Holding

The wooden balcony does not constitute a material alteration and the landlord's waiver bars any eviction on that ground.

Summary

The tenants appealed an eviction order that was based on an alleged material alteration – the construction of a wooden balcony (Dochhatti) – without the landlord's permission under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The trial court and the Rajasthan High Court upheld the eviction, but the Supreme Court found that the landlord had never raised the balcony as a ground in any notice and had, by his conduct, waived any objection. The balcony was a removable wooden structure that did not substantially alter the front or structure of the building, and therefore did not satisfy the test for "material alteration" laid down in Om Prakash v. Amar Singh. Consequently, the Supreme Court set aside the lower courts' decrees and dismissed the suit. The appeal was allowed and each party bore its own costs.

Issues considered

Whether the construction of a wooden balcony (Dochhatti) amounts to a "material alteration" under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
Whether the landlord waived his right to claim material alteration by failing to mention it in the pre‑suit notices.
Whether the lower courts erred in concluding that a material alteration had occurred without properly considering the evidence.

Legislation cited

Rajasthan Premises (Control of Rent and Eviction) Act, 1950s. 13(1)(c)

Subjects

landlord‑tenantevictionmaterial alterationwaivernoticeRajasthan Premises Actbalcony constructionSupreme Court

Judgment

A BRIJENDRA NATH BHARGAVA & ANR.
v.
HARSH WARDHAN & ORS.

DECEMBER 2, 1987

B [SABYASACHI MUKHARJI AND G.L. OZA, JJ.]

Landlord-Tenant matter-Tenant's appeal against Order of
eviction on ground of material alteration made in the premises without
landlord's permission-Under Rajasthan Premises (Control of Rent and
Eviction) Act, 1950-Section 13( l)(c) thereof.
c In the year 1974, the then landlords of the property in dispute,
Bhonri Lal and others, filed a suit for eviction against the tenants/ \ '
appellants on the ground of bona fide need, material alterations in the
premises and default in payment of the rent. During the pendency of
the suit, the present respondents purchased the property in 1979 and
D continued with the suit for eviction. The trial Court passed a decree
for eviction on the ground of material alterations-construction of a
wooden balcony (Dochhatti}-made in the premises by the appellants
under section 13(1)(c) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950. The decree of the trial Court was affirmed in
Second Appeal by the High Court. Aggrieved by the decision of the
E High Court, the appellants appealed to this Court by special leave.

