SAT PAL SINGH Vs. RAMESHWAR SINGH

JUDGEMENT

(1.) THIS revision petition by the landlord-petitioner is directed against the judgment dated 2.8.1979 passed by the learned Appellate Authority, Ambala under Section 15(4) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Act') whereby an appeal filed by the tenant-respondent against the order of his ejectment from the shop in dispute passed by the learned Rent Controller, Ambala Cantt. Vide his judgment dated 21.2.1979 has been set aside and the application under Section 13 of the Act filed by the petitioner has been dismissed.

(2.) THE petitioner is the landlord and the respondent is a tenant under him in shop No. 167/12, Saddar Bazar, Ambala Cantt. at a monthly rent of Rs. 60/- besides water tax. An application under Section 13 of the Act was filed by the petitioner seeking ejectment of the respondent on three grounds, namely, that he had not paid or tendered rent and water tax for the period from 1.5.1975 to 30.4.1976; that he had made additions and alterations in the tenancy premises without any right and without the permission in writing of the petitioner and has thus changed the design and shape of the shop and that he has stared using the premises for sale of handloom articles without any right and without the consent in writing of the petitioner. It is alleged that the shop was let out to him for carrying on the business of photography. The respondent filed his written statement. He tendered the arrears of rent along with interest and costs on the first date of hearing and, therefore, the ground of non-payment of rent was rendered non-existent. After receiving the evidence of the parties, the learned Rent Controller ordered eviction of the respondent on the ground that the had converted the verandah in front of the shop in a shape of room and this amounts to material impairment of the value and utility of the demised premises. He, however, negatived the ground of change of user of the shop by holding that simple addition of the business of selling bed sheet carrying on the business of photography by the respondent did not come within the mischief of clause (ii)(b) of Sub section 2 of Section 13 of the Act.

(3.) I have heard the learned counsel for the parties by them also gone through their pleadings as also the evidence adduced by them before the learned Rent Controller. The plan Exhibit A. 7 on the record shows that 8 feet wide verandah is in front of the shops adjoining on either side of the one under lease with the respondent. It has been stated by the petitioner while appearing as his own witness as AW. 5 that there is a block of shops belonging to himself and his brothers and there is a verandah in front of all these shops. The shop under lease with the respondent belongs to him. He has no doubt stated that the respondent has converted the verandah in front of the shop into a room by using wooden partition. It has, however, come in the statement of Gian Chadan Jain, AW. 1, in cross-examination that the portion of the verandah in front of other shops has been similarly partitioned by putting up pardah wall or wooden planks. He, however, could not say when these partitions in the verandah were erected. He denied that right from the beginning these partitions are existing in the verandah. Jasbir Singh son of the petitioner appeared as AW. 2. In cross-examination he denied knowledge of the fact that the wooden partition had been erected after demolishing the walls in the verandah. Neither in the application under Section 13 of the Act nor in the course of evidence has it been pointed out specifically as to at what point of time did the respondent erect wooden partition in the verandah in front of his shop and converted it into a room. The case of the respondent on the other hand is that the partition in the verandah was in existence right from the inception of the tenancy and even before that. The petitioner in the course of his statement as AW.5 has admitted that in the beginning the rate of rent of the shop in dispute was Rs. 24/- per month. Later on it was increase to Rs. 33/- per month and for the last 2 or 2-1/2 years increased rent at the rate of Rs. 60/- per month is being paid by the respondent.