Smt. Kamla devi vs Shri T.L. Jasra and others

M.S. Liberhan, J.—Kamk Devi landlady sought the ejectment of the Respondent-tenant on the grounds viz. non-payment of rent from 1.8.1976 to 31.1.1977; material impairment of the value and utility of the building on account of putting of wooden planks on three sides of the verandah and roofing the same with asbestos sheets; by conversion of a conventional latrine into flush latrine, by construction of a saptic tank in the open space near the kitchen of a co-tenant; and for causing nuisance to the co-tenants and the landlady Petitioner on account of emittance of foul smell from the saptic tank

The Respondent-tenant denined the claim made. Rs. 300/- was tendered as arrears of rent from 1.8.1976 to 31.1.1977 at the rate of Rs. 70/- per month after deducting Rs. 50/- from the rent for the month of October, 1976 on account of white washing and annual repairs; Rs. 8/- by way of interest and Rs. 20/- by way of costs assessed by the Court. The landlady accepted Rs. 398/- under protest averring that the tender was valid and short.

The learned Rent Controller found that there was no impairment in the value and utility of the building as averred by the landlady nor any nuisance had been caused by the tenant. However, the tender was found to be short. Consequently, ejectment of the tenant was ordered.

The tenant challenged the order of the Rent Controller in appeal. The learned Appellate Authority reversed the finding with respect to the short tender, inter alia, holding that though the claim with respect to Rs. 50/- as the amount claimed for repairs and maintenance cannot be sustained, still as the amount tendered was in excess of the rent due because rent for the months of December 1976 and January 1977 had not fallen due on 11.1.1976 when the application for ejectment was filed, consequently, the excess amount could be adjusted towards the shortfall in the amount due as arrears of rent. With these observations, the finding was reversed with respect to the short tender. The findings of there being no material impairment of value and utility as well as nuisance were affirmed.

The learned Counsel for the Petitioner contends that the tender was short. His only contention is that the fender is invalid as the tenant had deducted an amount of Rs. 50/- from the rent for the month of October 1976 on account of white washing and annual repairs. Counsel for the Respondent controverts the submission aid contends that the findings of the learned Appellate Authority are unassailable. The short fall of Rs. 50/- in the tender can be made good from the amount paid as rent for the month of December 1976 and January 1977 which had not become due. The learned Counsel further relies upon a Division Bench judgment of this Court reported in Pritam Singh v. Smt Sibo (1980) P.L.R. 577. The learned Counsel for the Petitioner has not been able to successfully controvert the submissions made by the learned Counsel for the Respondent. Nothing has been urged to take a contrary view. In view of this. I affirm the finding of the learned Appellate Authority that Rs. 50/- the shortfall in the rent tendered would be adjusted cut of the amount paid as rent for December 1976 and January 1977 which was not due on the date of application and thus the tender being valid, no ejectment can be ordered.

The learned Counsel for the Petitioner vehemently contends that impairment of the value and utility of the building has to be seen from the landlay''s point of view. He contends that closing of the verandah by putting wooden planks on its three sides and covering the roof with asbestos sheets obstructs light and air to a portion of the building in which the landlady is residing. Thus the acts attributed to the tenant has impaired materially the value and utility of the building. It is further contended that converting the Ia(Sic) into the flush system and to make it work by providing a saptic tank near the building in itself amounts to an act, impairing materially the value and utility of the building, inasmuch as the saptic tank emits foul smell which further causes nuisance to the neigbours/co-tenants.

In order to support his submission the learned Counsel for the Petitioner, relies on Narain Singh v. Bakson Laboratories etc. 198(Sic) (2) R.C.R. 237, Sha Nirbhayala Bahadurmal v. Krishna Rao M. Nikhan 1982 (2) R.C.R. 147, M/s. Nand Mal Durga Dass v. Lekh Raj 1981 (1) R.C.R. 291.