Allowing the Appeal, the Court,

HELD: The first notice in the case given to the tenants/appel·
lants on behalf of the then landlord Bhonri Lal was through an
F Advocate and there was no mention of the objection about any
construction or material alteration at all. Another notice dated
13.8.1974, given just a little before the filing of the suit for eviction,
also did not contain any mention of any material alteration or cons·
!ruction of the balcony (Dochatti). There was a reference to some
damage to the floor of the property in dispute in that notice, but the
G same was given up and not pressed. It was, therefore, plain that if the
balcony fDochatti, which was a wooden structure, was a construction
without the permission and consent of the landlord, he would have
made it a ground for termination of the lease or a ground of eviction
mentioned in any one of the two notices above-said, if not both. It was
a signtficant factor that in the two notices, that construction was not
ff mentioned as a ground. In his cross-examination, Bhonri Lal admit-
124
B.N. BHARGAVA, v. HARSH WARDHAN 125
A A
ted that no notice about the balcony had been given, and explained
away the reasons therefor. Il3lA-D I
>if
The present respondents purchased the property in dispute
during the pendency of the suit. The statement of Bhonri Lal in cross-
examination, showed that he had given up his objection to the balcony, B
and it was also clear from his evidence that the cost of a window,
constructed in the year 1964 to give light and air to the balcony, had
been borne by the landlord himself. In the context of that evidence, it
was significant that even in the plaint it had not been clearly stated
that the balcony had been constructed in the year 1972 as was now
~-t- alleged. It was also significant that what was now alleged-that the
balcony was supported on beams fixed in the walls and and pillars fixed c
in the floor-was also not alleged in the plaint at all. It was also not
1' alleged in the plaint as to how the structure in question which was a
wooden structure, easily removable according to the appellants, could
' be said to be a material alteration or how the same had impaired or
damaged or lowered the value of the property involved. It is true that D
section 13(l)(c) of the Rajasthan Premises (Control of Rent and
,.. Eviction) Act, 1950, as it stands, does not require that in addition to
the material alteration being there, it should be to lower or reduce the
value of the property, but it was significant that all the three Courts
below had not considered the omission of that allegation in the notices
and the statement of Bhonri Lal and other discrepancies in the E
pleadings, and had come to the conclusion which could not be reached.
The only possible conclusion from these facts could be that either the
bakony had been constructed with the implied consent of the landlord
or that after seeing it the landlord had decided to waive his objection
to it on an assurance given by the tenant, and, therefore, had not
made it a ground for termination of the lease in his notices given F
before the suit; the landlord had waived his right to file a suit on that
ground. All the three Courts had failed to look into these conclu-
sions appearing in evidence and appreciate the matter in this light.
If a party gives up the advantage he could take of a position of law,
it is not open to him to change and say that he can avail of that
position. [l3lF-H; l32A-D; HJ G
.....
In the context of the conclusion that the Court had reached in
,l the facts and circumstances that it could not be held that the tenants
had· constructed the wooden balcony or Dochhatti without the consent
express or implied of the landlord, it was not necessary for the Court
to dilate on the question of waiver any further. [l33C l H
126 SUPREME COURT REPORTS [1988] 2 S.C.R.

A If the Courts below have, while coming to a conclusion of fact,
omitted to consider material pieces of evidence and have drawn
inferences without looking into that evidence which proves circum-
stances on the basis of which a contrary inference could be drawn,
then, snch findings are not binding on this Court and in this view of
the matter, the conclusions reached by the Courts below could not be
B accepted. [133E]

In ·the light of the test laid down by this Court in Orn Prakash v.
Amar Singh and another, A.I.R. 1987 S.C. 617, it was clear that the
construction of the balcony (Dochhatti), which was a wooden struc-
ture, did not amount to a material alteration which could give a cause ~

I
C of action to the respondents-landord for filing a suit for eviction. The
judgments and decrees passed by the Courts below set aside and suit
filed by the respondents dismissed. [l37C-E]

Orn Prakash v. Amar Singh and another, A.I.R. 1987 S.C. 617;
Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish (Japan
b Cotton Trading Co. Ltd.) A.I.R. 1935 Privy Council 78 and Babu
Manmohan Das Shah and Ors.,. v. Bishun Das, [1967] 1 SCR 836,
relied upon.

Venkatlal G. Pittle & Anr. v. M/s. Bright Bros. Pvt. Ltd., 4 J.T.
1987 (3) S.C. 139, referred to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
10747 of 1983.

From the Judgment and Order dated 26.8.1983 of the Rajas-
than High Court in S.B. Civil Second A. No. 153 of 1983. ~
F
Shiv Dayal Srivastava, S.K. Bagga and Mrs. S.K. Bagga for
the Appellants.

Dr. Y .S. Chi tale and Aruneshwar Gupta for the Respondents.

