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Sukhlal Vs. Bhopal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 26 of 1966
Judge
Reported inAIR1973Raj35; 1972()WLN101
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1)
AppellantSukhlal
RespondentBhopal Singh and ors.
Advocates: S.K. Mal Lodha, Adv.
DispositionAppeal allowed
Cases ReferredMadhav Lal v. Smt. Govindi Bai
Excerpt:
.....act of putting up fixtures in the opening or entrance, in my view, will not be making of a construction as may materially alter the premises also, in my view, the making of a 'kucha' floor pucka or that of plastering a 'kucha' wall will not be the making of such a construction as would be materially altering the premises. - - (1) notwithstanding anything contained in any law or contract no court shall pass any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this act unless it is satisfied: it is not the defendant's case that the cabin is of a mobile nature, and is not attached to the 'chabutra'.on the other hand, from the words used by the..........very uncommon to close it by any sort of structure. further in that case the tenant had a betel shop at the 'chabutra' when the premises were let out to him for that purpose, but by making the alterations he had divided it into two portions; one of which was occupied by his son for betel shop, and the other portion was held by the tenant for selling tea. it was in that context that the learned judge held that the premises had been materially altered and the act was within the mischief of section 13 (1) (c) of the act. i am in thorough and respectful agreement with the principle enunciated in this case, but have to notice that the outcome of the case depended on the facts and circumstances of that particular case.8. there is yet another case decided by lodha, j. which has been.....
Judgment:

Kan Singh, J.

1. This is a defendant's second appeal in a suit for ejectment and arrears of rent in respect of a shop.

2. Plaintiff-respondent had leased out his shop to the defendant-appellant on a monthly rent of Rs. 13/-. The suit for ejectment was based on the ground of defaults in payment of rent as also on the allegation that the defendant-tenant had made material alterations in the suit premises. It was alleged that the defendant had fixed a door in the open verandah of the shop and had thereby closed the outer portion of the shop. The defendant was further alleged to have made the 'Kutcha' floor of the shop 'Pucka' and also had plastered the walls which were 'Kutcha'. The defendant admitted the fixation of the door, but asserted that It was so done with the consent of the plaintiff. The learned Munsif came to the conclusion that the defendant was not a defaulter in the payment of rent. Regarding the alterations he held that it was not correct that the alterations had been made by the defendant with the consent of the plaintiff. He then considered the question whether the alterations found to have been made by thedefendant in the suit premises were within the mischief of Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the 'Act'. The learned Munsif came to the conclusion that the alterations made by the defendant in the suit premises were not mere repair work but they were material alterations within the meaning of Section 13 (1) (c) of the Act and as they were made without the consent, of the landlord, the defendant was liable to be ejected. The conclusions of the learned Munsif in his own words were as follows:--

'In the present case, what the defendant has carried out on the suit premises is not a mere repair work, the floor of the shop was 'Kuchha' which is now set with stone slabs. A new door has been fixed to the Verandah. The defendant says thus about previous addition tc nqdku eSus fdjk;k yh rc ojkUMk[kqyk Fkk mlds njoktk ugh Fkk

The condition of the walls, when the premises were let out to the defendant has been described thus ^^nhokjs feV~Vh dh Fkh**-

Later the defendant says that he got the wall plastered. In my view, the above jobs certainly fall within the definition of material alterations. I therefore decide this issue in the affirmative.'

In the result, the learned Munsif awarded a decree of ejectment in favour of the plaintiff. Rupees twenty-three as rent which were due upto 22-10-1963 were also ordered to be paid by the defendant.

3. Aggrieved by the judgment and decree of the learned Munsif the defendant went up in appeal to the Court of the Civil Judge, Udaipur. The learned Civil Judge, by and large, agreed with the learned Munsif. He observed:

'It is clear from the evidence that the outer portion of the suit premises was open, and by fixing up the door, the open verandah has been closed. This alteration, to my mind certainly falls within the ambit of Section 13, Sub-section (i), Clause C of Premises (Control of Rent and Eviction) Act, 1950'.

... ... ... ... ... ... 'In the present case, defendant has not carried out mere repair work on the suit premises, but he had erected certain structure, in the shape of closing an open Verandah, which has materially altered the suit premises. The floor of the shop was 'Kachha' which is now covered by stone slabs A new door has been fixed to the Verandah. Defendant has himself stated that ' ^^tc nqdku eSus fdjk;k yh rc ojkUMk [kqyk Fkk mlds njoktk ugh Fkk---**

He has further stated that

^^nhokjs feV~Vh dh Fkh**- Later on defendant got the wall plastered. These works, as stated above, certainly fall within, the definition of material alterations. I, therefore, concur with the finding of the trial Court on this issue'.

In the result, he dismissed the appeal.

4. It is in these circumstances that the defendant has come to this Court in further appeal.

5. Learned counsel for the appellant has assailed the correctness of the judgment and decree of the Court below. He contends that the making of the floor of the shop 'pucka' or plastering the walls or for that matter putting up a door on the verandah were alterations no doubt, but they were neither material nor could it be said that the defendant had thereby made any construction within the meaning of Section 13 (1) (c) of the Act.

6. The only point that, therefore. arises for my consideration in the circumstances is whether on account of the three acts attributed to the defendant namely, that of making the floor 'pucka', or of plastering the 'Kucha' walls of the shop, or putting up a door in the verandah would bring the case within the mischief of Section 13 (1) (c) of the Act I may read Section 13 (1) (c) of the Act :

'Section 13. Eviction of tenants. (1) Notwithstanding anything contained in any law or contract no Court shall pass any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act unless it is satisfied:--

(a) .....

(b) .....

(c) that the tenant has without me 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; or.................'

