Dismissed

Subhash Jain v. Lalita Devi

Rajasthan HC12 Mar 2024CSA/383/2003

Case brief

AI extract

What is this about?

Second appeal by tenant against eviction decree based on material alteration of premises. Court found permanent changes like wall construction and commmon area encroachment constituted material alteration warranting eviction. Appeal dismissed and original decree affirmed.

What did the court decide?

Second appeal dismissed; judgment and decree dated 23.03.2001 in civil suit No. 123/1994 affirmed.

Subhash Jain Vs Lalita Devi — Landlord and Tenant | Rajasthan HC (2024)

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[2024:RJ-JP:26940]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 383/2003

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Subhash Jain S/o Shri Kesri Chand Jain House No. 1429, Maniharon Ka Rasta, Jaipur

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----Appellant

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Versus

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Smt. Lalita Devi W/o Shri Babulal Tamboli, House No. 1429, Maniharon Ka Rasta, Jaipur

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----Respondent

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For Appellant(s) : Mr. Mohd. Adil For Respondent(s) : Mr. A.K. Pareek with Ms. Rani Bhandari Ms. Lalita Devi (present in person)

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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12/03/2024

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Instant second appeal is preferred by appellant defendant aggrieved from dismissal of first appeal No.32/2001 under Section 96 of CPC, on 20.03.2003 by learned Additional District Judge No.6, Jaipur City, Jaipur which was filed against judgment and decree dated 23.03.2001 in civil suit No.123/1994 passed by learned Civil Judge (Junior Division), Jaipur City (West), Jaipur.

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The facts giving rise to institution of this appeal are that respondent plaintiff landlord has filed a civil suit for rent and eviction against the appellant defendant on 31.01.1994 in relation to property mentioned in para No.1 of the plaint on the ground of default, bonafide and personal need, material alteration and nuisance. The defendant has filed written statement admitting the

(2 of 5)

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tenancy but denying the grounds of eviction and also dues on account of rent.

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On the basis of pleadings of parties, the trial court has framed as many as 10 issues, wherein issue No.7 was not pressed. Three witnesses namely Lalita, Rajesh and Satyaprakash were examined by the plaintiff and document Ex.1/1 was exhibited by the plaintiff. Three witnesses DW-1 Subhash Jain, DW-2 Shantilal Jain and DW-3 Ramesh Jain were examined by the defendant (appellant herein) and four documents were exhibited. 4. After considering the material on record, issue No.6 was decided in favour of plaintiff (respondent herein) and appellant defendant was held liable for material alteration in the rent premises and so ordered for eviction but other issues were decided against the plaintiff. Issue No.1 was decided in favour of plaintiff and issue No.8 was partially decided in favour of plaintiff. Issue Nos. 2, 3,4 and 5 were decided against plaintiff. Issue No.9 decided against defendant. As a result the suit of the plaintiff was decreed in favour of plaintiff and decree of eviction was passed on the ground of material altercation.

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Aggrieved from aforesaid, the first appeal was preferred under Section 96 of CPC by defendant appellant and same was considered as civil regular appeal No.32/2001 by learned Additional District Judge No.1 Jaipur City, Jaipur. After consideration, the first appeal was dismissed on 23.03.2003. Aggrieved from aforesaid, second appeal is preferred by appellant defendant (tenant).

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On 26.05.2003 at the time is admission, following substantial questions of law were framed by a Co-ordinate Bench of this Court:

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“1. Whether the alteration in rented premises as alleged by the plaintiff. Without admitting the same, which neither materially impairs the value of utility of the premises nor change the form and basic structure of the building is sufficient so as to warrant decree for eviction. If not then decree for eviction passed by two courts below can be sustained?

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Whether the alteration as alleged by the plaintiff can be held to be material so as to warrant the decree for eviction when neither it diminish the value nor change the basic structure of the rented premises?”

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Learned counsel for appellant while relying upon grounds of appeal submitted that the trial court after considering the legal position has erroneously jumped to the conclusion that the appellant defendant has caused material alteration to the rented premises which resulted into lowering the value of suit property. He further submitted that minor changes or repair work cannot be termed as material alteration therefore the trial court has committed serious error while deciding issue No.6 against the defendant appellant. He also submitted that the first appellate court without considering the evidence on record has mechanically dismissed the appeal whereas the appellate court was bound under Section 96 CPC to consider the evidence on record. He also referred certain portion of evidence and submitted that the conclusion drawn by the trial and appellate courts are perverse and illegal and beyond the material on record.

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(4 of 5)

Aforesaid contentions were opposed by learned counsel for respondent plaintiff and submitted that issue No.6 was decided on the basis of evidence of both the parties. He pointed out that the material alteration is different than the repair. He also referred the evidence on record and submitted that there is no illegality in the decision arrived by the trial court. He also submitted that there is concurrent finding of facts and factual issues cannot be reagitated in second appeal.

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The instant appeal is against order of eviction passed on ground of material alteration by appellant defendant (tenant). Section 13(1)(c) of Rajasthan Premises (Control of Rent and Eviction) 1950 provides that if the tenant without permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof.

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A perusal of record indicated that after construction of a wall, the tenant defendant has encroached upon toilet and converted for exclusive use, which was earlier meant for use in common. Further, it has been found that a passage was also closed and same was earlier used as common for all. The evidence on record also shows that a gate was opened. The trial court noticed aforesaid facts and also opined that if this construction is not treated as material alteration even then it has damaged the suit property. The evidence further suggested that respondent plaintiff has not given any express or implied consent for aforesaid work. After considering the judgment of this court the trial court has concluded that the appellant defendant has committed aforesaid act. The changes referred in evidence and found proved by

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learned trial court, reflects that these are permanent changes and they tend to change character of the property. Thus, it is not a temporary change or alteration.

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Having considered the evidence on record, nowhere it was established that the construction as raised by defendant appellant, falls in the definition of repair or maintenance. Moreover by the aforesaid alteration the suit property was materially altered. Therefore we cannot disagree with the contentions of learned counsel for appellant and trial court has rightly decided issue No.6 in favour of respondent plaintiff. Therefore both the questions as framed by this court at the time of admission were answered in negative.

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In view of discussion made hereinabove the appellant defendant has failed to prove substantial question of law i.e. Issue Nos. 1 and 2, therefore the appeal sans merit and liable to be dismissed.

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Accordingly, second appeal preferred aggrieved from judgment dated 20.03.2003 in criminal appeal No. 32/2001 is hereby dismissed and judgment and decree dated 23.03.2001 in civil suit No. 123/1994 is hereby affirmed. No order as to cost.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /36

Subhash Jain v. Lalita Devi

Case brief

What is this about?

What did the court decide?

Subhash Jain v. Lalita Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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