Dismissed

M/S New Jhang Trspt Co. Pvt. Ltd. v. Surinder Kumar Ande Anr.

Punjab & Haryana HC26 Nov 2008CR/6505/2008

Case brief

AI extract

What is this about?

In a civil revision, the High Court dismissed the petition challenging an eviction order based on unauthorized construction. The Court held that a categorical finding on impairment of premises was not strictly required due to logical inference from the record and withdrawal of procedural grounds.

What did the court decide?

Revision petition dismissed; order of ejectment affirmed.

M/S New Jhang Trspt Co. Pvt. Ltd. Vs Surinder… — Landlord and Tenant | Punjab & Haryana HC (2008)

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Civil Revision No. 6505 of 2008

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In the High Court of Punjab and Haryana, at Chandigarh.

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Civil Revision No. 6505 of 2008

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Date of Decision: 26.11.2008

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M/s New Jhang Transport Co. Pvt. Ltd., Batala

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…Petitioner

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Versus

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Surinder Kumar and Another

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... Respondents

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CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

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Present: Mr. A.K.Chopra, Senior Advocate with Mr. Vaibhav Narang, Advocate for the petitioner.

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Mr. Aman Bahri, Advocate for the caveator/respondent.

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Kanwaljit Singh Ahluwalia, J. (Oral)

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Surinder Kumar and Pawan Kumar filed an application for ejectment of the petitioner-respondent from the demised premises as detailed and described in the head note of the petition.

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It was stated that the demised premises were rented out to the petitioner-tenant at the rate of Rs.500/- per month vide rent deed dated 17.12.1977. Later on rent was enhanced from Rs.500/- to Rs.800/-, thereafter to Rs.1,000/- per month. Three grounds were pleaded for seeking eviction of the tenant. Firstly that the tenant has neither paid nor tendered the arrears of rent since 1.2.1992, secondly, the tenant has made material alterations and additions without the

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Civil Revision No. 6505 of 2008

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consent and permission of the landlord. It was further stated that unauthorisedly a room, toilet and shed covered with cemented sheet and latrine urinal and wash basin has been constructed except one authorized room as shown in the plan annexed with the petition and thus, the same has impaired the value and utility of the demised premises by raising the said construction. Thirdly, it has been pleaded that a room constructed has become unfit and unsafe for human use and habitation.

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Written statement to the same was filed in which preliminary objections were taken that the landlord has no cause of action; they have not come to the Court with clean hands and the petition has been filed only in order to enhance the rent. It was stated that the entire arrears of rent has been tendered in the Court and the same has been accepted by the landlord. Regarding the ground of material impairment of value and utility of the demised premises, it was stated that in the rent note dated 17.12.1977, the right of raising the construction over vacant land has been given to the respondent-tenant. It was further stated that by raising construction rather value and utility of the property has been enhanced.

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Learned Rent Controller found that since arrears of rent has been paid, therefore, the ground of non-payment of rent no longer survives. It also held that the landlord has failed to prove that the premises has been found unfit for human habitation. However, learned Rent Controller concluded that property was rented out vide rent deed Ex.A1 dated 17.12.1977. Details of the property mentioned therein were two rooms, one room and some part of the verandah and permission

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Civil Revision No. 6505 of 2008

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was given to the tenant to construct one room only. Learned Rent Controller further held that AW.1 Suresh Kumar, Draftsman, has proved the site plan Ex.A2 and Pawan Kumar AW.3 has categorically stated that respondent-tenant has constructed two rooms, one verandah, latrine, bathroom with cement sheets . Learned Rent Controller further held that the tenant was only allowed to construct one room as per rent deed and construction of one room was without getting the permission of the landlord. It was stated that this fact has been corroborated by the testimony of AW.1 Suresh Kumar. Harjinder Singh RW.1 stated that as per rent note, he was authorized to construct one room in the premises but further stated that two rooms, one bath room, toilet and verandah were constructed about 10-15 years ago and the same was done with the permission of the landlord, however, there is no written consent available. Thus, learned Rent Controller held that this material alteration in the premises in question is without the permission of the landlord.

