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Parmeshwari Dass Khanna Vs. Bhola Nath Parihar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 84 of 1973
Judge
Reported inAIR1982Delhi77; 18(1980)DLT372
ActsTransfer of Property Act, 1882 - Sections 108; Specific Relief Act, 1963; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantParmeshwari Dass Khanna
RespondentBhola Nath Parihar
Advocates: J.R. Tandon and; Prem Chand, Advs
Cases ReferredSmt. Vidyawati v. Bhup Singh
Excerpt:
.....indeed it would appear from the sequence of events that the appellant had planned well and he contrived systematically first to lower the level of the platform then to replace the wooden shutter with an iron shutter and finally to lower the floor of the shop itself. thus the cause of action envisaged therein precisely is substantial damage to the demised premises and every act of waste or structural alteration will not entitle......obtaining the consent of the appellants-landlords. the alterations consisted of lowering of the floor level of the shop by about 1' by excavating earth there from and putting up a new floor of lowering correspondingly the front door which entitled cutting and removal of the plinth band on which the door rested, of lowering likewise the level of the staircase in the shop and putting up new steps thereto and lastly of lowering the height of the chabutara outside the shop so as to correspond it to the new level of the ground floor of the shop. having regard to the same their lordships observed as under:- 'without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations.....
Judgment:

J.D. Jain, J.

(1) The facts giving rise to this regular second appeal succinctly are that the appellant has been in occupation of Shop No. VIII/ 328, Bazar Ajmeri Gate, as a tenant under the respondent on a monthly rent of-Rs. 18.60 since early fifties. There was a platform in front of the said shop which was 2.2.' higher than the level of foot-path. The level of the floor inside the shop was at the same height from the pavement. However, the appellant lowered the level of the platform by about 'without the consent and permission of the Respondent/landlord. He also replaced the wooden shutter with an iron shutter likewise. He intended even to lower the level of the floor, of the. shop so as to bring it to the level of the platform infront of the shop. This necessitated dismantling of the existing floor and lowering the plinth of the shop by 1. On coming to know of it the respondent-landlord objected to the same but in vain. Finding that the appellant was adament the respondent-landlord instituted a suit for injunction as far back as June 1965, to restrain the appellant from lowering the level of the floor of the shop and effecting any other alteration in the same.

(2) The appellant resisted, inter alia, contending that suit for perpetual injunction as framed was not maintainable in as much as he was merely repairing the floor of the shop which was uneven in order to bring it to the level of the platform outside. He asserted that he had put up the iron shutter at a very heavy cost with the consent of the respondent/landlord and even otherwise he was within his right to put the shutter to protect his property lying in the shop.

(3) It was urged that it was for the sake of convenience of the customers that the floor of the shop which was uneven was being lowered and brought to the level of the platform outside as there was a possibility for customers stumbling over the same. He denied that he had any intention to carry out any alterations in the structure of the shop as such. In other words, his plea was that the lowering of the floor of the shop was not tant- amount to alteration in the structure of the shop and it was just a necessary repair which he could do in his own right as a tenant. It was further urged that mere relaying of the floor did not in any manner prejudice the security of the building; rather it would make the shop better serviceable. The trial proceeded on the following issues :

1. Whether the suit is maintainable in the present form 2. Whether the plaintiff is entitled to the injunction prayed for 3. Relief.

3. The trial court found issue No. 2 for the appellant and dismissed the suit of the plaintiff-respondent. Consequently the latter preferred an appeal which was accepted by an Additional District Judge vide his judgment dated 12.10.1972. However, the appellant did not have the patience to wait for the decision of the appeal and taking full advantage of the temporary respite from adinterim injunction he translated his threat into action and actually lowered the level of the floor and relaid it. Hence while accepting the appeal the learned Additional District Judge took note of the change in the situation and granted the respondent-plaintiff a decree for mandatory injunction directing the appellant to restore the floor to its original condition.

