Avadh Behari Rohatgi, J.
(1) This is a tenant's appeal against the order of the Rent Control Tribunal dated 3rd September, 1974.
(2) These are the facts. The respondent Shri A. R. Malik is the owner of a single storey house No. E-217 situated in Greater Kailash-I, New Delhi. There is one drawing room, two bed rooms, two baths, one kitchen, one store, courtyard and verandah on the ground floor of the house. There is no construction on the roof. There is of course a latrine there.
(3) On 1st December, 1964 the landlord let these premises on rent to Smt. Manorma Khanna at a monthly rent of Rs. 340.00 .
(4) On 6th April, 1972 the landlord made an application to the Rent Controller for permission to build on the roof under section 23 of the Delhi Rent Control Act, 1958. (the Act). That section says :
'WHEREthe landlord proposes to make any improvement in, or construct any additional structure on, any building which has been let to a tenant and the tenant refused to allow the landlord to make such improvement or construct such additional structure and the Controller, on an application made to him this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that such work will not cause any undue hardship to the tenant, the Controller may permit the landlord to do such work and may make such other order as he thinks fit in the circumstances of the case.'
(5) The tenant opposed the petition. She field her written statement on 12th of September, 1972. In her defense she principally raised three points. Firstly, she said that there is one entrance to the house. If the landlord is allowed to raise construction on the first floor she will not be able to live comfortably as labourers and workmen will have to pass and repass through her living person in order to reach the roof. Secondly, she alleged that she was carrying on business in the premises and if the landlord is allowed to build she will suffer loss in business. Thirdly she alleged that the landlord did not have any sanctioned plan and thereforee, permission cannot be given.
(6) After recording the evidence the Additional Rent Controller came to the conclusion that there would be no 'undue hardship' to the tenant if permission is granted to the landlord to construct additional structure on the first floor. He however, placed certain restrictions on the landlord for the purpose of raising construction. These are :
(1)That the landlord will not use the staircase for making the construction and will not enter the courtyard in possession of the respondent. This, in fact was an offer made by the landlord himself at the stage of arguments before the Additional Rent Controller. This was accepted and was imposed as a condition for construction.
(2)That the landlord will not pierce any wall through and through. Of course he can take necessary support for his construction on the first floor from the walls of the ground floor.
(3)The landlord will not use the staircase on the ground floor for carrying building material or for his workmen to pass during the course of construction.
(7) The Additional Rent Controller, did not decide the right in the staircase. He said 'these conditions will not affect any right in the staircase either now or after the completion of the construction.'
(8) By order dated 27th August, 1973 the Additional Rent Controller, granted permission under section 23 of the Act subject to the above conditions.
(9) The tenant went in appeal to the Rent Control Tribunal. The Tribunal affirmed the findings of the Additional Rent Controller. It dismissed the appeal on 3rd September, 1974. Now there is an appeal to this court by the tenant.
(10) In cases of permission to construct additional structure under section 23 of the Act, the Controller has to be satisfied about two things :
(1)That the landlord is ready and willing to commence work and
(2)that such work will not cause any 'undue hardship' to the tenant.
(11) On both these points the Additional Rent Controller as well as the Tribunal were satisfied. As regards landlord's readiness and willingness they found that he had a sum of Rs. 22,000 and odd in his account in the Bank. This amount was considered to be sufficient to raise additional structure which he wanted to erect and of which he had subnutted an estimate in his evidence before the Additional Rent Controller.
(12) As regards the second condition the Rent Control authorities, held that no 'undue hardship' will be caused if permission is granted.
(13) In my opinion both these conditions raise essentially questions of fact. They do not involve any question of law and much less a substantial question of law on which alone an appeal lies to this court under section 39(2) of the Act.
(14) What, then, is the meaning of 'undue hardship' 'Undue' simply means excessive. It means greater hardship than the circumstances warrant. It connotes something harsher and more severe than trifling inconvenience or transient discomfort.
(15) In any building activity there is bound to be some hardship to the tenant. Hardship by itself includes any matter of appreciable detriment whether personal, financial or otherwise, But the test at the anvil is 'undue hardship' which means this. For a hardship to be 'undue' it must be shown, in my opinion, that the particular burden, inconvenience or physical discomfort to the tenant is out of proportion to the benefit which the landlord would derive from the permission to build additional structure. The emphasis of the legislature is on the word 'undue' for hardship is implicit in any operation of building, as I have said.
