Points Of law : It was necessary to not only plead but also to place cogent evidence with regard to time when alterations had taken place to establish conclusively that it was subsequent to tenancy - Situation presently is no less different.

ORDER

1. The appellant assails order dated 4.2.2009 allowing the Civil Revision preferred by the respondent, granting three months time to the appellant to vacate the premises in question.

2. The parties shall be referred to by their respective position before the Rent Controller for convenience. The plaintiff-landlord filed Rent Petition No.51/02 for eviction of the respondent-tenant on ground of non-payment of rent and making material addition and alterations without the consent of the plaintiff. The arrears of rent having been paid, the Rent Controller rejected the plea for eviction holding that the plaintiff had failed to prove any addition, alteration etc. Rent Appeal No.16/1988 preferred by the plaintiff was rejected. The plaintiff then preferred the Civil Revision application.

3. Learned counsel for the respondent contended that the two shops, the subject matter of the suit are contiguous to each other. The respondent runs a photo studio in the tenanted premises. Shop No.1 was leased out from 1.5.1981 and the tenancy of Shop No.2 was recorded in an agreement dated 17.4.1985 acknowledging that the respondent was in occupation since earlier. Clause 9 of the former lease for shop No.1 permitted addition and alteration at the cost of the respondent. The plaintiff in his evidence gave up his claim for eviction from shop no.2. The respondent in his written statement had specifically denied the allegations of having made any material addition and alteration in the leased premises. It was next submitted from Exhibit P-1, the site plan filed by the plaintiff, that the partition wall between the two shops had remained undisturbed.

4. It was next submitted that the pleadings were completely lacking as to when the additions and alterations had been made. Even the plea that the same was done when the plaintiff had gone to Dehradun, also remained unsubstantiated as no date was mentioned with regard to the visit to Dehradun. Reliance was placed on G. Reghunathan vs. K.V. Varghese [(2005) 7 SCC 317] without prejudice to the aforesaid submissions, that the nature of alternations done for convenience of business to create dark rooms to facilitate the photography business did not materially impair or diminish the value of the building.

5. Learned counsel for the plaintiff submitted that a sporadic statement in evidence that the claim was being restricted to shop no.1 only was not material as no issue was framed with regard to the same or finding arrived at. The pleadings were specific that eviction was being sought from both the shops. Referring to Section 13(2)(iii) of the Haryana Urban (Control of Rent & Eviction) Act, 1973,(hereinafter referred to as the Act) it was submitted that demolition of the wall between the two shops, removal of the beam, opening of a door in the partition wall and construction of dark rooms inside the shop was an addition/alteration making it a ground for eviction. The assertions of the plaintiff with regard to the addition/alterations were specific while the denial was vague and evasive. There was no specific denial that the wall and beam had not been demolished, door had not been installed or that dark rooms had not been constructed.

6. Reference to the findings of the Rent Controller, confirmed by the appellate authority, regarding lack of specific pleading concerning the date of the alteration, reliance was placed on Order VI, Rule 2 of the Code of Civil Procedure to submit that the plaintiff was only required to state material facts in support of the claim and not the evidence by which they were to be proved. The two judgments referred to by the appellate authority of the Punjab and Haryana High Court were not relevant in the facts of the present case in view of the lack of any specific denial by the respondent of the material alterations made by him.

7. We have considered the submissions on behalf of the parties. It is considered appropriate to set out Section 13(2)(iii) which reads as follows:

"13. Evic