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Judgment
Rakesh Tiwari, J.
Heard counsel for the parties and perused the record.
This writ petition has been filed for quashing the order dated 2142010 passed by the District Judge, Firozabad in SCC Revision No. 3 of 2010 and SCC Revision No. 4 of 2010 and also for quashing the judgment and order dated 1732010 passed by the Judge Small Cause Court/ Civil Judge (JD), Shikohabad district Firozabad in SCC suit no. 9 of 1995.
The facts as enumerated from the record are that Sita Ram Tomar, father of the petitioners was tenant in the shop in dispute being shop no. 389 on monthly rent of Rs.25/. After his death tenancy devolved upon two sons namely Ram Manohar Tomar and Shyam Manohar Tomar and as well as his daughter Smt. Suman Tomar who are petitioners in the instant writ petition. The case of the plaintiff in the court below was that the shop in question was quite old and roof of the shop was covered by Kardi and mud. The petitioners have placed bricks over the roof and plastered the same by cement making pucca construction; that the western wall of the first part of the shop was replaced by new Almirahs and that the aforesaid change has resulted into substantial alteration in the shop in dispute by which not only roof has not only been damaged but they have substantially weaken the construction.
The landlord served notice dated 981985 determining the tenancy that the tenant neither vacated the shop nor paid the rent and thereafter the plaintiff compelled the landlord to file SCC suit no. 9 of 1995. The suit was contested by the petitioner defendants by filing written statement as well as by filing additional written statements. On an application moved by the plaintiff / landlord, Amin was directed to inspect the disputed shop in question and to submit his report. Consequently amin submitted his report on 2721996 after inspection which is appended as Annexure No. 5 to the writ petition.
By judgment and decree dated 1732010 the court awarded damage @ Rs.25/ per month during the pendency of suit till delivery of possession. The revision preferred by the petitioners challenging the validity and correctness of the judgment and decree dated 1732010 was also dismissed by the revisional court order dated 2142010 holding that the rate of damage during the pendency of the suit till delivery of possession shall be calculated @ Rs.250/ p.m.
The aforesaid impugned judgment and order of the courts below are assailed by the petitioners in the writ petition on the ground that SCC court has committed manifest error of law in holding that the shop in dispute was not determined on the ground of material alteration in shop in question. Trial court has illegally held that the notice was illegal and the tenancy was determined rightly and suit was maintainable. It is stated that the findings of the court below on issue no. 2 with regard to removal of the wall supporting the roof from length to width is perverse and based on surmises and conjectures.
It is also stated that the certified copy of the expert report filed by the plaintiff along with map and affidavit of Architect Shashi Bhushan Shiromani was inadmissible evidence as it was not approved by the plaintiff as such any finding on the basis of said report was perverse and illegal. He also submitted that the findings of the court below that only four walls were existing when letting was made and from the report of the Amin it is evident that walls are not there, is perverse.
As regards material alteration it is further submitted that the findings of the courts below on for laying of bricks on the mud roof and cementing after plastering mud roof from underneath the bricks after removing the mud over the roof as well as removal of the two walls amounts to substantial alteration for which no permission in writing was taken by the tenant is required as required under the law. It is also argued that even otherwise as there was no material alteration in removal of portion of southern and western walls and fixing almirahs therein, the value and utility of the building was not diminished as no such alteration has been made; that almirahs are existing in the wall since before according to him. It has come in the report of the advocate commissioner, that southern eastern and western walls are filled by bricks and plastered and only a small portion remained open in the shop which served the purpose of "Ala" hence it cannot be concluded further also that the value and utility of the building in question has been diminished. It is lastly argued that from perusal of the Amin report filed in case no. 23 of 1984, it is evident that there is no mention of existing almirahs in the wall. It only speaks of a portion of wall having been remained which was not being used as almirah.
As regards the order and judgment of the revisional court is concerned, it is stated that the revisional court has also committed a manifest error of law in recording a finding on the basis of a wrong interpretation of the Amin''s report dated 2721996. It is further stated that by no stretch of imagination it can be concluded from the report that the petitioner / tenants have effected any material alteration in the building which has deface the building by which the value and utility of the shop has been diminished. The petitioners have also challenged the findings of the revisional court on the ground that by awarding damage @ Rs.250/ instead of Rs.25/ manifest error law has been committed.
Per contra, counsel for the respondents has argued that the petitioners have built almirahs in southern western wall and laid down bricks on the mud roof and thereafter plastered it by cementing it into a pucca roof. He submitted that in his report the Amin has found that the roof is supported by two two approach side walls. It is submitted that as respondent had demolished two walls, the roof of the sagged in the middle as there was no support of beams to support the dead weight of the pucca roof. The wooden was found bent. Hence utility of the shop had not only decreased but also become unsafe. From the Amin''s report, he has argued that not only roof but also door and window were also bent. For ready reference, report of the Amin is quoted below :
After hearing counsel for the parties as well as perusing the report of Amin it is apparently clear that the shop is more than 60 years old and was built by thick wooden beams which had rotten. It is also apparent that the roof had sagged due to load of bricks for which there was no supporting beams after removal of the two walls and the rotten wooden beams. The map appended with the report also shows that certain almirahs have been built by removing the wall which had lateron taken with bricks and plastered leaving a space for "Ala". This shows that almirahs have been made and wall had been filled by bricks and cemented plaster. From the report of the Amin both the courts below had found material alteration made by the tenant.
In the admitted facts and circumstances of the case that the petitioners have not taken any written permission from the landlord to lay down pucca roof construction and being damaged the accommodation in dispute by removal of kari or wooden beams, removal of mud roof from beneath and making or cupboard in the wall by removing of bricks and thereafter filling it up. Hence his case squarely falls under section 16(c)(d) of the U.P. Act No. XIII of 1972. The constructions have become week by the conduct of the petitioners therefore it would be apparent that there has been not only material alteration in the disputed shop but it has been damaged and lowered its utility.
For the reasons stated above, no interference is called for in the findings recorded by the court below. The writ petition is accordingly dismissed.