Landlord must prove that tenant's alterations materially impaired value and utility of demised premises in order to obtain eviction order.

J.V.Gupta, J.

1. This landlords petition in whose favour the eviction order was passed by the Rent Controller but was set aside in appeal.

2. The landlord Walaiti Ram sought the ejectment of his tenant Sohan Lal respondent from the shop in dispute which was leased out on monthly rent of Rs. 35/- on October 16, 1966 vide rent note Exhibit A. 1. The ejectment was sought on the ground that the tenant has materially impaired the value and utility of the shop in dispute. It was alleged that one hand-pump was installed in the premises, which was removed by the tenant and was sold away. There was one wall dividing the premises into two portions of equal length and that wall was removed from that place and was constructed at a different place whereby the length of the front portion of the shop increased and that of the back portion was decreased. It was also alleged that our electric motor of 7.5 H.P. was installed in the premises and the tenant got that electric connection disconnected and altered the electric connection from 3 phase to 1 phase. The tenant also constructed a Chhappar on the platform in front of the shop. On these allegations, it was pleaded that the tenant had made material alterations in the demised premises. In the written statement, the tenant controverted the said allegations and pleaded that he had not altered the premises in any manner. The learned Rent Controller found that the tenant had materially altered the premises as he has clearly violated the terms of the rent note and has altered not only the sizes of the rooms rented out to him by the landlord without the latters consent but the tenant also got the electric connection for 7.5 H.P. motor disconnected in clear violation of the terms of the rent note and without the consent of the landlord. Thus, according to the learned Rent Controller, it is clearly established that the tenant has materially impaired the value and utility of the premises in dispute. Consequently, the eviction order was passed. In appeal, the learned Appellate Authority reversed the said finding of the trial Court. It was found that from the evidence it is made out that the tenant had not constructed any Chhappar in front of the shop and the Chhappar, if any, was in existence when the shop was leased out. It was further found that it was proved that the tenant removed the intervening wall and constructed it at a different place whereby the length of the front portion of the shop was increased. But this by itself does not amount to alteration which materially impairs the value and utility of the building. The learned Appellate Authority also observed that there is no evidence on the record to show that the intervening wall was supporting the roof and its removal had rendered the premises as dangerous. In view of these findings, the eviction order was set aside. Dissatisfied with the same, the landlord has filed this petition in this Court.

3. The learned counsel for the petitioner contended that having found that the original wall was removed by the tenant and was constructed at a different place, it could not be held that it had not materially impaired the value and utility of the demised premises. According to the learned counsel, the removal of the wall clearly proves that the tenant has materially implied the value of the demised premises. I support of his contention, he referred to Smt. Kalawati Devi (deceased) widow of Kalawati Devi Nemi Chand, 1985(1) RCR 38, Natha Singh v. Harbans Singh, 1980(2) R.C.J. 666 1983(2) and Rajagopaliah Setty, V.R. v. N. Radhakrishna, 1983 (2) RCR 469. Reference was also made to Om Parkash and another v. Sarup Singh, 1981 (2) R.C.J. 237 to contented that even if no specific plea was taken in the ejectment application in this behalf even then the eviction order could be passed, if there was evidence on the record to prove the same. On the other hand, the learned counsel for the tenant submitted that the landlord failed to allege that in what ma