Full Judgment Text
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PETITIONER:
BRIJENDRA NATH BHARGAVA & ANR.
Vs.
RESPONDENT:
HARSH WARDHAN & ORS.
DATE OF JUDGMENT02/12/1987
BENCH:
OZA, G.L. (J)
BENCH:
OZA, G.L. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1988 AIR 293 1988 SCR (2) 124
1988 SCC (1) 454 JT 1987 (4) 538
1987 SCALE (2)1394
ACT:
Landlord- Tenant matter-Tenant’s appeal against order
of eviction on ground of material alteration made in the
premises without landlord’s permission-Under Rajasthan
Premises (Control of Rent and Eviction) Act, 1950-Section
13(1)(c) thereof.
HEADNOTE:
%
In the year 1974, the then landlords of the property in
dispute, Bhonri Lal and others, filed a suit for eviction
against the tenants appellants on the ground of bona fide
need, material alterations in the premises and default in
payment of the rent. During the pendency of the suit, the
present respondents purchased the property in 1979 and v
continued with the suit for eviction. The trial Court passed
a decree for eviction on the ground of material alterations-
construction of a wooden balcony (Dochhatti)-made in the
premises by the appellants under section 13(1)(c) of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
The decree of the trial Court was affirmed in Second Appeal
by the High Court. Aggrieved by the decision of the High
Court, the appellants appealed to this Court by special
leave.
Allowing the Appeal, the Court,
^
HELD: The first notice in the case given to the
tenants/appellants on behalf of the then landlord Bhonri Lal
was through an Advocate and there was no mention of the
objection about any construction or material alteration at
all. Another notice dated 13.8.1974, given just a little
before the filing of the suit for eviction, also did not
contain any mention of any material alteration or
construction of the balcony (Dochatti). There was a
reference to some damage to the floor of the property in
dispute in that notice, but the same was given up and not
pressed. It was, therefore, plain that if the
balcony/Dochatti, which was a wooden structure, was a
construction without the permission and consent of the
landlord, he would have made it a ground for termination of
the lease or a ground of eviction mentioned in any one of
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the two notices above-said, if not both. It was a
significant factor that in the two notices, that
construction was not mentioned as a ground. In his cross-
examination, Bhonri Lal admit-
125
ted that no notice about the balcony had been given, and
explained away the reasons therefor. [131A-D]
The present respondents purchased the property in
dispute during the pendency of the suit. The statement of
Bhonri Lal in cross-examination, showed that he had given up
his objection to the balcony, and it was also clear from his
evidence that the cost of a window, constructed in the year
1964 to give light and air to the balcony, had been borne by
the landlord himself. In the context of that evidence, it
was significant that even in the plaint it had not been
clearly stated that the balcony had been constructed in the
year 1972 as was now alleged. It was also significant that
what was now alleged-that the balcony was supported on beams
fixed in the walls and pillars fixed in the floor-was also
not alleged in the plaint at all. It was also not alleged in
the plaint as to how the structure in question which was a
wooden structure, easily removable according to the
appellants, could be said to be a material alteration or how
the same had impaired or damaged or lowered the value of the
property involved. It is true that section 13(1)(c) of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950,
as it stands, does not require that in addition to the
material alteration being there, it should be to lower or
reduce the value of the property, but it was significant
that all the three Courts below had not considered the
omission of that allegation in the notices and the statement
of Bhonri Lal and other discrepancies in the pleadings, and
had come to the conclusion which could not be reached. The
only possible conclusion from these facts could be that
either the balcony had been constructed with the implied
consent of the landlord or that after seeing it the landlord
had decided to waive his objection to it on an assurance
given by the tenant, and, therefore, had not made it a
ground for termination of the lease in his notices given
before the suit; the landlord had waived his right to file a
suit on that ground. All the three Courts had failed to look
into these conclusions appearing in evidence and appreciate
the matter in this light. If a party gives up the advantage
he could take of a position of law, it is not open to him to
change and say that he can avail of that position. [131F-H;
132A-D; H]
In the context of the conclusion that the Court had
reached in the facts and circumstances that it could not be
held that the tenants had constructed the wooden balcony or
Dochhatti without the consent express or implied of the
landlord, it was not necessary for the Court to dilate on
the question of waiver any further. [133C]
126
If the Courts below have, while coming to a conclusion
of fact, omitted to consider material pieces of evidence and
have drawn inferences without looking into that evidence
which proves circumstances on the basis of which a contrary
inference could be drawn, then, such findings are not
binding on this Court and in this view of the matter, the
conclusions reached by the Courts below could not be
accepted. [133E]
In-the light of the test laid down by this Court in Om
Prakash v. Amar Singh and another, A.I.R. 1987 S.C. 617, it
was clear that the construction of the balcony (Dochhatti),
which was a wooden structure, did not amount to a material
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alteration which could give a cause of action to the
respondents-landord for filing a suit for eviction. The
judgments and decrees passed by the Courts below set aside
and suit filed by the respondents dismissed. [137C-E ]
Om Prakash v. Amar Singh and another, A.I.R. 1987 S.C.
617; Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish
(Japan Cotton Trading Co. Ltd.) A.I.R. 1935 Privy Council 78
and Babu Manmohan Das Shah and Ors., v. Bishun Das, [1967] 1
SCR 836, relied upon.
Venkatlal G. Pittle & Anr. v. M/s. Bright Bros. Pvt.
Ltd., 4 J.T. 1987 (3) S.C. 139, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10747 of
1983.
From the Judgment and order dated 26.8.1983 of the
Rajasthan High Court in S.B. Civil Second A. No. 153 of
1983.
Shiv Dayal Srivastava, S.K. Bagga and Mrs. S.K. Bagga
for the Appellants.
Dr. Y.S. Chitale and Aruneshwar Gupta for the
Respondents.
The Judgment of the Court was delivered by
OZA, J. This is an appeal filed by the tenant after
obtaining leave from this Court against a decree for
eviction granted by the trial court and ultimately affirmed
in second appeal by the High Court of Rajasthan by its
judgment dated 26.8.83. It appears that the appellants
became tenants in 1947 but in 1958 the predecessors-in
127
title of the respondents one Shri Bhonri Lal Surender Kumar
and Rajinder Kumar purchased the property and thereafter in
1959 they became the tenants of Bhonri Lal and others. It is
alleged that originally the rent was Rs.135 but later on was
raised to Rs.145. The premises in question is a showroom and
apparently is a business premises.
In the year 1974, Bhonri Lal, Surendra Kumar and
Rajinder Kumar filed a suit for eviction against the present
appellant in respect of this show-room which is situated at
M.I. Road, Jaipur, on the ground of bona fide need, material
alterations in the premises and default in payment of rent.
During the pendency of this suit the present respondent
purchased the property from Bhonri Lal and others in 1979.
In substance the present respondent Harsh Wardhan Himanshu
and Smt. Ritu Kasliwal purchased this property during the
pendency of the suit and continued with the suit but the
only ground on which eviction was granted and which was
pressed before us and also before the High Court was the
ground that the tenant present appellant without the
permission of the landlord has made material alterations in
the premises. The learned Judge of the High Court has
maintained the finding of the construction of a balcony
(Dochatti) and maintained the order of eviction on the
ground that it is material alterations in the premises. The
decree has been passed under Section 13(1)(c) of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
which reads as under:
"13(1)(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 premises or
is likely to diminish the value thereof."
It is only on this ground that the decree has been passed
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which has been challenged by the appellant before us.
It is contended by learned counsel for the appellant
that in the plaint what was alleged by the plaintiff was as
stated in Para 5:
"Para 5-That the defendants had constructed one
Dochatti as balcony which is covering good area
and is utilizing this Dochhati for his business.
This work done by defendant is material alteration
in the rented premises and this being without
permission of plaintiffs is against the
128
law and on this Court the plaintiffs are entitled
to get eviction decree for tenanted property."
In the written statement this Para 5 after amendment reads
thus:
"Firm oriental Engineering Co. constructed a
storey like balcony over the disputed show room in
1958 with the permission of the plaintiff."
It was contended by learned counsel that what the
courts below have tried to infer on the basis of some
inspection note and some affidavit filed at the back of the
appellant and on the basis of no other evidence that it is a
structure permanent in nature and that it has been affixed
in the wall and that it has also been affixed on the floor,
this according to learned counsel, is all based on no
evidence at all. It was contended by the learned counsel
that the only pleading was that this wooden balcony
(Dochhatti) has been raised by the tenant. It is significant
that even this is not alleged in the plaint when this was
done whereas in the written statement it was clearly stated
that this Dochhatti was made in 1958. It was further
contended that in fact there is no material or evidence to
come to the conclusion that this was constructed at what
time. It is significant, according to the learned counsel
for the appellant, that the two notices which were given
before filing of the suit by the predecessors-in-title of
the respondent this was not alleged as one of the grounds of
eviction and in his own statement in cross examination what
was stated has significantly been omitted from consideration
by the three courts, the trial court, the appellate court
and the High Court of Rajasthan. Learned counsel referred to
this part of the statement and contended that it is clear
that in the notice this was not made as a ground. In his
cross-examination he stated that when the tenant assured
that it will be removed when he will vacate, he gave up and
that was not taken as a ground for eviction in the notice.
