Guman Mal Lodha, J.
1. This is defendant's appeal against the judgment of Additional District Judges Tonk upholding the judgment of Munsif and Judicial Magistrate, Tonk granting a decree in favour of the plaintiff in a suit for eviction and arrears of rent.
2. The facts so far as the relationship of landlord and tenant and the shop having undergone some alterations, which is the main bedrock of finding of eviction under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here inafter referred to as 'the Act') is not in dispute.
3. The plaintiff's case was that the defendent without his permission has made certain constructions. These allegations contained in the plaint as under:
^^ ;g fd blds vykok izfroknh us ekg vDVwcj] 1971 es oknh dh nqdku ds ckgj ds Nhuks dk ikVhZ'ku yxkdj nqkdu dks NksVk dj fn;k gS rFkk nqdku es euekuh rksM+&QksM;+ o ,Mh'kuy vkyVas'ku fcuk Lohd`r o fcuk ethZ oknh djk nh gS A vkSj nqdku dks izfroknh u substantially damage s dj fn;k gS A izfroknh fdjk;snkj dh gSfl;r ls nqdku es rksM+&QksM;+ o ,Mh'kuy vkyVs'ku djkus dk vf/kdkjh ugh gS Ablfy, Hkh oknh v.M+j lsD'ku 131lh vkWQ nh jktLFkku fizehtst d.Vksy vkWQ jsUV ,.M+ bohD'ku ,DV] 1950 ds rgr izfroknh ls nqdku [kkyh djokus dk vf/kdkjh gS A^^
4. The defendant in his written statement did not dispute the raising of the walls but pleaded permission. The relevant additional plea No. 1 of the written statement reads as under:
;g fd izfroknh dks oknh us cjkens ds nksusk rjQ bZVks dh fnokj mBkus ds fy, dgk Fkk Amlds vuqlkj izfroknh us ckgj cjkens es nhokj mBkbZ FkhA mlls nqdku dh dher ch gS Aizfroknh ds bles rFkk ckgj pcwrjs ij inkZ djkus es rFkk nqdku es fctyh yxkus es 715@& :Ik;s dk;Z lqn gS tks dkfCkts eqtjkbZ gS A,rn~ izfroknh dks fnyk;s tkus ;ksX; gS A
5. The finding of both the lower Court is that it is proved that the defendant has constructed two walls for closing the Verandah on the two extreme sides and these walls have been constructed without, the permission of the plaintiff
6. Before this Court Mr. Tikku did not challenge so-far as this finding is concerned, but his submission is that the plaint is based on the alleged commission of an act under Section 13(1) (b) of the Act, which reads as under:
13. Eviction of tenants--(1) Not with standing anything Contained in any law or contract, no Court shall pass any decree, or make any order in favour of a landlord whether in execution of a decree or other-wise 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:
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or
7. Contrary to it both the lower Courts have given a decree on the basis of the finding based on Clause (1) sub-clause (c) of Section 13 of the Act which reads as under :
(c) that the tenent has without the 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
8. Mr. Tikku's contention is that, neither there was any pleading, nor there was any issue so far as Clause (c) is concerned, and, therefore, the finding is without any basis.
9. Even otherwise it was not the case of any material alteration, because the only thing which has been done is to cover the two open sides of the Verandah for protecting the animals coming in and spoiling the Verandah of the shop, which is beneficial for the shop argued Mr. Tikku.
10. In my opinion, the relevant question which calls for consideration in this appeal is two fold (1) whether the alteration which is admitted is material one, and (2) whether such a finding and decree can be given in the absence of a specific pleading of material alteration.
11. In this respect both the learned counsel have relied upon a number of judgments of the various Court including that of the Supreme Court and I would like to discuss them during the discussion of my finding.
12. First of all, since the first appellate. Court has given finding of fact and it has been admitted also in this case, it will have to be seen whether the alteration by construction of the two walls on the two sides of the Verandah is material or not.
13. I must here clearify that sub-clause, (c) of Clause (1) of Section 13 of the Act read as a whole means that if material alteration is done in the premises then it is an act which renders the tenant liable to eviction, if it is done without permission.
14. In sub-clause (c) there is alternative clause that if any construction is done which is likely to diminish the value, then also the tenant becomes liable to eviction irrespective of the fact whether that alters the premises materially or not.
15. It would be thus seen that construction of the walls from the two sides fulfills the condition so far as the first part of sub-clause (c) is concerned which only requires that the tenant has made certain constructions without permission of the land lord. However, in order to get a decree for eviction a landlord is further required to prove that such construction has either materially altered premises or is likely to diminish the value thereof.
16. In Badri Narain Tak v. Shyam Narain this Court considering the question of construction of brick wall in a shop, without permission of landlord, for converting shop into the shops, whether it amounts to altering the premises materially. The decision of this Court in Raghu Nath v. Bala Bux 1975 WLN 427 was also considered in this case. This Court did not agree with the view of Raghu Nath Singh's case (supra) and distinguished the point in that case it was held that a 'Pardi' which was 5' in length 4' in width and 3' in height was constructed to provide protection from rains and sun because the tin-shed was being used as a kitchen and, therefore, the 'Pardi' was not of permanent character. On those facts it was held that the construction did not result in any material alteration.