G The Judgment of the Court was delivered by

OZA, J. This is an ·appeal filed by the tenant after obtaining
leave from this Court against a decree for eviction granted by the
trial court and ultimately affirmed in second appeal by the High
Court of Rajasthan by its judgment dated 26.8.83. It appears that the
H appellants became tenants in 1947 but in 1958 the predecessors-in-
B.N. BHARGAVA v. HARSH WARDHAN (OZA, J.] 127

title of the respondents one Shri Bhonri Lal Surender Kumar and A
Ra jinder Kumar purchased the property and thereafter in 1959 they
became the tenants of Bhonri Lal and others. It is alleged that
orginally the rent was Rs.135 but later on was raised to Rs.145. The
premises in question is a showroom and apparently is a business
premises.
B
In the year 1974, Bhonri Lal, Surendra Kumar and Rajinder
Kumar'filed a suit for eviction against the present appellant in respect
of this show-room which is situated at M.I. Road, Jaipur, on the
ground of bona fide need, material alterations in the premises and
default in payment of rent. During the pendency of this suit the
present respondent purchased the property from Bhonri Lal and
others in 1979. In substance the present respondent Harsh Wardhan
c
l Himanshu and Smt. Ritu Kasliwal purchased this property during the
pendency of the suit and continued with the suit but the only ground
on which eviction was granted and which was pressed before us and
also before the High Court was the ground that the tenant present
appellant without the permission of the landlord has made material D
alterations in the premises. The learned Judge of the High Court has
maintained the finding of the construction of a balcony (Dochatti)
and maintained the order of eviction on the ground that it is material
alterations in the premises. The decree has been passed under
Section 13(l)(c) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950 which reads as under: E

"13(l)(c)-that the tenant has without the permission of
the landlord made or permitted to be made any such
construction as, in the opinion of the court has materially
~) altered the premises or is likely to diminish the value
thereof," F
r It is only on this ground that the decree has been passed which has
been challenged by the appellant before us.

It is contended by learned counsel for the appellant that in the
plaint what was alleged by the plaintiff was as stated in Para 5: G

"Para 5-That the defendants had constructed one
Dochatti as balcony which is covering good area and is
utilizing this Dochhati for his business. This work done by
defendant is material alteration in the rented premises and
this being without permission of plaintiffs is against the H
128 SUPREME COURT REPORTS (!988) 2 S.C.R.

A law and on this Court the plaintiffs are entitled to get
eviction decree for tenanted property."

In the written statement this Para 5 after amendment reads thus:

"Firm Oriental Engineering Co. constructed a storey like
B balcony over the disputed show room in 1958 with the
permission of the plaintiff."

It was contended by learned counsel that what the courts below
have tried to infer on the basis of some inspection note and some
affidavit filed at the back of the appellant and on the basis of no
c other evidence that it is a structure permanent in nature and that it
has been affixed in the wall and that it has also been affixed on the
floor, this according to learned counsel, is all based on no evidence at
)
all. It was contended by the learned counsel that the only pleading
was that this wooden balcony (Dochhatti) has been raised by the
tenant. It is significant that even this is not alleged in the plaint when
D this was done whereas in the written statement it was clearly stated
that this Dochhatti was made in 1958. It was further contended that
in fact there is no material or evidence to come to the conclusion that
this was constructed at what time. It is significant, according to the
learned counsel for the appellant, that the two notices which were
given before filing of the suit by the predecessors-in-title of the
E respondent this was not alleged as one of the grounds of eviction and
in his own statement in cross examination what was stated has signi-
ficantly been omitted from consideration by the three courts, the trial
court, the appellate court and the High Court of Rajasthan. Learned
counsel referred to this part of the statement and contended that it is
clear that in the notice this was not made as a. ground. In his cross-
F examination he stated that when the tenant assured that it will be
removed when he will vacate, he gave up and that was not taken as a
ground for eviction in the notice. Apart from it, it was contended that
in fact in 1964 a window was opened just to give sufficient light and air
to this Dochhatti or balcony which is alleged to have been construc-
ted by the tenant and for this purpose the expenses were borne by the
G landlord which is admitted by the predecessors-in-title of the respon-
dent in their owri statement and which is not disputed in these
proceedings. On the basis of this it was contended that in fact the
finding reached by the three courts is not based on evidence. It is also
contended that the material evidence has not been looked into at all
and that the material which could not be said to be evidence in the
H case has been looked into to reach this conclusion.
B.N: BHARGAVA v. HARSH WARDHAN [OZA, J.] 129