Apart from it, it was contended that in fact in 1964 a
window was opened just to give sufficient light and air to
this Dochhatti or balcony which is alleged to have been
constructed by the tenant and for this purpose the expenses
were borne by the landlord which is admitted by the
predecessors-in-title of the respondent in their own
statement and which is not disputed in these proceedings. On
the basis of this it was contended that in fact the finding
reached by the three courts is not based on evidence. It is
also contended that the material evidence has not been
looked into at all and that the material which could not be
said to be evidence in the case has been looked into to
reach this conclusion.
129
It was further contended that apart from this the
inference that this is a material alteration is contrary to
the principles laid down by this court in number of
decisions. According to the learned counsel, it could not be
said to be a construction which materially altered the
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premises in question. On the basis of the statement of the
respondents predecessor-in-title Bhonri Lal in cross-
examination, the absence of this being a ground of eviction
in the two notices issued by the respondent Bhonri Lal
before filing of the suit and the payment of the expenditure
incurred for opening a window to provide light to this
balcony by the landlord himself are circumstances, according
to the learned counsel, which clearly go to show that this
Dochhatti or balcony was constructed with the permission of
Bhonri Lal and others who were the predecessors-in-title. It
is also clear that for all these years this was present in
the show-room as is clear from the evidence that it is
visible from outside. Therefore it could not be said that
the landlord did not notice it and still no objection was
raised. Learned counsel for the appellant further contended
that the making of the balcony which is the wooden structure
supported on wooden pillars and supported on wooden beams
could not in any manner be said to be a material alteration
of the building itself and in support of this contention the
learned counsel placed reliance on the decision of this
Court in Om Prakash v. Amar Singh and another, AIR 1987 SC
617. It was also contended that the landlord having seen the
balcony constructed and not having raised any objection in
so much so that even in the notice he did not raise an
objection nor it is made a ground for eviction clearly goes
to show that it was with the implied consent of the landlord
that this Dochhatti or balcony was constructed. It is also
clear from the circumstances that in order to provide light
and air to this balcony in the upper portion a window was
made in the show room and the cost of the construction of
this window was paid by the landlord as is admitted by him.
This also goes to show that this balcony or this wooden
cabin was constructed or made with the implied consent of
the landlord.
The statement made by Bhonri Lal in cross-examination
clearly shows, according to the learned counsel, that even
if any right accrued to him on the ground of this alteration
he waived it and for this purpose learned counsel placed
reliance on Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi
Kaish, AIR 1935 Privy Council P 79 (Japan Cotton Trading Co.
Ltd.). On the question of waiver, learned counsel for the
appellant also referred to certain observations in Maxwell
on the Interpretation of Statutes and also to certain
observations from the American Jurisprudence.
130
Learned counsel for the respondents, on the other hand,
referred to the plaint paragraph 5 quoted above and also the
written statement para 5 after amendment and contended that
on these allegations the courts below came to a finding of
fact. However it was not disputed that what construction has
been made is a finding of fact but whether it amounts to
material alteration or not is undoubtedly a question of law.
It was further contended by the learned counsel that as all
the three courts have concurrently came to the conclusion on
question on fact, it is not open to this Court to reopen
that question. It was also contended by learned counsel that
the inspection note by the learned trial Judge, no doubt,
has been relied upon but it is contended that as observed by
the teamed Judge of the High Court it is relied upon only
for purposes of appreciating evidence but unfortunately the
learned counsel for the respondents himself could not refer
to any other evidence except the statement of the tenant the
appellant himself and apart from it even the allegations
contained in para S of the plaint do not clearly make out
that how this construction is such which was affixed on the
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wall and on the basis of which an attempt was made to
contend that in fact it could not be removed unless the
walls are demolished. This argument and the inferences drawn
by the courts below apparently are not based on any evidence
at all. The learned counsel contended that the balcony is
strongly annexed lo the walls with the beams and the
structure is 10‘x25’ to the entire breadth of the showroom
and also contended that it could not be removed without
damaging the walls and thereby damaging the property itself
but unfortunately learned counsel could not refer to any
evidence in the case which could suggest these facts which
were alleged by the learned counsel during the course of his
arguments. Counsel in support of his contentions placed
reliance on the decision of this Court in Om Prakash’s case
(supra) and also on Babu Manmohan Das Shah & Ors. v. Bishun
Das, [1967] 1 SCR 836 and it was also contended that
question of waiver does not arise, according to the learned
counsel, as if the landlord wants not to raise any
objection, he could grant a permission to the tenant but in
absence of that the question of waiver could not be raised.