17. In Badri Narain Tak's case (supra) this Court has further held that even if the wall constructed was removed later on it would not make any difference as the ground of ejectment would still continue. In para 10 this Court observed as under:
There cannot be any doubt that construction of a brick wall in a shop for converting the shop into two shops instead of one shop is an alteration which materially alters the premises as contemplated by sub-clause (c) of Sub-section (1) of Section 13 of the Act.
18. Mr. Tikku relied upon Raghu Nath Singh's case (supra), reference and discussion above which has already been given in my judgment in Badri Narain Tak's case (supra). In Raghu Nath Singh's case (supra) as per the discussion in details in Badri Narain Tak's case (supra) what was constructed was a 'Pardi' in the third floor of the house under the tin shed. Hon'ble Mr. Justice Jain, as he then was, observed asunder:
I am of the opinion that Pardi wall in question cannot be said to be of a permanent character and it does not materially alter the suit premises as has been found by the lower appellate Court.
19. In the above judgment reference has been made on decision of Mohan Lal v. Govindi Bai 1971 RLW 64 in which a wooden cabin was held to be a material alteration on Chabutari.
20. In Ratan Lal v. Moti Lal 1973 RLW 118 and Khiya Ram v. Lakhi Prasad (1964) 14 ILR Raj 819 the questions of material alterations were discussed. In Khiya Ram's case (supra) it was observed that a Chabutri with a tin-shed was rented out and the tenant raised the height of the tin-shed and fixed doors with wooden frame. On those facts the Courts below held that the constructions were material alterations to the disputed premises. Bhargava, J., affirmed this conclusion.
21. In the present case, the crux of the matter is that two sides of the Verandah have been closed by Pucca walls of bricks. The finding of the lower Courts that this has materially altered the premises, is primarily a finding of fact, but for interpreting the word 'material' it must also be treated as a mixed finding of fact and law as held by Hon'ble Mr. Justice Jain in the above case. Even on that assumption the question is that whether if a Verandah is closed on two sides by Pucca walls, the alteration can be said to be immaterial. In my considered opinion closing of Verandah on both the sides by Pucca walls i.e. of bricks and not a Kutcha Pardi or some temporary construction like some putting wooden flanks or thorn fencing or some temporary other structures, would certainly tantamount to material alteration of the property and the premises. It is immaterial as to whether it increases the value of the property or diminishes the value, because that is alternative clause. In a given case making of Pucca construction may increase the value of the property. Suppose if a Verandah is covered by walls on both sides it would convert the same into a room and it would not diminish the value, but it would increase the value. The Legislature did not classify the alteration in order to become actionable for eviction to be both material and further such which would diminish the value, hut has used the word 'or'. The legislative intention is very clear that a tenant could not male any material construction without permission of the landlord irrespective of the fact whether it increases the value or diminishes the value. Suppose a plot is given to a tenant and further he constructs a building on it, it would certainly increase the value, but none the less it is a material alteration on the basis of which eviction can be claimed. The object of the Legislation is that a tenant should maintain the premies in the same shape and condition and should not do any material alteration. Any construction which materially alters a premises irrespective of the consideration whether the value is increased or decreased would be actionable and would entitle a landlord to claim eviction against the tenant.
22. In this view of the matter I am inclined to hold and agree with the view of the two Courts below that putting of Pucca construction in the form of brick walls on both the sides of the Verandha tantamounts to a construction which materially alters the premises as required by Section 13(1)(c) of the Act.
23. The next question which is still much more important is whether in the absence of a specific pleading of material alteration a decree granted by the two Courts below can be upheld. In this connection the observations of the Federal Court in M/s Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd AIR 1950 FC 83 may be noticed for guidance. The eminent jurist and Judge Mr. Patanjali Sastri, as he then was, observed in para 59 as under:
The function of a pleading is only to state material facts (O. 6, Rule 2) and it is for the Court to determine the legal result of those facts and to mould the relief in accordance with that result.
24. Construction of Order, 6 Rule 2 CPC was made on similar laws vide Chief Justice Mr. Kania and Mr. Mahajan, J. in the above judgment.
25. It is also established principle that law is not required to be pleaded in the plaint.
26. Further as held in Afzal Ullah v. State of U.P AIR 1964 SC 264 mere mention of wrong provision under which bye-laws were purported to be made is not sufficient to declare bye-laws invalid.
27. In that case the impugned bye-laws were validly made under Section 298.
28. In S.B. Noronah v. Prem Kumari Khanna 1979(2) RCJ 375 it was observed by Hon'ble Mr. Justice Krishna Iyer and Hon'ble Mr. Justice P.N. Shinghal that common sense should not be kept in cold storage when pleadings are construed. The important observations are as under:
Held, pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed. It is too plain for words that the position for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by Courts by sancitifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacunas and there was no need to amend at all. Parties win or loss on substantial questions not 'technical tortures' and Court cannot be abettors.
22. The above observations of eminent Judges of the Hon'ble Supreme Court only provide the hall mark and land mark of the recent legislative and Judicial trend that parties win or lose on substantial questions and not on technical tortures.
