Kartaro Devi v. Anil Sharma

Mr. Subhash Sharma, learned counsel for the landlord has supported the judgment passed by learned Appellate Authority. According to him, since the tenant has not objected to the exhibiting of the photographs, she is estopped - 4 - from assailing the same now. According to him, the photographs were admissible in evidence. As per him, the tenant has made material additions and alterations, which have impaired materially the value or utility of the building. According to Mr. Subhash Sharma, by extension of the front portion of the shop and by putting iron shutter in the front portion the tenant has changed the basic structure of the shop. The tenant has also constructed a parchhatti. He lastly contended that the tenant has laid stones and tiles on floor which has added weight to the building. According to him, the building has developed cracks.

I have heard learned counsel for the parties and gone through the pleadings and evidence carefully.

Landlord has appeared as PW-2. According to him, the premises were let out to the tenant at the rate of ` 400/- per annum. The tenant has carried out construction work. The tenant has raised the roof by 3 feet and has put tiles and cement on the floor. She has extended the roof by 1 foot and has constructed parchhatti. She has also made wooden partition. She has affixed shutter instead of wooden planks. The building is old and it has developed cracks. He has filed complaint with Municipal Corporation, Shimla vide Ex.PW-2/A. He has proved on record the rough sketch, i.e. Ex.PW-2/B. According to him, the tenant has not sought any permission - 5 - either from him or from the Municipal Corporation, Shimla while undertaking the construction activities. He could not disclose in cross-examination what action has been taken by the Municipal Corporation, Shimla on Ex.PW-2/A. He has also admitted in cross-examination that no report was lodged with the police about the construction raised by the tenant. He has denied the suggestion that the tenant has carried out white wash in the year 1999. He has denied the suggestion that the tiles and shutter were affixed prior in time. He has admitted that he is also running a Halwai shop.

PW-2/A, Jai Raj has testified that the tenant has carried out renovations, due to which cracks have developed on the rear side of the building. She has put shutter during the renovation and has also laid tiles on the floor. She has extended the shop and has also raised the same by 3 feet. He has admitted in cross-examination that the building is old and he had been seeing the same for the last about 40-42 years. He has admitted that the building falls in the territorial jurisdiction of Municipal Corporation, Shimla.

PW-1, Smt. Shashi Thakur though appeared, but has deposed that she has not brought the record since it was not summoned. According to her diary No.2372 has not been given by A.P. Branch. According to her a document is diarised at - 6 - three places, i.e. Commissioner Office, A.P. Branch and Head Office.

RW-1, Jaishe Ram has deposed that he has been seeing the building from the year 1985 and it was in the same condition. The tenant has carried out white wash in the shop in the year 1999 and also changed the showcase and has not carried out any other renovation. In cross-examination, he has admitted that the tenant has put shutter. Volunteered, it was in existence prior in time. He has denied the suggestion that the shutter was replaced in 1999. He has also denied that the tiles were laid on the floor and roof was repaired by the tenant. He has denied the suggestion that the shop of the tenant was 3 feet ahead of other shops. He has deposed that photographs Ex.PW- 2/C-15 to Ex.PW-2/C-17 are of the same shop.

RW-2, Sandeep Kumar is General Attorney of the tenant. He has proved on record the copy of General Power of Attorney, Ex.RW-2/A. According to him, in the year 1999 showcase was constructed and furniture was also made. As per him, white washing was also done. The shutter was in existence for the last 10-15 years in the shop. Windows on the rear portion of the shop were also repaired. Kota stone has been laid on the floor which was 10-15 years old. In the ceiling cement sheets were used, which are same as used by the landlord. No additions and alterations were carried out. The basic structure - 7 - of the building remains the same. The tenant has not received any notice from the Municipal Corporation, Shimla. In cross- examination he deposed that the shop is extended, but later on said he did not know when it was extended.

This is the oral evidence led by the parties. The landlord has also got exhibited the photographs Ex.PW-2/C-1 to Ex.PW-2/C-20 with negatives Ex.PW-2/C-21 to Ex.PW-2/C-22 and has also proved the report made to the Municipal Corporation, Shimla vide Ex.PW-2/A.

The learned Rent Controller has returned the findings that the landlord has failed to prove any addition or alteration being carried out by the tenant, which could materially impair the value or utility of the premises. According to him, no expert evidence has been produced by the landlord to prove that the tenant has carried out construction, which could materially impair the value of the premises. According to him, since the photographer has not been produced, the photographs Ex.PW- 2/C-1 to Ex.PW-2/C-20 could not be taken into consideration.

However, the learned appellate court has relied upon the photographs Ex.PW-2/C-15 to Ex.PW-2/C-17. The Court is of the considered view that it was necessary for the landlord to have examined the photographer. The landlord has also moved an application under Order 41 Rule 27 of the Code of Civil Procedure for summoning the photographer, who took - 8 - the photograph, the official from Municipal Corporation, Shimla for proving the complaint made by the complainant and the expert, i.e. an Engineer who could examine and give report qua unauthorized construction work of additions and alterations done by the tenant. This application was rejected by the learned Appellate Authority. The mere filing of application under Order 41 Rule 27 of the Code of Civil Procedure makes it abundantly clear that the landlord has tried to fill up the lacunae by making a prayer for summoning the photographer who has taken the photographs, the official from the Municipal Corporation, Shimla to prove the complaint Ex.PW-2/A and also an expert to prove whether the repairs undertaken by the tenant have materially impaired the value or utility of the building.