Learned counsel attempted to contend that Bhonri Lal who
filed this suit in 1974 filed the suit on that ground and
therefore it could not be said that he waived the right to
file a suit on this ground. Learned counsel did not refer to
the statement of Bhonri Lal himself in cross-examination.
It was contended that it was in 1972 that the landlord
for the first time came to know about the construction of
this balcony and in 1974 suit was filed. It was therefore
contended that the appeal deserves to be rejected.
131
The first notice given on behalf of Bhonri Lal is
through an advocate and in this notice it is clear that this
objection about any construction or material alteration is
not at all mentioned. Another notice which is given just a
little before the filing of the suit is a notice dated
13.8.74 and in this notice also there is no mention of any
material alteration or construction of the Dochhatti or
balcony. Although in this there is a reference to some
damage to the floor of show-room which was also made as one
of the grounds which later on was not pressed and given up.
It is therefore plain that if this Dochhatti or balcony
which is a wooden construction put on was a matter which was
without the permission of the landlord and about which the
landlord had not consented, he would have made it as a
ground for termination of the lease or a ground of eviction
in any one of these two notices if not in both. It is very
clear that this fact has not at all been alleged in these
notices given to the tenant-appellant. In the cross
examination of Bhonri Lal, it is clearly stated when he was
asked as to why in the notices which he gave before the
filing of the suit this was not made a ground for
termination of the lease, he plainly stated "no notice was
given for the reason that the defendant had said that when
they would vacate the show-room they would remove the
balcony. On their saying so, I did not have any objection
about the balcony. On the eastern side there is a window. I
do not know its length and breadth. This is correct that
this window was constructed in the year 1964. The cost of
construction of the window amounting to Rs.199.85 p. has
been paid by me to the defendant. The balcony gets light and
air through this widow." It is significant as referred to
above that in the two notices this was not made as a ground.
It is also significant that when this was brought to the
notice of Bhonri Lal the landlord who filed this suit
originally he gave the above explanation.
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The present respondent in fact purchased during the
pendency of the suit this property and indirectly purchased
this litigation. Statement which has been quoted above goes
to show that he gave up his objection to the balcony, it is
also clear from his evidence that a window which was opened
to give light and air to this balcony, the cost of it was
also borne by the landlord himself. In the context of this
evidence it is significant that even in the plaint it was
not clearly stated that this balcony was made in the year
1972 as is now alleged. It is also significant that what is
now alleged that this balcony is supported on beams which
have been fixed in the walls and pillars which have been
fixed in the floor is also not alleged in the plaint at all.
It is also not alleged in the plaint as to how this
structure which is
132
a wooden structure easily removeable according to the
defendant appellant could be said to be a material
alteration or as to how it has impaired or damaged or
lowered the value of the property of the appellant. It is no
doubt true that the Section as it stands does not require
that in addition to material alteration it should be to
lower or reduce the value of the property as was clearly
observed by the learned Judge of the High Court and on that
count there appears to be not much controversy. It is
significant that all the three courts neither considered the
omission of this allegation in the notices nor the statement
made by Bhonri Lal quoted above and descripancies in
pleadings referred to above and have come to conclusions
which could not be reached. The only possible conclusion
from these facts could be that either this balcony was
constructed with the implied consent of the landlord or that
after seeing it and understanding and on assurance given by
the tenant the landlord decide to waive his objection to it
and therefore did not make it as a ground for termination of
the lease in his notice before the suit and even in the
earlier notice which was given by him if at all there is any
doubt it is clear that the landlord waived his right to file
a suit on this ground. Unfortunately all the three courts
failed to look into these conclusions appearing in evidence
and failed to appreciate the matter in this light. On the
question of waiver, in Maxwell on the Interpretation of
Statutes it is observed as under:
"In Stylo Shoes, Ltd. v. Prices Tailors, Ltd.,
(75) a notice to determine an existing tenancy
under the Landlord and Tenant Act, 1954 had not,
it was argued. been served "by leaving it for the
tenants at their last known place of abode in
England" as required by section 23(1) of the Act.