It was further contended that apart from this the inference that
A
this is a material alteration is contrary to the principles laid down by
this court in number of decisions. According to the learned counsel,
it could not be said to be a construction which materially altered the
premises in question. On the basis of the statement of the respon-
dents predecessor-in-title Bhonri Lal in cross-examination, the
absence of this being a ground of eviction in the two notices issued by B
the respondent Bhonri Lal before filing of the suit and the payment
of the expenditure incurred for opening a window to provide light to
this balcony by the landlord himself are circumstances, according to
the learned counsel, which clearly go to show that this Dochhatti or
balcony was constructed with the permission of Bhonri Lal and others
who were the predecessors-in-title. It is also clear that for all these
years this was present in the show-room as is clear from the evidence
c
that it is visible from outside. Therefore it could not be said that the
landlord did not notice it and still no objection was raised. Learned
counsel for the appellant further contended that the making of the
balcony which is the wooden structure supported on wooden pillars
and supported on wooden beams could not in any manner be said to D
.,, be a material alteration of the building itself and in support of this
contention the learned counsel placed reliance on the decision of this
Court in Om Prakash v. Amar Singh and another, AIR 1987 SC 617.
It was also contended that the landlord having seen the balcony
constructed and not having raised any objection in so much so that
even in the notice he did not raise an objection nor it is made a E
ground for eviction clearly ·goes to show that it was with the implied
consent of the landord that this Dochhatti or balcony was contructed.
It is also clear from the circumstances that in order to provide light
and air to this balcony in the upper portion a window was made in the
show room and the cost of the construction of this window was paid by
the landlord as is admitted by him. This also goes to show that this F
balcony or this wooden cabin was constructed or made with the
implied consent of the landlord.

The statement made by Bhonri Lal in cross-examination clearly
shows, according to the learned counsel, that even if any right
accrued to him on the ground of this alteration he waived it and for G
this purpose learned counsel placed reliance on Dawsons Bank Ltd.
v. Nippon Menkwa Kabushihi Kaish, AIR 1935 Privy Council P 79
(Japan Cotton Trading Co. Ltd.). On the question of waiver, learned
counsel for the appellant also referred to certain observations iri
Maxwell On the Interpretation of Statutes ar.d also to certain
observations from-the American Jurisprudence. H
130 SUPREME COURT REPORTS [1988] 2 S.C.R.

Learned counsel for the respondents, on the other hand, refer-
A red to the plaint paragraph 5 quoted above and also the written
statement para 5 after amendment and contended that on these
allegations the courts below came to a finding of fact. However it was
not disputed that what construction has been made is a finding of fact
but whether it amounts to material alteration or not is undoubtedly a
B question of law. It was further contended by the learned counsel that
as all the three courts have concurrently came to the conclusion on
question on fact, it is not open to this Court to reopen that question.
It was also contended by learned counsel that the inspection note by
the learned trial Judge, no doubt, has been relied upon but it is
contended that as observed by the learned Judge of the High Court it
is relied upon only for purposes of appreciating evidem;e but unfor-
tunately the learned counsel for the respondents himself could not
refer to any other evidence except the statement of the tenant the
appellant himself and apart from it even the allegations contained in
para 5 of the plaint do not clearly make out that how this construc-
tion is such which was affixed on the wall and on the basis of which
D an attempt was made to contend that in fact it could not be removed
unless the walls are demolished. This argument and the inferences
drawn by the courts below apparently are not based on any evidence
at all. The learned counsel contended that the balcony is strongly
annexed to the walls with the beams and the structure is 10' X25' to
the entire breadth of the showroom and also contended that it could ·-i
E not be removed without damaging the walls and thereby damaging
the property 48elf but unfortunately learned counsel could not refer
to any evidence in the case which could suggest these facts which ,
~
1
were alleged by the learned counsel during the course of his argu-
ments. Counsel in support of his contentions placed reliance on the
decision of this Court in Om Prakash's case (supra) and also on Babu
f Manmqhan Das Shah & Ors. v. Bishun Das, [1967] I SCR 836 and it
was also contended that question of waiver does not arise, according
to the learned counsel, as if the landlord wants not to raise any
objection, he could grant a permission to the tenant but in absence of
that the question of waiver could not be raised. Learned counsel
attempted to contend that Bhonri Lal who filed this suit in 1974 filed 1...
G the suit on that ground and therefore it could not be said that he
waived the right to file a suit on this ground. Learned counsel did not
refe'r to the statement of Bhonri Lal himself in cross-examination. ).,
It was contended that it was in 1972 that the landlord for the
first time came to know about the construction of this balcony and in
H 1974 suit was filed. It was therefore contended that the appeal
deserves to be rejected.
B.N. BHARGAVA v. HARSH WARDHAN [OZA, J.] 131