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Aggrieved against the same, tenant had filed an appeal and learned Appellate Authority affirmed the finding and held that there is no ambiguity in the finding of learned Rent Controller. It also placed reliance upon rent note Ex.A1, site plan Ex.A2 and statement of AW.1 Suresh Kumar. Learned Appellate Authority also took into consideration evidence of AW.1 Suresh Kumar and AW.3 Pawan Kumar and the appeal was dismissed.

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Mr. Chopra appearing for the tenant has raised two fold arguments. It has been stated that a look at the issues and the findings arrived at by the two Courts below show that no categoric finding has been given that such material alteration made in the property has

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Civil Revision No. 6505 of 2008

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diminished the value and utility of the rented premises. Mr. Chopra has referred to the provisions of Section 13(2)(iii) to say that a necessary ingredient of the Section is that the tenant ought to have committed such act which is likely to impair the value and utility of the rented premises. He has also placed reliance upon the Single Bench judgment of this Court in Sadhu Ram v. Niranjan Dass and Another 1983 Punjab Law Reporter 673 to contend that until a finding is given by the Court that construction raised has materially impaired the value and utility of the building eviction cannot be ordered.

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Learned counsel has drawn my attention to grounds of revision. In ground No.2 of the revision, in sub para (iv), it was stated that application under Order XLI Rule 27 read with Section 151 CPC was filed and the same was not decided when learned Appellate Authority dismissed the appeal. Ground No. 2(iv) of present revision petition read as under:-

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(iv) That being aggrieved against the order of ejectment dated January 8, 2004 passed by the Ld. Rent Controller, the petitioner preferred an appeal before the Ld. Appellate Authority. The bare perusal of the grounds set out therein shows that the reasons given as well as the observations made by the Ld. Rent Controller while passing the impugned order, were shown to be totally erroneous, unwarranted by the material on record and as such, unsustainable. Upon coming to know of the new and substantial facts/evidence, during the pendency of

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Civil Revision No. 6505 of 2008

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the appeal, the petitioner/tenant filed an application under Order XLI Rule 21 CPC seeking permission to place on record the same by way of additional evidence. The Ld. Appellate Authority issued notice on the said application to the respondents/landlords and reply to the said application was filed. However, without deciding the said application and passing any order thereon, the Ld. Appellate Authority, vide its judgment dated October 1, 2008, has dismissed the appeal and has affirmed the order of ejectment passed by the Ld. Rent Controller”.

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Mr. Aman Bahri, Advocate, has appeared on behalf of the caveator/respondent-landlord. He has stated that above averments made in grounds of revision is factually incorrect as the application was decided on the same day i.e. 1.10.2008. He has shown a photocopy of the order. Copy was also shown to Mr. Chopra who is satisfied that the said application was decided, therefore, second ground is not pressed.

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Having heard the arguments, this Court is left to determine whether it was essential and incumbent upon the two Courts below to say that once construction has been made impliedly it has impaired the value and utility of the building or a categoric finding was to be recorded. In the present case, Mr. Chopra has shown me the amended application of eviction in which it has been specifically submitted that the construction has impaired the value and utility of the demised premises. I have also perused the statement of Daljit Singh AW.4. Daljit Singh has stated that two rooms of 11¼ ‘ X 12’ has been raised without the

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permission of the landlord. Pawan Kumar AW.3 landlord specifically stated that due to raising of construction, the value and utility of the property has been impaired. Application of maxim of logical deduction is that if premise one and premise two are true then the conclusion has to be inescapable i.e. it will be only one and none else. In the preset case, when it was stated by the parties that construction has been raised and construction which include two rooms, one bath room, toilet, latrine and verandah is without permission of landlord, the necessary inference is that it has materially impaired the value and utility of the premises even though the same in specific words may not have been stated by the two Courts below. The tenor of judgments, discussion and analysis of this issue leave no doubt, that the two Courts below have pondered over this part of controversy and held unauthorized construction has made tenant liable for eviction, therefore, impliedly conduct of tenant has been taken into consideration as to how it has materially impaired the value and utility of the premises.

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Therefore, I find no merit in the present case and the same is dismissed.

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(Kanwaljit Singh Ahluwalia) Judge

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November 26, 2008 “ DK ”

M/S New Jhang Trspt Co. Pvt. Ltd. v. Surinder Kumar Ande Anr.

Case brief

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M/S New Jhang Trspt Co. Pvt. Ltd. v. Surinder Kumar Ande Anr.

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