The learned Counsel has further taken me through the statement of the landlady who is the only witness who has been examined on behalf of the Petitioner in order to prove the acts committed by the tenant which allegedly amount to impairing the value and utility of the building.

The learned Counsel for the Respondent refutes the submission and contends that the alleged act of temporarily putting the wooden planks in the verandah and even putting the asbesto sheets on them neither amounts to a material change of permanent nature nor it structurally changes the nature of the premises in dispute. It does rot impair materially either the value or utility of the building. Similarly, it is further submitted, that conversion of old bygone system of latrine into the modern system of flush does not impair materially the value or utility of the building. It is contended that except the self serving statement of the landlady, there is no evidence on the record to show that the acts attributed either impaired materially the value or utility of the building. Nothing has been pointed out how the acts attributed to the tenant materially effect the value or utility of the building No expert has been examined. The self serving statement of the landlady-Petitioner cannot be relied upon. Material impairment of the value or utility of the building has to be seen from the point of view of an ordinary prudent person and not of an extraordinary sensitive person. It is contended that ''materially'' means substantially and material impairment means an act which would amount to impairment in the value or utility substantially. Mere minor adjustments to use the tenament comfortably by the tenant does not amount to impairing materially the value or utility of the building. In order to support his contention, the learned Counsel for the Respondent relies upon Om Prakash Vs. Amar Singh and Others, , Chatar Sain v. Bishan Lal and Ors. (1976) 78 P.L.R. 174, M/s. Parkash Chand Harnam Singh v. Shri Gian Chand (1979) 81 P.L.R. 196. There is no dispute with the law laid down in the judgments cited but it has to be judged in each and every case whether the acts attributed, in the facts and circumstances of each case, amount to materially impairing the value or utility of the building.

In the case in hand, the learned Rent Controller found, after going through the oral as well as documentary evidence produced by the landlady-Petitioner, that the acts attributed to the tenant, i.e. of covering the verandah by putting temporary wooden planks and roofing them by asbesto sheets, are not of such a nature that would either materially impair the value or utility of the building. The said finding was never challenged before the Appellate Authority by means of any cross-objections by the landlady. Even otherwise also, there is no evidence on the record except the self-serving statement of the landlady that such temporary arrangement of putting wooden planks in or around the opening of varandah would amount to any material alteration much less structual alteration. The tenant has a right to use the verandah to the best of his advantage. He can use sun breaker in the verandah and it cannot be said that flow of air and light would be obstructed to the landlady in any manner. The temporary alteration of putting wooden planks and asbesto sheet in the verandah, can be removed at a cost of Rs. 10/- or Rs. 15/-. It has not been shown how this act of the tenant has impaired the value or utility, much less materially, of the demised premises. It has not been shown by any convincing evidence on record that the acts attributed had hindered the light or air of the premises in occupation of the landlady.

In view of my above observations and for the reasons recorded by the authorities below, I affirm the finding that putting of wooden planks in the verandah as well as asbesto sheets on them in place of roof would not amount to an act materially impairing either the value or utility of the building.

The learned Counsel for the Petitioner has not been able to advance any substantial reason to hold that construction of flush latrine instead of old by-gone system of utilising the services of non-available scavenger to clean dry latrines would amount to impairment of the value of the building. In my considered view it would be otherwise. Undisputedly the demised premises have been rented out for residential purpose. The tenant or the landlady or any person of ordinary prudence will consider the availablity of flush system in a residential house as an amenity and not a hardship in the building. Neither any co-tenant nor any other person from the neighbourhood has been examined with respect to emission of foul smell from the saptic tank causing nuisance. No notice has been served on the landlady by any person or none has been served on the landlady by any person or none has been produced. Hence it would be reasonable to infer against the landlady that the saptic tank does not give any foul smell so as to cause nuisance. The contention regarding the construction of the saptic lank and conversion of the old type latrine to that of flush latrine has been noted only to be noted and rejected.

In view of above observations of mine, I find no force in the revision. The same is dismissed with no order as to costs.