Now, Sub-clause (c) will be attracted (1) when the tenant makes any construction in the premises, and (2) when such construction has materially altered the premises or is likely to diminish the value thereof. This should be so in the opinion of the Court and again this should be without the permission of the landlord. The question here, therefore, is whether the defendant can be said to have made any construction In the premises when he had put up a door in the verandah, The dictionary meaning of the word 'to construct' is, inter alia, 'to build up: to compile: to put together the parts of to make: to compose:' (vide Chambers's 20th Century Dictionary -- Revised Edition). The term 'fixture' means 'fixing a movable that has become fastened toland or to a house a fixed article or furniture: a thing or person permanently established in a place'. Putting up of a door is, to my mind, only an act of having a door frame fixed to the opening or entrance and by itself will not amount to an act of construction in respect of the premises. The making of a 'pucka' floor in place of a 'Kucha' one or having a 'Kucha' wall plastered to would not be a construction as would materially alter the premises or would be likely to diminish the value thereof.

7. In Khinvaram v. Lakhi Prasad, 1964 Raj LW 213. Bhargava, J. had occasion to consider the scope of Section 13 (1) (c) of the Act He observed:

'The question whether any material alteration has been made in the premises is a question of fact in each case depending upon the nature of the premises and nature, extent and effect of the constructions made therein. The alteration should be of structural nature and not merely of decorative nature. Fixing 3 door to a room or to a garage by a tenant may not amount to material alteration within the meaning of Section 13 (1) (c) of the Act but same will not be the case when an open verandah is covered into a closed room by fixing doors on the open portion. The character and shape of the premises in the former case remain unchanged while in the latter case the form and structure of the premises is changed'.

In the case before Bhargava, J. there Was a 'Chabutra' with a tin shed over it and the same was converted into a closed room. It was admitted by the tenant in that case that he had constructed a 'pucka' masonary wall on the floor of the 'Chabutra' and had thereby converted the whole of the open 'Chabutra' into a closed shop, a part of which was, on the admission of the tenant, occupied by his son. The learned Judge further noticed that the 'Chabutra' was generally kept open and it was very uncommon to close it by any sort of structure. Further in that case the tenant had a betel shop at the 'Chabutra' when the premises were let out to him for that purpose, but by making the alterations he had divided it into two portions; one of which was occupied by his son for betel shop, and the other portion was held by the tenant for selling tea. It was in that context that the learned Judge held that the premises had been materially altered and the act was within the mischief of Section 13 (1) (c) of the Act. I am in thorough and respectful agreement with the principle enunciated in this case, but have to notice that the outcome of the case depended on the facts and circumstances of that particular case.

8. There is yet another case decided by Lodha, J. which has been reportedas Madhav Lal v. Smt. Govindi Bai, 1970 WLN 599. In that case the tenant had constructed a wooden cabin on the 'Chabutra'. The construction of the cabin was held to be a material alteration within the meaning of Section 13 (1) (c) of the Act, otherwise Lodha, J. concurred with the view propounded by Bhargava, J. in 1964 Raj LW 213. This is what Lodha, J. observed regarding the cabin:

'In this connection it may be useful to point out that the impugned construction in the present case appears to be of some lasting duration as the defendant has also stated that the cabin has been constructed on the 'chabutra' and the allegation by the plaintiff in the plaint that a cabin has been erected on the 'chabutra' has not been denied. It is not the defendant's case that the cabin is of a mobile nature, and is not attached to the 'chabutra'. On the other hand, from the words used by the defendant in the written statement as well as in his deposition there is reason to believe that it has been fixed up and attached to the 'chabutra' so as to form a pan of the leased out premises. In this view of the matter, I have come to the conclusion that the plaintiff has succeeded in establishing that the defendant has made such construction as has materially altered the leased out premises and has thereby incurred the liability of being ejected'.

I am not here called upon to consider the question of the construction of a cabin, but the question is whether the fixing up of a door will be tantamount to the making of construction as would materially alter the premises. To my mind, the act of putting up only the wooden frame with shutters in the opening or entrance is not a construction within the meaning of the section, but it is only an act of putting up a fixture, which cannot be said to be the making of a construction. Some aid can also be derived from the definition of the term 'premises' as given in Section 3 (v) of the Act. It reads as follows:

'Section 3. (v) 'Premises' means-

(a) any land not being used for agricultural purpose, and

(b) any building or part of a building (other than a farm building) let or intended to be let for use as a residence or for commercial use or any other purpose, including-

(i) the gardens, grounds, godowns, garages and outhouses, if any, appurtenant to such building or part.

(ii) any furniture supplied by the landlord for use in such building or part

(iii) any fitting affixed to and amenities provided in. such building or part for the more beneficial enjoyment thereof, and

(iv) any land appurtenant to and let with any such building or part.

but does not include a room or other accommodation in a hotel, sarai, lodging house, boarding house or hostel'.

Premises normally mean any building or a part of a building used as a residence or for commercial use, or any other purpose. It is the inclusive part that includes any fittings affixed to an amenity provided in such building. Therefore, mere act of putting up fixtures in the opening or entrance, in my view, will not be making of construction as may materially alter the premises. Also, in my view, the making of a 'Kucha' floor 'pucka' or that of plastering a 'Kucha' wall will not be the making of such a construction as would be materially altering the premises.

9. For the above reasons it cannot be said that the plaintiff has been successful in bringing his case for eviction under Section 13 (1) (c) of the Act.

10. The result is that I allow this appeal, set aside the judgment and decree of the Court below regarding the eviction of the defendant-appellant from the suit premises.

11. Since no one has appeared on the side of the respondents, the appellant shall bear his own costs of the appeal.


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