The first notice given on behalf of Bhonri Lal is through an A
advocate and in this notice it is clear that this objection about any
construction or material alteration is not at all mentioned. Another
notice which is given just a little before the filing of the suit \s a
notice dated 13.8.74 and in this notice also there is no mention of any
material alteration or construction of the Dochhatti or balcony.
Although in this there is a reference to some damage to the floor of B
show-room which was also made as one of the grounds which later on
was not pressed and given up. It is therefore plain that if this
Dochhatti or balcony which is a wooden construction put on was a
matter which was without the permission of the landlord and about
which the landlord had not consented, he would have made it as a
ground for termination of the lease or a ground of evietion in any one
of these two notices if not in both. It is very clear that this fact has
c
not at all been alleged in these notices given to the tenant-appellant.
In the cross examination of Bhonri Lal, it is clearly stated when he
was asked as to why in the notices which he gave before the filing o~
the suit this was not made a ground for termination of the lease, he
plainly stated "no notice was given for the reason that the defendant D
had said that when they would vacate the show-room they would
remove the balcony. On their saying so, I did not have any objection
about the balcony. On the eastern side there is a window. I do not
know its length and breadth. This is correct that this window was
··:r- contructed in the year 1964. The cost of construction of the window
amounting to Rs.199.85 p. has been paid by me to the defendant. E
The balcony gets light and air through this widow." It is significant as
referred to above that in the two notices this was not made as a
ground. It is also significant that when this was brought to the notice
of Bhonri Lal the landlord who filed this suit originally he gave the
above explanation.
F
The present respondent in fact purchased during the pendency
of the suit this property and indirectly purchased this litigation.
Statement which has been quoted above goes to show that he gave up
his objection to the balcony, it is also clear from his evidence that a
window which was opened to give light and air to this balcony, the
cost of it was also borne by the landlord himself. In the context of G
this evidence it is significantthat even in the plaint it was not clearly
"stated that this balcony was made in the year 1972 as is now alleged.
It is also significant that what is now alleged that this balcony is
supported on beams which have been fixed in the walls and pillars
which have been fixed in the floor is also not alleged in the plaint at
all, It is also not alleged in the plaint as to how this structure which is H
132 SUPREME COURT REPORTS [1988] 2 S.C.R.
j
A a wooden structure easily removeable according to the defendant
appellant could be said to be a material alteration or as to how it has
impaired or damaged or lowered the value of the property of the
appellant. It is no doubt true that the Section as it stands does not
require that in addition to material alteration it should be to lower or
reduce the value of the property as was clearly observed by the
B learned Judge of the High Court and on that count there appears to
be not much controversy. It is significant .that all the three courts
neither considered the omission of this allegation in the notices nor
the statement made by Bhonri Lal quoted above and descripancies in
pleadings referred to above and have come to conclusions which
could not be reached. The only possible conclusion from these facts
C could be that either this balcony was constructed with the implied
consent of the landlord or that after seeing it and understanding and
on assurance given by the tenant the landlord decide to waive his )

objection to it and therefore did not make it as a ground for termi-
nation of the lease in his notice before the suit and even in the earlier
notice which was given by him if at all there is any doubt it is clear
D that the landlord waived his right to file a suit on this ground.
Unfortunately all the three courts failed to look into these conclu-
sions appearing in evidence and failed to appreciate the matter in this
light. On the question of waiver, in Maxwell on the Interpretation of
Statutes it is observed as under:

