Dalip Kaur vs Harbhajan Kaur

N.K. Sud, J.—The petitioner/tenant are aggrieved by the order of the appellate authority, Ludhiana dated 10.8.1983 allowing appeal of the respondent-landlady and directing them to vacate the premises and hand over the possession to the landlady. The respondent had let out two shops on a monthly rent of Rs. 800/- to the petitioner. She had filed an application for eviction of the petitioners on various grounds which did not find favour with the trial Court. The Rent Controller, therefore, dismissed her petition vide order dated 30.1.1981. One of the grounds for eviction was that the tenant had materially impaired the value and utility of the property by breaking the wall between the two shops and making a door therein. The following allegations had been specifically made in para 4(A) of the application for eviction :

"i) that the respondents had broken the walls of the two shops and opened a door therein destroying the separateness of the two shops and had in the process weakened the partition wall;

ii) that the respondent had removed the shutter of one of the two shops and fixed in its place a lighter shutter;

iii) that the respondents had caused damage to the demised premises by fire resulting in damage to the lintel."

It was undisputed that the wall between two shops was 9" thick and was a load bearing wall. It was also undisputed that opening of 3''x5'' had been made in the said wall by breaking it. After the application for eviction had been filed the tenant had closed that opening by 4-1/2" thick brick wall. The landlady in support of her contention that the aforesaid breaking of the wall had resulted in weakening of the wall between the two shops and had thereby materially impaired its value and utility had also furnished a report of an expert to that effect. The tenant, on the other hand, had contended that the said opening in the wall had not resulted in the weakening of the partition wall and he also filed a report from another expert to that effect. The Rent Controller accepted the plea of the tenant and recorded the finding that the puncturing of the wall did not result in weakening of the property as the two shops were cemented and pucca ones. He further observed that even otherwise the opening had been filled by a 4-1/2" thick wall and as such whatsoever weakness had arisen, stood rectified. He also accepted the contention of the tenant that the said opening had been made by the fire brigade men who had come to put out the fire which had broken out in these shops.

The respondent-landlady preferred an appeal before the appellate authority, Ludhiana and challenged the findings of the trial Court on this issue. The lower appellate Court after going through the evidence on record allowed the appeal and accepted the claim of the landlady that by breaking the load bearing wall between the two shops and making a door therein, the tenant had materially impaired the value and utility of the property. This action had not only weakened the load bearing wall but had also resulted in reduction of its utility as the two shops could not be let out as two separate units. He also rejected the claim of the tenant that the opening in the wall had been necessitated to put out the fire in the premises on the ground that it was merely an after-thought. It was observed that not only no such claim had been made in the written statement but it was also at variance with the facts narrated in the FIR wherein it had been stated that the fire brigade people had effected entry by breaking open the shutter of one of the two shops while the shutter of other shop was held open. It is against these findings that the present revision petition has been filed.

Before me Ms. Harsh Rekha, Advocate appeared on behalf of the petitioners. She reiterated her arguments advanced before the lower appellate Court. According to her merely because the tenant had failed to mention in the written statement that the opening in the partition wall between the two shops had been necessitated to put out the fire by the fire brigade men could not absolve the landlady to prove her case. According to her the onus lay on the landlady to prove that the partition wall had been punctured by the tenant. For this she placed reliance on the following authorities :

Ram Dhan Sharma v. Shri Bishan Sarup Mittal and another, 1994(1) P.L.R. 492 : 1994(1) RCR 462 (P&H)

Dev Dutt Verma v. Ajit Singh & others 1965 CLJ 341 P&H

Atma Ram and others v. Kanwar Mahinder Singh and others 1976 P.L.R. 410.