(4) Evidently the controversy lies in a narrow compass, the only crucial point for determination being as to whether the act of the appellant in lowering the floor of the shop amounts to structural ateration as to call for relief by way of injunction. As observed earlier the appellant was determined to do so and he lost no time the moment he got an opportunity to carry out his design. Ex.P. 1 is the rent note dated 8.3.1951 which was executed by the appellant in favor of the defendant at the inception of the tenancy. It inter alias contains a stipulation by the appellant that he would not indulge in any act of waste (torphor)inthe shop in question and that he would get it repaired as and when need be during the course of tenancy. It further recites that he was handed over possession of the shop in sound condition after necessary repairs had been carried out and that he would deliver back the possession of the shop in perfect condition after getting necessary repairs done at the time of vocating it. It is thus crystal clear that the appellant was under a contractual obligation not to indulge in any act of waste or damage to the demised premises during the term of tenancy and he was bound to restore the shop in sound condition after getting it duly repaired at the time of vacating it. That apart, Section 108 of the Transfer Of Property Act sets out in a convenient for the implied convenants subsisting in a lease which are, of course, applicable in the absence of a contract or local usage to the contrary. Under Clause (m) thereof, the lessee is bound to keep and on the termination of the lease to restore the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force. Further clause (o) required the lessee to use the property as a person of ordinary prudence who would use it as if it were his own and he is forbidden to pull down or damage the building belonging to the lesser or commit any other act which is destructive or permanently injurious thereto. Thus the tenant must keep the property in as good condition as he found it and he must yield up the property in the same condition subject only to fair wear and tear and irresistible force. In other words the tenant cannot make structural additions and alterations without the consent of the landlord and the alterations that are not authorised would amount to breach of the implied convenant mentioned in clause (m) as also in clause (o). Hence the convenant for general repair in the instant case has to be construed with reference to the condition of the building at the commencement of the tenancy. A repair simply implies renewal and replacement of parts that have decayed and when that is done the new is put in place of the old. So if the floor of a house has become rotten, the tenant must put a new floor but he is not entitled to make any kind of alteration i.e. by lowering it or by making any other change in any portion of the building. No doubt a repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs and it may amount to reconstruction. Repair essentially implies a restoration of the stability or safety of a subsidiary part of a building and it or any portion of it would not take within its sweap the reconstruction in entirety of the .subject matter. Having regard to the admitted fact that the old floor was dug deep by one foot and a new floor relaid at a lower plinth level there can be no room for doubt that it is tantamount to reconstruction and structural change in the shop and not merely a repair as explained above. In Manmohan Das Shah and others v. Bishun Das, : [1967]1SCR836 , the Supreme Court while dealing with a case under Section 3(l)(c) of U.P. (Temporary) Control of Rent and Eviction Act was concerned with the meaning of the expression 'material alteration' used therein. It was found by the Court of first instance as well as the first appellate court concurrently that the respondent-tenant in that case had carried out alterations without obtaining the consent of the appellants-landlords. The alterations consisted of lowering of the floor level of the shop by about 1' by excavating earth there from and putting up a new floor of lowering correspondingly the front door which entitled cutting and removal of the plinth band on which the door rested, of lowering likewise the level of the staircase in the shop and putting up new steps thereto and lastly of lowering the height of the Chabutara outside the shop so as to correspond it to the new level of the ground floor of the shop. Having regard to the same their lordships observed as under:-

'Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The 'expression' material alterations in its ordinary meaning would mean important alterations', such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease.'

Their Lordships finally concluded with the following observations :-

'These are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises............ As already stated even if the alterations did not cause any damage to the premises or did not substantially diminish their value they were material alterations and on that basis alone the appellants were entitled to evict the respondent.'

(5) Only recently this Court (Rajinder Sachar J., had to consider a similar situation in Smt. Vidyawati v. Bhup Singh 1979 (1) R.G.R. 407 which was a case under Section 14(1)(j) of Delhi Rent Control Act. It was found that the tenants had lowered the floor levels of two shops by 1- 7' and it. was held by his Lordshop that it amounted to substantial damage. The. learned Judge observed:

'I should have thought that if once a finding is given by the lower appellate court that floor had been lowered by the respondent the further finding about the damage would automatically be the inevitable consequence'.