30. The guidance provided by these eminent Judges in the above judgment that common sense should not be kept in cold storage when pleadings are construed is a virtual radical departure and setting at naught of the old rigid doctrine of law that pleadings should be construed strictly and no amount of proof can be looked into in the absence of specific pleadings. If I may say so with respect to earlier Privy Council view which was based more on technicalities, no longer provides good guidance to us when the dimensions of social justice and substantial justice have been well defined by the Hon'ble Judges of the Supreme Court who have observed that common sense while doing substantial justice should not be in cold storage, and exhibit their concern on substantial questions and not on technicalities of law. If I may say so that old doctrine and principles of giving rigid construction of pleadings have now become obsolete and what is required is that Judges should go to the root of the matter, apply their common sense for doing substantial justice and not punish parties for either loose drafting by the lawyers or absence of use of appropriate legal terms or mention of law on account of in experience or inefficiency or otherwise. In other words, the task of Judge is not to act as Head Masters or Drill Masters to teach discipline, but to act as social engineers committed to the principles of the Constitution for doing social justice and substantial justice, which means speedy justice cutting the red tappism of several innings of litigation and by ignoring lacuna of drafting add lacuna of pleadings.
31. In the above view of the matter I have got not hesitation in holding that in the present case that, though the drafting of the plaint as well as the issues certainly give an impression that it was confined to the allegation of Section 13 (1)(b) of the Act, which has been referred in the plaint itself, the language of Section 13 (1)(c) of the Act very well finds place in it as alteration without permission of the landlord is mentioned in the pleading and Clause (c) in terms require an allegation that there has been construction without permission of the landlord. Once it is pleaded, then the further requirement is that in the opinion of the Court such construction has materially altered the premises or is likely to diminish value thereof.
32. It is to be remembered that this is a matter of opinion of the Court as per the wordings of Clause (c) itself and the opinion of the Court whether the construction which always means alteration, is material or not is to be deduced on the basis of proved facts irrespective either emphasis in the pleadings and absence of assertion in the pleadings. The opinion of the Court is to be based on the evidence recorded or the facts admitted or proved. The construction of two walls by bricks having been admitted and proved, the opinion of the Court is to be given on the basis of these facts whether in the Verandah on the ground floor the closing of the two sides of Verandah by Pucca construction of bricks walls is material alteration or not ?
33. It is to be remembered that opinion of the Court as required by Section 13(1)(c) of the Act is not a matter which the party may plead or not plead, because after all, all said and done it is not the opinion of the litigant, but opinion of the Court. The Legislature has used the word 'Court' and it is very significant. In this view of the matter the pleading is not very material, but what is material is opinion of the Court.
34. The basic facts of construction and alteration having been pleaded and found to be proved, I am of the opinion that this construction has resulted in material alteration as observed above. In that view of the matter, I am in agreement with the view of the two Courts below.
35. The result of the above discussion is that both the points, which have been canvassed by Mr. Tikku, though they raise important questions of law, but on a thorough thoughtful consideration and analysis of the provisions of law, the pleadings and the evidence, I am convinced that they are not sufficient to reverse the findings of the two Courts below.
36. In this respect it may also be pointed out that in earlier decision of this Court in Madho Lal v. Smt. Govindi Bai (supra), this Court has already observed that even omission of 'material' as qualifying the 'alteration' would not result in non-Suiting the plaintiff. In para 8 Hon'ble Lodha, J., as he then was, observed as under:
The only question, therefore, is whether the construction of the cabin amounts to a material alteration of the leased premises Learned counsel for the appellant has urged that all that has been stated by the plaintiff in this connection in the plaint is that the defendant has erected a wooden cabin on the Thela and that there is no allegation that the construction of the said cabin has materially altered the premises, and, therefore, the respondent should not be allowed to argue the question of material alteration by construction of this cabin. It may be observed that the point whether the impugned construction of the cabin has materially altered the premises was argued before the trial court as well as before the first appellate court and the parties went to trial with full knowledge of the implications of law in connection with the construction of a cabin by the defendant. It may be technically true that in the plaint it was not stated precisely that the alleged construction had materially altered the premises yet the nature of the construction has been described in the plaint, and it was further alleged that the same was done without the permission of the plaintiff. The nature of the construction is not in dispute, and the question whether it is a material alteration of the premises or not, is only a matter of inference. Consequently, I am unable to accede to the contention raised by the learned counsel for the appellant to the effect that the plaintiff is not entitled to rely on this ground.
37. It would be thus obvious that in that case also technically it was proved that the plaint did not state that the alleged construction materially altered the premises, but the nature of construction was described and it was alleged that this was done without permission of the plaintiff.
38. This Court observed that nature of the construction not being in dispute and the question whether it is a material alteration of the premises or not is only a matter of inference.
39. As I have entered into detailed discussion of these provisions, opinion of the Court was not noticed at that time by the Hon'ble Judge, otherwise his view which supports the view, which I have taken, would have been much more fortified.
40. The result of the above discussion is that this appeal fails and is hereby dismissed without any order as to costs.