She further pleaded that merely making a small hole in the wall or small alteration did not tantamount to materially impairing the value or utility of the property. For this purpose she placed reliance on the following authorities :

L.K.K. Gafoor v. M.T. Lakshmana Mudaliar (died) and another 1979(2) R.L.R. 482

Charan Singh v. Shrimati Ananti & others 1966 P.L.R. 780

Gobind Ram v. Shrimati Kushalya Rani & others 1982(1) RLR 288 : 1981(2) RCR 622 (P&H)

I have gone through the record and have perused the orders of the authorities below. I have also gone through the authorities relied upon by the counsel for the petitioner. I am in agreement with the findings recorded by the lower appellate Court and see no ground to interfere with the same. It has been correctly stated that the objections raised in pare 4(A) of the application, which have already been reproduced in the earlier part of this order, were not specifically denied by the tenant in his written statement. The tenants had very cleverly filed a very evasive reply. If the wall had not been broken by the tenants themselves but it had been done by the fire brigade men, it would have been their first plea in the written statement. On the other hand, as correctly pointed out by the lower appellate authority, in the case reported to the police in the FIR it had been stated that the entry in the shop had been made by breaking open the shutter of the shop. It, therefore, stands proved that the common partition wall between the two shops had been broken by the tenant and the door made therein. I am also in agreement with the conclusion of the lower appellate Court that by breaking the 9" thick and load bearing partition wall, the tenants had materially impaired the value of the property. It cannot be said that when a hole is made in the load bearing wall, the strength of the property is not weakened. Further the two shops being two separate independent units could have been put to two different uses and could have been let out separately. By connecting the two by means of a door in the common wall even the value and utility of the property stood impaired. It has been correctly pointed out by the lower appellate Court that the default had to be seen on account of opening made in the common wall and it was of no consequence that subsequently the same had been filled up by the tenant. There is, thus, no merit in the contentions raised on behalf of the petitioners.

Before concluding a reference may be made to the authorities relied upon by the petitioners. the decision of this Court in Ram Dhan Sharma''s case (supra) has no bearing on the present case. In that case the tenant had created a partnership and on that basis a suit for eviction had been filed by the landlady claiming that by admitting a partner the tenanted property had been sublet. Although in the written statement, the creation of partnership had been admitted but it was not specifically stated that such an action did not tantamount to subletting. When this plea was sought to be raised during the course of arguments, the landlady objected that the petitioner could not raise this plea since it had not been raised in the written statement. It was held that such a plea could be raised. It is evident that what was sought to be raised was merely a legal argument based on the admitted factual position in the written statement. In the present case a new fact is sought to be incorporated which was never raised in the written statement. In fact in the written statement it was not even denied that the tenant had himself broken the wall and made a door in the common wall. Further the plea of the wall having been broken by the fire brigade men had been found to be false.

The cases of Atma Ram & others (supra) and Dev Dutt Verma (supra) also have no application to the present case. It is nobody''s case that the landlady is absolved from proving her case. In the present case there is no dispute about the fact that the common wall between the two shops had been broken and a door made therein. It has further been proved that the said opening had been made by the tenant. This conclusion is not based on any wrong defence put up by the tenant but on a finding of fact based on evidence.

The case of L.K.K. Gafoor (supra) is also on different facts. The issue involved in that case was whether the legal heirs of the landlord were entitled to pursue the case of eviction on the ground of personal need filed by the landlord during his life time. The case of Charan Singh (supra) also does not support the case of petitioner either. In that case it had been found that some small holes were made in the adjacent wall of two shops which could be restored by spending about Rs. 15 to 20. This was held to be not a material impairment. However, this court was not dealing with a case where a big opening was made in a common load bearing wall. Certainly if a wall is not load bearing, making of small holes for proper enjoyment of the property would not tantamount to material impairment. The same cannot be said about breaking a load bearing wall and fixing a door therein. Similarly, the case of Gobind Ram (supra) is of no assistance to the petitioner as in that case also small holes were made in the wall for placing wooden batons to have a ''parchhati''. It was held that this could easily be repaired at a very nominal cost and, therefore, it did not tantamount to any material impairment to the value or utility of the disputed property.

In the light of aforesaid discussion, I find no merit in this revision petition which is hereby dismissed. However, there shall be no order as to costs.

Revision dismissed.