The judgment established that material impairment must be assessed from the landlord's viewpoint, and findings should be based on sufficient documentary evidence and expert reports.

G.S. Sandhawalia, J.

The tenants are aggrieved against the order of the Appellate Authority, Ludhiana dated 03.10.2016 whereby, eviction has been ordered on the ground of materially impairing the value and utility of the tenanted premises. Resultantly, the findings recorded by the Trial Court on 12.09.2013 were held to be patently illegal and there being misreading of evidence, issue no. 3 has accordingly been reversed and ejectment has been ordered on the said ground.

2. Senior counsel for the petitioner, Mr. Kanwaljit Singh has vehemently argued that the Appellate Authority was not justified in passing the order in as much as the landlord was residing in the same premises and, therefore, was aware of the alleged material impairments and it was with his consent. On an earlier occasion, one Mela Ram had filed one petition in the year 1996 which was dismissed in default on 4.11.2000 and which was never restored. Thus, there was a constructive res judicata inter se the parties as the same plan which had been exhibited in the earlier petition had been relied upon and the reliance was placed upon the earlier petition dated 3.05.1996 filed by the said person and the said factum was admitted inter the parties. Resultantly, the argument raised was that the subsequent petition filed on 30.09.2003 on the same cause of action was not maintainable.

3. Mr. Deepak Thapar, Advocate, appearing on behalf of the respondents, on the other hand, submitted that 4 separate shops had been taken on rent at a different points of time and the open court yard in front of the shops had been closed and converted into a shed and the entrance to them been shifted from the other side. A shutter had been put in shop no. 2 on the western side and the wall removed between shop nos. 1 and 2 which would be clear from the site plan (Ex.P-1). It was accordingly submitted that the material impairment is to be seen from the point of view of the landlord and in the present case on account of the impairment having been done, the value and utility of the building had been altered to a substantial extent and, therefore, the eviction was well justified. It was further submitted that there was a family dispute going on at an earlier point of time and a receiver had been appointed who had filed the petition and on account of his lapse, there was a dismissed in default. The matter thereafter having been settled inter se the family members, the said dismissal could not be held against them. Reference was also made to the civil suit filed on 29.09.2003 for permanent injunction restraining the present petitioners from making additions and alterations in the shops to contend that there was no consent as such.

4. The Appellate Authority came to the conclusion that the 4 shops in question had been tenanted at different points of time, between 1962 to 1976, which was also the case of the tenants and there was a separate identity of the 4 shops and there were different boundaries. He, accordingly, held that as per the evidence which has come on record and even as per the site-plan prepared by the tenant, there was only one opening on one side. It was, accordingly, held that the varandah in front had never been covered when the shops were rented out and therefore, it had been subsequently covered and therefore, the additions and alterations were present on the site. It was, accordingly, held that it was not the plea of the respondents also that additions and alterations have been made with the consent of the landlord and therefore, the conclusion was arrived at that there was material impairment and merely because the landlords were residing in the same building, the defence was irrelevant. Accordingly, the finding of the Rent Controller was held to be patently illegal and a misreading of the evidence and the findings on issue No.3 was reversed and decided in favour of the respondents.

5. A perusal of the eviction petition which was filed would go on to show that the ejectment