(6) Thus the approach of the learned Additional District Judge is perfectly correct and sound. The impairment of a building has to be examined from the point of view of owner and not from the point of view of the tenant and an alteration of structural nature by the tenant would certainly entitle the landlord to ask for relief by way of injunction of appropriate nature. It certainly amounts to a breach of an obligation existing in favor of the landlord under the terms of the lease whether express or implied and the landlord is entitled to restrain the tenant from doing so. In the instant case the tenant taking advantage of the absence of interim injunction was able to circumvent the law. So the learned Additional, District Judge was justified in moulding the relief and grant the decree having regard to the change in situation. So even though the original suit was for prohibitary injunction the appellate court was justified in granting mandatory injunction on appellant actually committing breach of his legal obligation for keeping the demised premises in tact. Indeed it would appear from the sequence of events that the appellant had planned well and he contrived systematically first to lower the level of the platform then to replace the wooden shutter with an iron shutter and finally to lower the floor of the shop itself. So even though grant of injunction is a discretionary relief, the discretion vesting in the Court has been judiciously and fairly exercised by the appellate Court in the in stant case.

(7) The learned counsel for the appellant then contended that the respondent-landlord is not entitled to the relief mandatory injunction when an equally efficacious remedy by way of eviction of the appellant under clause (j) of Section 14(1) of Delhi Rent Control Act is available to him. The said clause entitles a landlord to seek eviction of the tenant on the ground that the latter has whether before or after the commencement of the said Act caused or permitted to be caused substantial damage to the premises. Thus the cause of action envisaged therein precisely is substantial damage to the demised premises and every act of waste or structural alteration will not entitle. the landlord to obtain an order of eviction. In other words, the provisions of Delhi Rent Control Act are more stringent in this respect and the landlord need not resort to proceedings for eviction of the tenant if another suitable remedy under the general law is available to him. Chapter Viii of the Specific Relief Act deals with relief of injunction which may be granted to the plaintiff to prevent the breach of an obligation existing in his favor, whether expressly or by implication. An injunction is a judicial process by which one who has invaded or has threatened to invade the rights, legal or equitable, of another is restrained from continuing or commencing such wrongful act. It may be either mandatory or prohibitory; the object of an order or decree for injunction being generally protective and preventive rather than restorative, though it is not necessarily confind to the former. The word 'obligation' includes every duty enforceable by law. So when alegal duty is imposed on a person in respect of another, that other is invested with a corresponding legal right. Accordingly an injunction can be granted to the plaintiff-landlord to prevent the breach of an obligation existing in his favor under the tenancy when the defendant-tenant invades or threatens to invade the plaintiff's right by using the demised premises in a way not consistent with the convenants of the lease or when he alters the structure of the building by making excavation or unauthorised construction etc. on the leased premises.

(8) It bears repetition that the tenant is under a legal obligation to keep the demised premises in the same condition and injunction would be the proper remedy to prevent him from making any stuctural altertion which may change the appearance of the demised premises, even though it may not be amount to substantial damage within the meaning of clause (J) of Section 14(1) of Delhi Rent Control Act. Needless to say that these are two different remedies meant to meet different situations although in a given case the landlord may be entitled to both of them but not always so. Hence the respondent-landlord in this case is entitled to relief by way of injunction even though he may not be entitled to claim eviction of the appellant under Delhi Rent Control Act. The contention raised by the counsel for the appellant, thereforee, is absolutely devoid of any force. Hence grant of mandatory injunction by the lower appellate court was the only appropriate relief which could be granted in view of the changed circumstances and high handed conduct of the appellant.

(9) To sum up, thereforee, I find no merit in this appeal. It is accordingly dismissed with costs. Counsel fee Rs. 200.


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