The tenants had in fact received the notice, had
intimated to the landlords that they would not be
willing to give up possession of the premises, and
had issued an originating summons for a new
tenancy. On the facts, Wynn-Parry J. held that the
notice had been properly served; but he added
that, even if it had not been duly served, the
tenants must in the circumstances be taken to have
waived any invalidity in the service." (75) (1960)
Ch. 396. "
It clearly goes to show that if a party gives up the
advantage he could take of a position of law it is not open
to him to change and say that he can avail of that ground.
In Dawsons Bank, Ltd’s case, (supra) the Lordships were
considering the question of waiver as a little
133
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different from estoppel and they observed as under:
"on the other hand, waiver is contractual, and may
constitute a cause of action; it is an agreement
to release or not to assert a right. If an agent,
with authority to make such an agreement on behalf
of his principal agrees to waive his principal’s
rights then subject to any other question such as
consideration the principal will be bound, but he
will be bound by contract."
But in the context of the conclusion that we have reached on
the basis of circumstances indicated above that it could not
be held that the tenant had constructed this Dochhatti or
balcony a wooden piece without the consent express or
implied of the landlord, in our opinion, it is not necessary
for us to dialate on the question of waiver any further and
in this view of the matter we are not referring to the other
decisions on the question of waiver.
It was contended on behalf of the respondents that the
finding about the construction without the consent of the
landlord is a finding of fact and therefore could not be
gone into in this appeal on leave under Art. 136 of the
Constitution but it is clear that if the Courts below while
coming to a conclusion of fact has omitted to consider
material pieces of evidence and have drawn inferences
without looking into the material pieces of evidence which
prove circumstances on the basis of which a contrary
inference could be drawn, such findings are not binding on
this Court and in this view of the matter therefore in our
opinion the conclusions reached by the courts below could
not be accepted.
The next question which was debated at length by
learned counel for parties is as to whether the said
construction of the wooden Dochhatti or a balcony is a
material alteration within the meaning of Sec. 13(1)(c) of
the Act quoted above and in this regard it is undisputed
that what has been constructed is a wooden structure which
makes in the showroom a cabin and on the roof of the cabin a
kind of balcony with a wooden staircase from inside the
cabin to go to this balcony. Admittedly this all is a wooden
structure built on beams and planks inside the showroom
itself and in order to come to the conclusion whether such a
wooden cabin made up inside the showroom could be said to be
a material alteration or not, we can draw much from Om
Prakash’s case (supra) where it was observed:
134
"The Act does not define either the word
’materially’ or the word ’altered’. In the absence
of any legislative definition of the aforesaid
words it would be useful to refer to the meaning
given to these words in dictionaries. Concise
oxford Dictionary defines the word ’alter’ as
change in character, position’ "materially" as an
adverb means important essentially concerned with
matter not with form. In Words and Phrases
(Permanent Edition) one of the meanings of the
word ’alter’ is to make change, to modify, to
change, change of a thing from one form and set to
another. The expression ’alteration’ with
reference to building means ’substantial’ change,
varying, change the form or the nature of the
building without destroying its identity". The
meaning given to those two words show that the
expression ’materially altered’ means "a
substantial change in the character, form and the
structure of the building without destroying its
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identity". It means that the nature and character
of change or alteration of the building must be of
essential and important nature. In Babu Manmohan
Dos Shah v. Bishun Dos, [1967] 1 SC R 836, (AIR
1967 SC 643), this Court considering the
expression ’material alterations’ occuring in S.
3(1)(c), U.P. (Temporary) Control of Rent and
Eviction Act, 1947 observed;
"Without attempting to lay down any general
definition as to what material alterations mean,
as such, the question would depend on the facts
and circumstances of each case, the alterations in
the present case must mean material alterations as
the construction carried out by the respondent had
the effect of altering the front and structure of
the premises."