(16) Judges have refrained from defining what 'undue hardship' is because there are infinite varieties of circumstances which might constitute undue hardship. It is neither possible nor wise to classify the manifold form that undue hardship may take as the aspects of detriment are as diverse and varied as the exigencies of human affairs. Each case must depend upon its own particular facts. What the Controller has to weigh and measure in each case broadly is whether by his order he will be inflicting such suffering on the tenant as will be out of proportion to the benefit to be gained by the landlord when he is allowed to build. If his answer is that the injury is greater than the gain he will refuse permission. If on an examination of the competitive laims the scales are weighted in favor of the landlord permission will be granted. In a word the Controller will ask the question : which of these alternatives will cause the least suffering
(17) Mrs. Hingorani, on behalf of the tenant has raised a number of points in the appeal. Firstly, it was said that permission to the landlord will mean that the tenant will not be able to live in the house with her daughter in peace and comfort. The Rent Control authorities did apply their mind to this question. They said that in order order that the tenant is not disturbed the landlord and his labourers shall not pass and repass through the main entrance gate of the house. Now what the landlord is doing is that from the side gate he is taking the labourers and the material on the first floor by means of two wooden ladders which he has placed in a part of the open verandah. thereforee, the objection of the tenant on this score was answered by imposing this condition on the landlord that he will not use the main stairs for carrying labour and material through it.
(18) Next it was contended that grant of permission means that the tenant will not be able to live in privacy and will not be able to use the courtyard. It was also said that the tenant is a heart patient and this will cause injury to her health if the landlord is allowed to build on the first floor. None of these points was raised by the tenant in the written statement. There is no evidence worth the name. I do not think her privacy or health will be affected if the landlord builds on the first floor. It is not a case of 'undue hardship' which in fact is the test laid down by the legislature for the Controller to apply when he is asked to give permission.
(19) It was not disputed that the landlord has a revalidated plan sanctioning the construction on the first floor. What was argued was that he has failed to produce a ''stability certificate'. No such point was raised in the written statement nor has any rule been shown to me which requires the landlord to obtain a 'stability certificate' from the Municipal Corporation of Delhi in order to commence construction. The architect of the tenant himself admitted that there was no bar in the way of the landlord for commencing the construction. Whether a 'stability certificate' is required or not is essentially a matter for the sanctioning authority to see. It is not for the tenant to question the sanction of the plan on that ground.
(20) The other objection to construction which was raised before the Rent Control Authorities is that the terrace and lavatory on the first floor form part of the tenanted premises and permission to build will amount to deprivation of this part of the tenanted premises. On this point the Additional Rent Controller found that the terrace and the lavatory were not included in the tenanted premises. The tenant never pleaded in her written statement that the terrace and the latrine formed part of the premises let to her. The landlord in the petition gave details of the accommodation let. The tenant admitted that fact. The terrace and the lavatory were not mentioned in the accommodation let. This finding of the Additional Controller was affirmed by the Tribunal.
(21) The counsel has raised two points. Firstly, she says that it was stated in the written statement as well as in evidence by the tenant that it was a single unit, a self-contained house which was taken by her on rent. This necessarily meant, it was argued, that the terrace and the latrine were in the tenancy of the tenant. Secondly, she said that the roof appertains to the main building and is not capable of separate letting. Whether the terrace and the lavatory formed part of the tenanted premises is essentially a question of fact. Both the Rent Control Authorities have found against the tenant. In second appeal this finding of fact cannot be upset. Moreover, it was never taken as a specific point in the written statement. No amount of evidence can be looked into for a plea which does not find a place in the pleadings.
(22) The other objection which was raised in the written statement was that the tenant will suffer in business if the landlord is allowed to build. The counsel has not pressed this objection though the Rent Control Authorities have found this point also against the tenant on the ground that the premises were let for residential purpose and admittedly business was started somewhere in 1970 when the husband of the tenant died. Since this question has not been argued before me I need not say anything further on it.
