PALI RAM Vs. HIRA LAL

JUDGEMENT

(1.) THIS second appeal is by the tenants in a suit for eviction from a shop situate in Chirawa. The respondent Hiralal had filed a suit for eviction against the appellants on three grounds, namely, (i) default in payment of rent (ii) reasonable and bonafide personal necessity, and (iii) material alteration of the premises. The Munsif & Judicial Magistrate, First Class, Chirawa by his judgment and decree dated 13th November, 1979 decided against the respondent on the issue of reasonable and bonafide personal necessity and as regards the default in payment of rent also it was held that the decree for eviction could not be passed because the appellants have deposited the rent in accordance with the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The Munsiff, however, decided issue with regard to material alteration against the appellants and passed a decree for eviction on that ground. The said decree of the Munsiff has been affirmed in appeal by the Civil Judge, Jhunjhunu by his judgment and decree dated 8th November, 1983. Hence this second appeal.

(2.) THE only question which arises for consideration in this appeal is as to whether the construction that has been made by the appellants in the suit premises amounts to material alteration of the premises. It has been found that on the Chabutra in front of the suit premises, the appellants have put a wooden 'khokha (temporary structure. . . measuring 10' x3-1/2' and for that purpose they have also constructed a wall in the side measuring 10' of a height of 3'. It has been submitted by the learned counsel for the appellants that the said constructions do not constitute material alterations and, therefore, they do not found a ground for eviction under clause (c) of Sub-sec. (1) of sec. 13 of the Act. In this connection reliance has been placed by learned counsel on the decision of the Supreme Court in Om Prakash. vs. Amar Singh (1 ). In my view the said contention of the learned counsel must be accepted. In Om Prakash Vs. Amar Singh (supra) the Supreme Court has construed the expression "material alteration" contained in Section 14 of the U. P. Cantonment Rent Control Act, 1952, and it has been laid down that the expression "material alteration" means a substantial change in the character, form and the structure of the building without destroying its identity. THE Supreme Court has further laid down: - "in determining the question the court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. THE legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide aground for tenents' eviction, it took care to use the word "materially altered the accommodation". THE material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. THE legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a chabutra, almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accomodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. THE essential element which needs consideration is as to whether the constructions are substantial in nature and they later the form, front and structure of the accommodation. " In that case a partition wall and tin-shed had been constructed. THE Supreme Court held that the said constructions could not be regarded as a material alteration. As regards the tin-shed, the Supreme Court found that a kachha wall had been constructed for the tin-shed made of bricks and mud and bamboo tatters were used for it and the shed was constructed on an open land and it was of temporary nature and it could be removed without damaging the building. If the present case is examined in the light of the aforesaid decision of the Supreme Court it will be found that here also the 'khokha' which has been put by the appellants is a structure of a temporary nature. It is on an open chabutra and it could be removed without damaging the building. Mere construction of wall of 3' height cannot be regarded as an alteration of substantial character which changes the character, form or the structure of the building. In these circumstances, I am of the view that the courts below have eared in holding that the appellants have made a material alteration in the suit premises.