It is no doubt true that in the last part of this passage
quoted above it has been clearly stated that no definition
could be drawn of the material alteration but it will have
to be decided on the basis of facts and circumstances
appearing in each case but the material consideration would
be whether the construction carried out by the tenant alters
the front show or the structure of the premises and
considering this aspect of the law it was further observed:
"In determining the question the Court must
address itself to the nature, character of the
constructions and the extent
135
to which they make changes in the front and
structure of the accommodation, having regard to
the purpose for which the accommodation may have
been let out to the tenant. The Legislature
intended that only those constructions which bring
about substantial change in the front and
structure of the building should provided a ground
for tenants’ eviction, it took care to use the
word "materially altered the accommodation". The
material alterations contemplate change of
substantial nature affecting the form and
character of the building. Many a time tenants
make minor constructions and alterations for the
convenient use of the tenanted accommodation. The
Legislature does not provide for their eviction
instead the construction so made would furnish
ground for eviction only when they bring about
substantial change in the front and structure of
the building. Construction of a Chabutra, Almirah,
opening a window or closing a verandah by
temporary structure or replacing of a damaged roof
which may be leaking or placing partition in a
room or making similar minor alterations for the
convenient use of the accommodation do not
materially alter the building as in spite of such
constructions the front and structure of the
building may remain unaffected. The essential
element which needs consideration is as to whether
the constructions are substantial in nature and
they alter the form, front and structure of the
accommodation."
Here it has been observed that the essential element which
needs consideration as to whether the construction are
substantial in nature and they alter the front elevation or
the front and the structure of the building itself and it is
in the light of this that ultimately in this decision what
was constructed has been held not to be material alteration
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as it was observed:
"The partition wall was made without digging any
foundation of the floor of the room nor it touched
the ceiling instead; it converting a big hall into
two portions for its convenient use, it could be
removed at any time without causing any damage to
the building. The partition wall did not make any
structural change of substantial character either
in the form or structure of the accommodation."
The question as to whether the construction is of a
permanent nature
136
or a temporary nature also was considered by this Court in
the decision quoted above and it was observed:
"The High Court observed that the fact that a
construction is pennanent or temporary in nature
does not affect the question as to whether the
constructions materially alter the accommodation
or not. We do not agree with this view. The nature
of constructions, whether they are permanent or
temporary, is a relevant consideration in
determining the question of ’material alteration’.
A permanent construction tends to make changes in
the accommodation on a permanent basis, while a
temporary construction is on temporary basis which
do not ordinarily affect the form or structure of
the building, as it can easily be removed without
causing any damage to the building."
It is thus clear that what is alleged to have been
constructed in the present case, in the light of the test
laid down by this Court in the decision referred to above,
could not be said to be material alteration in the premises
in question. In Venkatlal G. Pittie & Anr. v. M/s Bright
Bros. (Pvt.) Ltd., 4 JT 1987 (3) SC 139 the question was not
about material alteration but the question was whether the
construction carried out by the tenant were permanent in
nature and were such which has diminished the value of the
property and further that the construction have been made
after encroaching on the land which was not the part of the
lease and in that context the question as to whether the
structures raised were permanent or temporary have been
considered and the nature of the things as appeared in that
case apparently is of no avail so far as the case in hand is
concerned as it was observed in that case:
"Two questions arise for consideration in these
appeals- (i) whether the structure constructed by
the tenant in the premises in question amounted to
permanent structure leading to the forfeiture of
the tenancy of the tenant; (ii) what is the scope
and extent of the jurisdiction of the High Court
under Article 227 of the Constitution on questions
of facts found by the appellate bench of Small
Causes Court."
In Babu Manmohan Das Shah’s case, (supra) the question which
was be fore this Court was not as tn whether the
construction made was such which could be said to be a
material alteration but the real question which was raised
before the Court was whether it is necessary further to hold
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that this construction diminishes the value of the
accommodation although in the Section it was material
alteration or such construction which diminishes the value
of the accommodation used but it was contended that it will
amount to and considering this aspect of the matter in this
judgment it was observed:
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"As already stated, even if the alterations did
not cause any damage to the premises or did not
substantially diminish their value the alterations
were material alterations and on that basis alone
the appellants were entitled to evict the
respondent."
It is thus clear that even this judgment is of no assistance
so far as the present case is concerned. In the light of the
discussions above and in the light of the test laid down by
this Court in Om Prakash’s case. supra it is clear that this
construction of the balcony or Dochhatti which is a wooden
structure does not amount to material alteration which could
give a cause of action to the respondent landlord for filing
a suit of eviction. No other question was pressed. In the
light of the discussions above therefore the appeal has to
be allowed. It is therefore allowed. The judgment and decree
passed by the courts below are set aside and the suit filed
by the respondent is dismissed. In the circumstances of the
case parties are directed to bear their own costs so far as
this Court is concerned.
S.L. Appeal allowed.
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