. If we are dealing with the idea of a person placing wooden cabins in the verandah which could always be removed without much ado and the landlord's witness also conceded, I would hold that the decisions which have been referred above will have no application. Again, the landlord's perception of what constitutes the impairment of value and utility of the building ought to stay in sync with the Court perception as well. The judgment of the Supreme Court in Vipin Kumar's case (supra) ought not to be understood as allowing for a whimsical inference by a landlord that even temporary structure for greater convenience must be perceived by landlord at all times as constituting impairment. An impairment which reduces the utility shall initially be to the manner in which the landlords perceived and it should be examined whether such a perception is tenable or not. That exercise will have to invariably be taken only by the Court and I am not convinced in this case that a temporary wooden structure placed at the verandah would constitute such an impairment.

(3.) IN this case, the tenant is a doctor who is carrying his profession and he has made wooden cabin for placing a washbasin and enhancing the value and service to his patients. I cannot see this to have any impairment to the value. The manner of appreciation of the rival contentions by the Appellate Authority conforms to law and I find no reason for interference with the same. The petition is dismissed.