ADHISHWAR PARSHAD JAIN Vs. INDER PARKASH

JUDGEMENT

(1.) I . Scope of enquiry : The only surviving point for consideration before this Court in revision petition is whether the landlord established that the tenant has done acts which have materially impaired the tenanted premises. The Rent Controller found in favour of the landlord and the Appellate Authority reversed the decision finding, inter alia, that whatever construction that had been effected did not materially affect the building and in any event, the landlord himself had acquiesced in the alterations in the building carried out by the tenant. The landlord who suffered a reversal of fortunes at the Appellate Court is the revision-petitioner before this Court. II. Landlord's complaint :

(2.) THE impairment complained of in the rent control petition is stated in the following words :

(3.) BEFORE the Rent Controller when the tenant had filed a petition in the year 1984, the landlord examined the very same architect who had earlier given a report in favour of the tenants to speak about three aspects, which, according to the landlord, had caused material impairment of the building : (i) the flooring of the construction had been changed, (ii) the ceiling had been raised by about 2 feet and (iii) a little wall over the door frame at the front had been removed. The Rent Controller on consideration of the evidence placed before him accepted the contention of the landlord. The Appellate Authority reversed the finding on a reasoning that in respect of everyone of the alleged changes attributed to the tenant, the landlord had not objected immediately and the so-called changes that had been effected between the year October 1980 to January, 1981 as contended by the landlord could not be a ground of complaint in petition which was filed on 26.3.1984. This according to the Appellate Authority was sufficient to infer that there had been acquiescence on the part of the landlord. In particular, the Appellate Authority had stated that the level of the roof of back portion of the shop was two inches higher than the adjoining shops in the same row and it was also not disputed that the floor of back portion of the shop was lower by 1-1/2 feet than the other shops. The Appellate Authority reasoned that the statement of Subhash Sehgal who was a star witness of the landlord and who had appeared in the earlier proceedings between the parties that the raising of ceiling and the lowering of flooring had been effected subsequent to the earlier proceedings could not be true by virtue of the fact that in the statement of one Chain Sukh Dass who had given evidence earlier on 21.7.1979 in the civil suit that the roof of the level of the shop was higher than the other shops and floor was lower than other shop. This statement according to the Appellate Authority clinched the matter that these changes could not have been effected in the manner spoken to by the landlord. Instead of even examining whether these changes had been effected by the tenant, the Appellate Authority reasons that the petitioner Adishwar Parshad Jain had admitted that when these alterations had been made by the tenant, he had not resorted to litigation nor obtained any stay from the Court. The Appellate Authority further reasoned that if the landlord had been absent, even his brothers as co-owners had not taken any action. The Appellate Authority also stated that there was no evidence that when the alterations had been done, he had removed the materials from the shop to some other premises. The Appellate Authority observed that the landlord had not filed the original plans for the house to indicate the height of the building and nature of flooring and in the absence of the same, it was difficult to attribute that the tenant could have done the same. The Appellate Authority also reasoned that the evidence of the architect himself did not evoke confidence because he had admitted in findings that he had not stepped into the building while inspecting the building afresh before drawing of a report. Adverting to the witnesses on the side of the respondent, the Appellate Authority stated that the tenant had not carried out any structural changes and he had merely fitted the racks in the entire shop. He, however, admitted to the fact that in the adjoining shops which were also owned by the same landlord, there was merely a wooden front door while at the demised premises a steel shutter had been fixed. Evidently the attempt of the landlord was to show that the wooden door had been removed and in its place a rolling shutter had been fixed by the tenant without his concurrence. The Appellate Authority concluded that the walls of the shop could not have been raised without the permission of the Municipal Committee but the tiny wall which was in existence at some point of time had been removed even earlier to 1980 after which the landlord was receiving the rent without demur. The Appellate Authority, however, stated that there was no definite proof as to when this had been removed and the landlord must be deemed to have acquiesced and waived. Towards the end, the Appellate Authority stated that the landlord had failed to establish that the above alterations were made by the tenant during the period 1980 to 1981.The findings of the Rent Controller were, therefore, set aside. V. Grounds of attack by revision petitioner :