Ramaswamy, K.
1. This appeal by special leave arises against the order of the Punjab and Haryana High Court in Civil Revision No. 1125 of 1984, dated July 18, 1984 confirming the decree of eviction passed by the Rent Controller and confirmed by the appellate authority under the provisions of the East Punjab Urban Rent Restriction Act, 1949 for short the Act. The ground for eviction ultimately upheld by the courts below was that the appellant had constructed a wall in the verandah of the demised premises and put up a door which materially impaired the value of utility of the building. Shri. Prem Malhotra, learned counsel for the appellant contended that the appellant had not constructed the offending construction. Even if it is so there is no proof adduced by the landlord that by such a construction the value or utility of the building had been materially impaired. As such the decree of eviction is clearly illegal. In support thereof he placed reliance on a judgment of this Court reported in Om Prakash v. Amar Singh.
2. The question, therefore, is whether the finding of courts below which concurrently found that the appellant had constructed a wall in the verandah which materially affected the value or utility of the shop is vitiated by law. The building consists two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate on the evidence and upset that finding. It was also found that the wall was constructed without the permission of the landlord. Due to construction the value or utility of the building has been materially affected. Section 13(1) provides thus
"A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Rent Restriction Act, 1947 as subsequently amended)." *
Clause (iii) of sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land", the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value of utility of the building is from the point of the landlord and not of the tenant. The first limb of Clause (iii) of sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises. It is contended by Mr. Prem Malhotra that the landlord should prove as to how it is materially affected and that there is no evidence adduced by the landlord. We find no force in the contention. By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that sub-section (2) of Section 13 gives discretion to the Rent Controller to order eviction while in the cases covered under sub-section (3) of Section 13 it is made mandatory to direct eviction of the tenant. Therefore, the Rent Controller has to independently consider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Controller to order eviction in his favour. The landlord had not proved such facts in his favour. Therefore, the Court had committed illegality in granting the decree of ejectment. We find no force in the contention. Undoubtedly the statute, on proof of facts, gives discretion to the court, by Section 13(2) and made mandatory in case covered by Section 13(3), to order eviction. In a given set of facts the Rent Controller, despite finding that the tenant committed such acts which may impair the value or utility of the building yet may refuse to grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may not warrant eviction and then the burden shifts on to the landlord to rebut these facts or circumstances. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellate. So no fault can be laid at the Rent Controllers failure to exercise the discretion. In Om Prakash case the words "materially altered" under Section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952, came up for consideration. This Court held that the nature and character of change or alteration of the building must be of an essential and important nature. In determining the question the court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. In considering that language it was held that putting up a door to the verandah is not a material alternation. The ratio thus renders little assistance to the facts of the case
3. In view of the facts and circumstances of the case the appellant may remain in possession for one year and shall vacate the premises on or before April 1, 1994 subject to the condition that the appellant should pay Rs. 200 per month from April 1993 till date of eviction. He should file undertaking in the Registry of this Court within a period of six weeks with usual conditions.
4. The appeal is accordingly dismissed but in the circumstances without costs.