(23) The counsel then argued that proper course for the landlord was to file a petition of ejectment of the tenant on the ground specified in clause (g) of the proviso to section 14(1) of the act. This is a matter for the landlord to decide whether he would have the tenant evicted or would be able to construct additional structure with the tenant living at the same time. Considerations under clause (g) read with sub-section (8) of S. 14 are entirely different from the considerations which are to weigh with the Rent Controller under S. 23 of the Act. The two provisions deal with different situations. Under clause (g) the building work cannot be carried out without the premises being vacated. Such is the nature of the work. Under S. 23 the Controller grants permission to build without asking the tenant to vacate the premises provided no 'undue hardship' is caused to him.
(24) It was then said that the question of 'undue hardship' is a mixed question of law and fact. Reliance was placed on two English decisions : Chandler V. Strevett (1947) 1 All Er 164(1) and Sims v. Wilson (1946)2 All Er 261(2). In many opinion the question is one of fact and not a mixed question of law and fact. Whether a tenant will be put to undue hardship if the landlord is allowed to build is a question which has to be examined by the Rent Control Authorities on the evidence led before them. The nature of the premises and the nature of the construction will necessarily enter into the verdict. In each case the controller has to decide by taking all the relevant factors into account whether the tenant will be unduly inconvenienced if the landlord builds an additional structure. To settle whether there will be 'undue hardship' to the tenant in a given case is a practical question. That can only be settled by considering the whole of the circumstances of the case. It is a pragmatic test. It is empirical in nature. It raises essentially an issue of fact. In any case, the tenant has to pin point in his pleadings and evidence what is that 'undue hardship' which will be caused if permission is granted. The burden is on him. As I have said only three points were raised before the Additional Controller. He decided all of them against the tenant. He has given specific findings. He did not allow the entrance to be used. As regards the plan he found that there was a valid sanction. With regard to the loss of business he found the same against the tenant. These findings were all confirmed by the Rent Control Tribunal.
(25) In my opinion this appeal does not raise any substantial question of law. Findings of fact recorded by the Rent Control Authorities are binding on this court under section 39(2) of the Act.
(26) It was then said that during the course of construction the landlord had removed the doors in the staircase leading from the ground floor to the terrace. The second complaint was that the water supply to one of the bath rooms had been disconnected by removing the water tank which was supplying water previously. The third complaint is that the courtyard which was previously covered has now been uncovered by the landlord.
(27) On the application of the tenant I stayed the construction which had been commenced. That order was passed on 25th March, 1975. Since then construction has been stopped.
(28) I also appointed a Commissioner on 25th of March, 1975 to make a report on the complaints of the tenant. That report was duly submitted.
(29) At the request of the parties I agreed to inspect the premises on 24th April, 1975. In the presence of the counsel for the parties I looked into the complaints of the tenant and the condition of the house. I asked the landlord to replace the door in the stairs. This has now been done. As regards water supply to the second bath room I ordered that to be connected with the water tank which is supplying water to the other bath room by means of a pipe. The supply has been restored to the other bath room. Of course, the landlord has removed the water tank which had been originally put for supply of water to this second bath room. This had to be done as of necessity otherwise he would not have been able to build on the first floor. The water supply has to be restored by the londlord after he has completed the construction by putting an additional tank which will supply water to the second bath room as before.
(30) As regards uncovering of the courtyard, the landlord has agreed to cover the courtyard by placing asbestos sheets so that nothing falls from the terrace into the courtyard. This will be done within a week from today.
(31) The other conditions imposed by the Additional Rent Controller on the landlord for the purpose of building will be observed. If there is non-observance of any of the conditions imposed by the Additional Controller or by this judgment, the tenant will have a right to apply to She Additional Controller and he will see that the construction is made in accordance with the terms of the permission granted to the landlord.
(32) The tenant has al?o made an application for punishing the landlord for contempt. On 25th March, 1975 when I stopped the construction, I directed the landlord to put one chowkidar at the site to look after his building material as well as the construction raised by him. In the contempt application two complaints have been made. One is that instead of one chowkidar four persons were put by the landlord. Secondly, it was said that those persons made a lot of noise The landlord on affidavit has denied these complaints. I do not find any substance in them. It was argued that the landlord should not be heard in this appeal till he purges himself of contempt. The landlord stopped the construetion on the receipt of my order. This is not disputed. I do not find he has committed any contempt. I dismiss C.M. numbers 546 and 552 of 1975.
(33) For these reasons I dismiss the appeal. Orders of the Rent Control Authorities are affirmed. Under the circumstances of the case I will leave the parties to bear their own costs.