It was necessary, as noticed above, for the landlord to prove the photographs by summoning the photographer, who has clicked the photographs; otherwise, such photographs were not admissible in evidence. It was also necessary for the landlord to prove the complaint Ex.PW-2/A since the sole question to be decided by both the Courts below was whether the tenant has undertaken the repairs which had materially impaired the value or utility of the building. It was also necessary for him to examine an expert to see the nature of construction carried out by the tenant. He, being an expert, could give opinion whether the construction carried out by the - 9 - tenant has altered the basis structure or not. The learned Appellate Authority though has dismissed the application preferred under Order 41 Rule 27 of the Code of Civil Procedure, but, has relied upon photographs Ex.PW-2/C-15 to Ex. PW-2/C-17.

Mr. Subhash Sharma, learned counsel for the landlord has also relied upon photographs Ex.PW-2/C-15 to Ex.PW-2/C-17. What can be seen from these photographs is that ceiling was being changed but it could not be made out from these photographs that parchatti has been constructed. Wooden partition is also not visible. What can be seen from the photographs is that the iron shutter has been fixed in place of wooden planks. The picture does not show that any tiles or stones have been laid recently.

Merely changing the ceiling of the shop cannot be said to have materially impaired the value or utility of the building. The putting up of the stones and tiles on a katcha portion will not also amount to material addition or alteration which could impair the value or utility of the building. There is no evidence as far as the wooden partition is concerned. Even if there had been wooden partition, this being temporary structure could always be removed. The putting up of the iron shutter in place of wooden planks will also not amount to material additions and alterations, which could have materially impaired - 10 - the value or utility of the premises. This being a temporary structure could always be removed. What has to be seen is whether the construction carried out by the tenant has changed the basic structure of the building or not. In the instant case, the changing of ceiling, fixing of wooden partition, fixing tiles and stones and changing the shutter will not change the basic structure of the building. It is not every addition or alteration, but only that addition or alteration, which impairs the value or utility of the building, will constitute sufficient cause for eviction of the tenant, that too, if carried out without the consent of the landlord.

The expression ‘material alteration’ has been explained in detail by their Lordships of the Hon’ble Supreme Court in Om Prakash Versus Amar Singh and Others, (1987) 1 SCC 458 as under (paras 3, 5, 6 and 7):- “There is no dispute that the demised premises is subject to the provisions of the U.P. Cantonment Rent Control Act 1952 (hereinafter referred to as the Act). Section 14 of the Act imposes restriction on the landlords' right to file suit for eviction of a tenant from any accommodation except on one or more of the grounds specified therein. Section 14(c) relevant for the purposes of this case reads as under : "14: Restrictions on eviction- No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his - 11 - eviction from any accommodation except on one or more of the following grounds, namely; c) that the tenant 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 accommodation or is likely substantially to diminish its value; " The Act does not define either the word 'materially' or the word 'altered'.

In Waryam Singh Versus Baldev Singh, (2003) 1 SCC 59, their Lordships of the Hon’ble Supreme Court have held - 15 - that enclosing verandah by constructing walls and placing a rolling shutter in front, in themselves not sufficient to justify inference that value or utility has been impaired. Their Lordships have held as under (paras 11, 12, 15 and 16):- “Mr. Walia next relied upon the case of Narain Singh v. Bakson Laboratories. In that case, the tenant had enclosed the verandah on the front and back side of the building and had opened a door by breaking the wall of the room. It was held that this diminished the value of the premises. With great respect to the learned Judges concerned, we find ourselves unable to accept this proposition. As stated above it is not every addition or alteration which could be said to materially impair value or utility. It has to be proved that the value or utility has been materially impaired.

A Coordinate Bench of this Court in Som Nath Versus Gian Chand, 2010(3) Shim. LC 355 has held that it is necessary for the landlord to examine an expert so as to prove that by the alleged acts of the tenant the value and utility of the premises has been impaired. In this case, according to the landlord, the tenant has broken the out door plate, chajja and window panes, one corner, original door was closed and on the other side the door was opened. The learned single Judge has also noticed variance between the pleadings and the proof on the point of material impairment projected by the landlord. The learned single Judge has held as under (para 14):-

On issue No.2 of material impairment the pleadings of the landlord are in para 18 (5) of the petition where he has pleaded that tenant has damaged the premises by breaking the projection and the glass panes of the windows and thus has caused the damage to the premises. In other words, the pleaded case of the landlord for material impairment is breaking of projection and window glass panes. In evidence the landlord has stated that the tenant has broken the out door plate, chajja and window panes, one corner, original door - 18 - was closed and on the other side the door was opened. It was suggested to RW-1 Som Nath tenant in cross-examination that he has removed one side steps of the premises. PW-2, PW-3 the witnesses of the landlord have stated nothing about the impairment of the premises. The landlord himself has not stated in his statement that acts of the tenant have impaired the value and utility of the premises. The landlord has not examined any expert so as to prove that by the alleged acts of the tenant the value and utility of the premises has been impaired. There is variance between the pleadings and the proof on the point of material impairment projected by the landlord. The landlord has tried to improve his case on material impairment on every step. The learned Appellate Authority has not considered the variation between the pleadings and the proof on the point of material impairment nor he has recorded a specific finding that the alleged acts of the tenant have materially impaired the value and utility of the premises. Therefore, the findings recorded by the two courts below on issue No.2 are liable to be set-aside.

