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1980 Supreme(Del) 148
High Court Of Delhi
PARMESHWARI DASS KHANNA - Appellant
Versus
BHOLA NATH PARIHAR - Respondent
SECOND APPEAL 84 of 1973
Decided On : 05/12/1980
J.R.TANDON, Prem Chand
A tenant is bound to keep the demised premises in as good condition as he found it and to yield up the property in the same condition subject only to fair wear and tear and irresistible force. A tenant cannot make structural additions and alterations without the consent of the landlord and the alterations that are not authorised would amount to breach of the implied covenant mentioned in clause (m) as also in clause (o) of Section 108 of the Transfer Of Property Act.
Headnote:
LANDLORD AND TENANT - ALTERATION OF STRUCTURE - LOWERING OF FLOOR LEVEL - INJUNCTION - WHETHER ALTERATION OF STRUCTURE AMOUNTS TO BREACH OF COVENANT - WHETHER LANDLORD ENTITLED TO INJUNCTION - DELHI RENT CONTROL ACT, 1958, S. 14(1)(J).
Fact of the Case:
The appellant, a tenant, lowered the level of the floor of the shop he had rented from the respondent-landlord without the latter's consent. The landlord filed a suit for injunction to restrain the appellant from lowering the floor level and effecting any other alteration in the shop. The trial court dismissed the suit, but the appellate court allowed the appeal and granted the landlord a decree for mandatory injunction directing the appellant to restore the floor to its original condition.
Finding of the Court:
The court held that the appellant's act of lowering the floor of the shop amounted to a structural alteration and not merely a repair, and that it was a breach of the implied covenant in the lease agreement that the tenant would keep the property in as good condition as it was at the time he was put in possession. The court also held that the landlord was entitled to an injunction to restrain the appellant from making any further alterations to the shop.
Issues: 1. Whether the appellant's act of lowering the floor of the shop amounted to a structural alteration or merely a repair. 2. Whether the appellant's act was a breach of the implied covenant in the lease agreement that he would keep the property in as good condition as it was at the time he was put in possession. 3. Whether the landlord was entitled to an injunction to restrain the appellant from making any further alterations to the shop.
Ratio Decidendi: The court relied on the following principles in reaching its decision: 1. A tenant is bound to keep the demised premises in as good condition as he found it and to yield up the property in the same condition subject only to fair wear and tear and irresistible force. 2. A tenant cannot make structural additions and alterations without the consent of the landlord and the alterations that are not authorised would amount to breach of the implied covenant mentioned in clause (m) as also in clause (o) of Section 108 of the Transfer Of Property Act. 3. An injunction is a judicial process by which one who has invaded or has threatened to invade the rights, legal or equitable, of another is restrained from continuing or commencing such wrongful act.
Final Decision: The court dismissed the appeal and upheld the decree of the appellate court granting the landlord a mandatory injunction.
( 1 ) THE facts giving rise to this regular second appeal succinctly are that the appellant has been in occupation of Shop No. VIII/ 328, Bazar Ajmeri Gate, as a tenant under the respondent on a monthly rent of-Rs. 18. 60 since early fifties. There was a platform in front of the said shop which was 2. 2. " higher than the level of foot-path. The level of the floor inside the shop was at the same height from the pavement. However, the appellant lowered the level of the platform by about "without the consent and permission of the Respondent/landlord. He also replaced the wooden shutter with an iron shutter likewise. He intended even to lower the level of the floor, of the. shop so as to bring it to the level of the platform infront of the shop. This necessitated dismantling of the existing floor and lowering the plinth of the shop by 1. On coming to know of it the respondent-landlord objected to the same but in vain. Finding that the appellant was adament the respondent-landlord instituted a suit for injunction as far back as June 1965, to restrain the appellant from lowering the level of the floor of the shop and effecting any other alteration in the same.
( 2 ) THE appellant resisted, inter alia, contending that suit for perpetual injunction as framed was not maintainable in as much as he was merely repairing the floor of the shop which was uneven in order to bring it to the level of the platform outside. He asserted that he had put up the iron shutter at a very heavy cost with the consent of the respondent/landlord and even otherwise he was within his right to put the shutter to protect his property lying in the shop.
( 3 ) IT was urged that it was for the sake of convenience of the customers that the floor of the shop which was uneven was being lowered and brought to the level of the platform outside as there was a possibility for customers stumbling over the same. He denied that he had any intention to carry out any alterations in the structure of the shop as such. In other words, his plea was that the lowering of the floor of the shop was not tant- amount to alteration in the structure of the shop and it was just a necessary repair which he could do in his own right as a tenant. It was further urged that mere relaying of the floor did not in any manner prejudice the security of the building; rather it would make the shop better serviceable. The trial proceeded on the following issues :
1. Whether the suit is maintainable in the present form ? 2. Whether the plaintiff is entitled to the injunction prayed for ? 3. Relief.
3. The trial court found issue No. 2 for the appellant and dismissed the suit of the plaintiff-respondent. Consequently the latter preferred an appeal which was accepted by an Additional District Judge vide his judgment dated 12. 10. 1972. However, the appellant did not have the patience to wait for the decision of the appeal and taking full advantage of the temporary respite from adinterim injunction he translated his threat into action and actually lowered the level of the floor and relaid it. Hence while accepting the appeal the learned Additional District Judge took note of the change in the situation and granted the respondent-plaintiff a decree for mandatory injunction directing the appellant to restore the floor to its original condition.
( 4 ) EVIDENTLY the controversy lies in a narrow compass, the only crucial point for determination being as to whether the act of the appellant in lowering the floor of the shop amounts to structural ateration as to call for relief by way of injunction. As observed earlier the appellant was determined to do so and he lost no time the moment he got an opportunity to carry out his design. Ex. P. 1 is the rent note dated 8. 3. 1951 which was executed by the appellant in favour of the defendant at the inception of the tenancy. It inter alia contains a stipulation by the appellant that he would not indulge in any act of waste (torphor)inthe shop in question and
