Removal of a wall without the consent of the landlord can be a ground for eviction if it materially impairs the value and utility of the property.

V.S.Aggarwal, J.

1. The present revision petition has been filed by Ashok Kumar and others (hereinafter described as the petitioners) directed against the order of the learned Rent Controller, Dasuya dated 23.11.1994 and of the Appellate Authority, Hoshiarpur dated 3.5.1997. The learned Rent Controller had passed an order of eviction against the petitioners and the appeal filed by the petitioners had been dismissed by the Appellate Authority.

2. The relevant facts giving rise to the present revision petition are that an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 they; short the Act) had been filed with respect to the shop which had been let out to the petitioner. It had been alleged that the property had been mortgaged with one Narinder Singh for a sum of Rs. 11,000/- vide two mortgage deeds. A suit was filed for possession by way of redemption where the tenants have set up the claim that they are the tenants at monthly rent of Rs. 150/-. It was held that Krishan Chand precedessor-in-interest of the petitioners was tenant under the respondents. A preliminary decree of redemption was passed. The property had been redeemed on the payment of Rs. 11,000/- to the mortgagees. The petitioners were taken as tenants at a monthly rent of Rs. 150/-. The ground of eviction was that arrears of rent have not been paid since August, 1975 and that the petitioners are forcibly and illegally trying to interfere in possession of the respondents over the site adjacent to the demised shop. A civil suit for injunction was filed on 31.3.1987. During the pendency of the suit the petitioners had pull down the southern wall of the shop. The result was that the respondents had to amend the suit and it was converted into a suit for mandatory injunction. The petitioners were directed to restore the vacant possession of the site which they had forcibly occupied. The eviction was claimed contending that the petitioners have materially impaired the value and utility of the shop by removing the southern wall without the consent of the landlord.

3. The arrears of rent were tendered on the first date of hearing and thus the sole surviving ground which was subject matter of controversy as to if the petitioners have materially impaired the value and utility of the property. The petition in this regard was contested alleging that the petitioners have not interfered in possession of the respondents over the adjoining site. It was not-denied that there was civil litigation referred to by the respondent-landlords. But the petitioners case was that the judgment and decree of the civil Court has not been disobeyed.

4. The learned Rent Controller as well as the Appellate Authority held that the petitioners have materially impaired the value and utility of the property i.e. the shop by demolishing the wall at point EF. it was,this ground that prevailed with them and the order of eviction as such was passed. As against the same, the present revision petition as referred to above has been filed.

5. Some of the facts in this regard as already pointed out above are not in controversy. It is not in dispute that the decree of possession by way of redemption had been passed in favour of the respondents and after the same symbolic possession by way of redemption had been delivered. A site pjan had been appended in that litigation. The copy of the same was Ex. A5. A wall at point EF was shown to be in existence. Thereafter, it was contended that the petitioners (their predecessor-in-interest) interfered in the adjoining property. In that litigation another site plan Ex. A8 was filed. The wall was still shown to be in existence. It was during the pendency of the subsequent suit that wall EF is stated to have been removed. These facts reveal that in the earlier litigation it was shown and held that such a wall was in existence. The civil Court returned a finding to this effect that it is the petitioners who had removed the wall. To cont