M/s Bhatia Cloth Mills, Industrial Area, Ludhiana vs Shri Vasdev

J.S. Sekhon, J.—The tenant has directed this revision petition u/s 15 (5) of the East Punjab Rent Restriction Act, 1949 (hereinafter referred to as the ''Act'') against the order dated 3.3.1980 of the learned Appellate Authority, Additional Distrct Judge Ludhiana, affirming the order of the Rent Controller qua ejectment of the tenant on the ground of having materially impaired the value and utility of the demised premises

In brief, the facts relevant for the disposal of this revision petition are that Shri Vasdev, landlord of the factory premises located in plot No. 196, Industrial Area, Ludhiana, had rented out one machinery hall measuring 36'' x 21'' along with one electric moter of 5 H.P, patta, pulleys, shaft, iron girders, ball bearing besides one office room measuring 10'' x 12'' to M/s Bhatia Cloth Mills at a monthly rent of Rs. 2000/-The landlord sought ejectment of the tenant on the ground of non payment of rent with effect from 1.5.1971 and on the ground of tenant materially impairing the value and utility of the building by constructing two parchhatis in the room after digging two holes in the wall. He also alleged that one big hole was dug in the hall of the room. This application was resisted by the tenant by tendering the arrears of rent etc. on the first date of hearing. On merits it was alleged that the parchhatis etc. were already in existence from the very inception of the tenancy. In replication filed by the landlord, further allegation was levelled against the tenant of having installed one 8 H. P. oil engine in the main hall besides digging another role in the wall for serving as outlet for the exhaust pipe of the oil engine. It was further contended that the working of the oil engine was also causing damage to the premises in dispute and had materially impaired its value and utility.

The learned Rent Controller ordered the ejectment of the tenant from the premises in dispute on the ground of material impairment in the value and utility of the building due to construction of the above referred parchhatis and digging of holes etc. The learned Appellate Authority vide its impugned order also confirmed the above referred findings of the learned Rent Controller.

Mr. G. C Garg, learned Counsel for the Petitioner contended that all the above referred construction of parchhatis after digging holes or installation of an oil engine even if assumed to have been done by the tenant, was not sufficient for holding that it had resulted in impairing the value and utility of the building which was let out for running a factory and an office. Reliance in this regard has been placed on the decision of this High Court in Sucha Singh Kabari v. Brij Lal 1980 (1) R L. R. 124., Gobind Ram v. Shrimati Kaushalya Rani 1982 (1) R.L.R 288., Roshan Lal v. Dharam Pal 1984 (2) R.C.R 421., Om Prakash Vs. Amar Singh and Others, ., and Brijandra Nath Bhargava and Anr. v. Harsh Wardhan 1998 (l) R. L R. 228.

Shri M. L. Sarin, Senior Advocate appearing on behalf of the landlord on the other hand raised preliminary objection about limited scope of this Court while exercising jurisdiction on revisional side. He further maintained that the concurrent findings of both the lower courts are supported from the observation of this High Court in Kartar Singh v. Kesar Singh (1979) 81 P L R 750 and Om Pal v. Shri Anand Swarup (1980) 82 P. L R 11 : 1980 (2) Rent C. J. 729.

The law is well settled on the point that where finding of fact arrived at by the lower courts by omitting to consider material evidence as well as drawing wrong inferences, the High Court on revisional side had ample jurisdiction to interfere with such findings. In the present case also, the learned coursel for the Petitioner had not assailed the finding of the lower courts on facts but had contended that all these alleged structures even if installed or made by the tenant would not amount to materially impairing the value and utility of the building as envisaged u/s 13 (2) (iii) of the Act. The findings of the Supreme Court in Brijandra Nath Bharagva and Anr. v. Harsh Wardhan and others'' case can be safely referred in this regard In that case, it was held that the Supreme Court, in appeal, can go into finding of fact in those cases where the lower courts had omitted to, deal with material evidence and drawn wrong inference. It was further held that construction of wooden cabin and balcony on the roof of such cabin and a wooden stair-case for going to the balcony through such cabin in a show room would not amount to material alteration being only a temporary structure.