Mr. Bhupender Gupta, learned Senior Advocate has also relied upon G. Natrajan versus P. Thomdavarayan, 1969 RCR 733 wherein the learned single Judge of Madras High Court has held that mere rendering of subjective opinion may not be of any avail unless such opinion is backed by expert evidence. The landlord must prove by examining an expert witness that the act of the tenant amounts the building’s utility being impaired or its - 19 - value being diminished. The learned single Judge has held as under (para 4):- “While considering the content of section 10(2)(iii) of Act XVIII of 1960, it is necessary that certain objective standards have to be set, before a tribunal or Court engaged in the adjudication of rights of parties decisively concluded that the act complained of is or has to be characterised as one impairing materially the value or utility of the building. Mere rendering of substantive opinion may not be of any avail unless such opinion is backed by expert evidence. The landlord in this case did not examine any expert to prove that the drilling of a hole in the terrace or the cutting of a portion of the parapet wall tantamounts to the building’s utility being impaired or its value being diminished. What is contemplated in the section is the lowering of the economic value of the building and not a possible mental inconvenience suffered subjectively by the landlord on a prima facie examination of the building. That such is the intention of the Legislature has been held by a Division Bench of our High Court in Govindaswami Naidu v. Pushpalammal, while considering a similar provision in the Madras Buildings (Lease and Rent Control) Act (XV of 1946) Rajamannar C.J., speaking for the Bench, observed as follow :

It is obvious that every act of waste will not entitle the landlord to obtain an order of eviction under the provisions with which we are now concerned. It is equally clear that it cannot be laid down as a rule of law that a demolition of any wall in a building must necessarily be deemed to be an act of waste which is likely to impair materially the value or utility of the building.

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Mr. Subhash Sharma, learned counsel for the landlord has relied upon Vipin Kumar Versus Roshan Lal Anand and Others, (1993) 2 SCC 614. Their Lordships of Hon’ble Supreme Court in this judgment have held that where the act of tenant impairing materially the value or utility of the building, the burden is on the tenant and thereafter the onus shifts on the landlord to rebut. Their Lordships of the Hon’ble Supreme Court have held as under (para 2):- “The question, therefore, is whether the finding of courts below which concurrently found that the appellant had constructed a wall in the verandah which materially affected the value or utility of the shop is vitiated by law. The building consists of two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate on the evidence and upset that finding.

Mr. Subhash Sharma, has also relied upon Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004, SC 4082. According to him, since the tenant has not objected to the photographs marked and exhibited, the same are admissible in evidence.

A Division Bench of Gujarat High Court in State of Gujarat v. Bharat alias Bhupendra, 1991 Cri. L.J. 978 has held that the photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record. The Division Bench has further held that even when rightly admitted in evidence, their evidentiary value is almost nil. Their Lordships have held as under (para 13):- “The learned Additional Sessions Judge has given too much importance to photographs of place of incident, Exhs. 15, 16, 18, 19 and 20. These photographs do not show any electric pole in the street. It surpasses one’s imagination as to how these photographs could have been produced in the cross- examination of prosecution witnesses. In cross- - 24 - examination of witness Rasiklal, Circle Inspector, two photographs have been produced. Other three photographs have been produced in cross- examination of Nautam Bhai (Exh.17).

Moreover, whether the photograph is the correct reproduce, will depend on the correctness of lenses, state of weather, skill of photographer, accuracy of angle etc. In the instant case, as notice above, the person who has taken the photographs has not been examined, and thus, even though the photographs were exhibited, their evidentiary value is almost nil.

Their Lordships of Hon’ble Supreme Court in Life Insurance Corporation of India and Another Versus Ram Pal Singh Bisen, (2010) 4 SCC 491 have held that mere filing or exhibiting of a document in court does not amount to proof of its contents. Admission of a document in court may amount to admission of its contents but not their truth. Their Lordships of the Hon’ble Supreme Court have held as under (paras 12, 22, 25, 27 and 31):- “To prove his averments in the suit, respondent-plaintiff tendered himself in the witness box and proved his case as also documents filed in support thereof. Surprisingly enough, appellants herein did not lead any oral evidence, yet some of the documents filed by appellants were exhibited, probably under misconception of law that they were not disputed in Court by respondent. It is also necessary to mention here that appellants had also not served any notice of admission or denial of documents on the respondent during trial as contemplated under Order 12 Rule 2 of the Code of Civil Procedure (for short “CPC”). - 26 - Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits.

No other point was urged. - 27 -