Similar view was earlier taken by Supreme Court in Om Parkash case (supra). In that case the tenant had constructed a partition wall in a hall without digging any foundation in the floor of the room besides making a tin shed in the open courtyard of the building. Under these circumstances, it was held that the partition wall would not amount to making any structural change of substantial character either in the form or structure of the accommodation.

Brother J. v. Gupta, J of this Court in Roshan Lal''s case (supra) also held that the construction of three parchhatis in the room for storing hosiery goods after digging holes in the wall and putting some weight on the wall would not amount to materially impairing the value and utility of the building-especially when the building was rented out for running hosiory business.

Justice S. P. Coyal of this Court (as he then was) in Sucha Singh Kabari''s case had also taken a similar view by holding that mere construction of parchhatis after making hlocs and fixing of the shelves resulting in some damage to the walls which could be repaired at small cost cannot be said to have resulted in materially impairing the value and utility of the building.

Brother J. v. Gupta, J. of this Court in Gobind Ram''s case (supra) has again taken a similar view by holding that construction of parchhatis after digging holes in the walls to place some wooden rafters would not amount to material impairment in the value and utility of the building as such like holes are easily repairable at nominal cost. It was further held that the tenant is entitled to make small alterations for the proper enjoyment of the premises.

In the present case also, the evidence of A W. 3 Ram Murti as well as AW. 9 Tejpal clearly establish that the parchhatis are made up of wooden planks, wholly rest upon a wooden rafter inserted in the walls of the office after digging two holes. Shri Pritam Singh Garewal, A.W. 2, a retired Engineer also deposed that the holes can be filled after inserting 4/7 bricks. Similarly, the hole in the main hall meant for serving as outlet for the fans of the machines being operated through an electric motor would not amount to such impairment. The mere factum that a hole has been dug in the wall for serving as exhaust pipe of the oil engine will not amount to material impairment in the value and utility of the building especially when the building was let out for running a factory which is located in Industrial Area of ludhiana. The judicial notice can be taken of the fact that due to short supply of electricity to the Industrial Units in this part of the country, there is no option for the industrialists but to install oil engine for running their factories. In view of the factum that the building was let out for running a factory, the installation of an oil engine of 8 H P by way of alternate arrangement for running the factory whenever there is power failure cannot be said to have resulted in material impairment of the value and utility of the building. No doubt, the engine must have been installed on some pucca platform may be 6" x 4" high from the level of the floor of the main hall but that cannot be held to be a material impairment in the value and utility of the building. The finding of the Appellate Court that with the vibrations of the oil engine and sound emanating there from would result in a nuisance to the owner who is also running his factory in a portion of the same building are not sustainable as the very act of letting out a factory or shed would imply such like nuisance especially when the factory is located in an industrial area of Ludhiana.

In view of the above finding of fact, the decision of this High Court in Om Pal''s case (supra) relied upon by the learned Counsel for the Respondent, is not applicable to the facts of the present case In that case, the tenant had constructed a wooden balcony which had put additional weight on the supporting walls and thus it was held that it had resulted in substantial structural change. Similarly, the view of this Court as taken by Justice R. N. Mital, J. (as he then was) in Kartar Singh''s case are not attracted to the facts of the case in hand as in that case strucrural change related to the removal of a common wall of two shops in order to convert it into one hall besides removing of its doors and inclusion of the varandah in the shop.

For the foregoing reasons, there is no option but to conclude that the above referred alterations and installation of a diesel oil engine on the premises in dispute had not resulted in materially impairing the value and utility of the demised premises and set aside the order of the Rent Controller as well as Appellate Authority being not sustainable by accepting this Revision Petition. It is ordered accordingly, There is however, no order as to costs.