E "In Stylo Shoes, Ltd. v. Prices Tailors, Ltd., (75) a notice
to determine an existing tenancy under the Landlord and
Tenant Act, 1954 had not, it was argued, been served "by
leaving it for the tenants at their last known place of
abode in England" as required by section 23(1) of the
Act. The tenants had in fact received the notice, had
F intimated to the landlords that they would not be willing to
give up possession of the premises, and had issued an
originating summons for a new tenancy. On the facts,
Wynn-Parry J. held that the notice had been properly
served; but he added that,. even if it had not been duly
served, the tenants must in the circumstances be taken to
G have waived any invalidity in the service."
(75) ( 1960) Ch. 396."

It clearly goes to show that if a party gives up the advantage he
could take of a position of law it is not open to him to change and say
that he can avail of that ground. In Dawsons. Bank, Lid's case, (supra)
H the Lordships were considering the question of waiver as a little·
B.N. BHARGAVA v. HARSH WARDHAN [OZA, J.) 133
l
different from estoppel and they observed as under: A
·i
"On the other hand, waiver is contractual, and may cons-
titute a cause of action; it is an agreement to release or not
to assert a right. If an agent, with authority to make such an
agreement on behalf of his principal agrees to waive his B
principal's rights then subject to any other question such
as consideration the principal will be bound, but he will be
bound by contract."

~
But in the context of the conclusion that we have reached on the basis
of circumstances indicated above that it could not be held that the
tenant had constructed this Dochhatti or balcony a wooden piece c
without the consent express or implied of the landlord, in our opinion,
it is not necessary for us to dialate on the question of waiver any
further and in this view of the matter we are not referring to the other
' decisions on the question of waiver.
D
It was contended on behalf of the respondents that the finding
,
about the construction without the consent of the landlord is a finding
of fact and therefore could not be gone into in this appeal on leave
under Art. 136 of the Constitution but it is clear that if the Courts
below while coming to a conclusion of fact has omitted to consider
material pieces of evidence and have drawn inferences without looking
E
into the material pieces of evidence which prove circumstances on the
basis of which a contrary inference could.be drawn, such findings are
not binding on this Court and in this view of the matter therefore in
our opinion the conclusions teached by the courts below could not be

5 accepted.

The next question which was debated at length by learned counel
F
r for parties is as to whether the said construction of the wooden
Dochhatti or a balcony is a material alteration within the meaning of
Sec. 13(1)(c) of the Act quoted above and in this regard it is un-
disputed that what has been constructed is a wooden structure which
-?. makes in the showroom a cabin and on the roof of the cabin a kind of
G
balcony with a wooden staircase from inside the cabin to go to this
balcony. Admittedly this all is a wooden structure built on beams an\!
~ planks inside the showroom itself and in order to come to the
conclusion whether such a wooden cabin made up inside the show-
room could be said to be a material alteration or not, we can draw
much from Om Prakash's case (supra) where it was observed: H
134 SUPREME COURT REPORTS [!988] 2 S.C.R.

A "The Act does not define either the word 'materially' or
the word 'altered'. In the absence of any legislative defini-
tion of the aforesaid words it would be useful to refer to the
meaning given to these words in dictionaries. Concise
Oxford Dictionary defines the word 'alter' as change in
character, position' "materially" as an adverb means
B important essentially concerned with matter not with form.
In Words and Phrases (Permanent Edition) one of the
meanings of the word 'alter' is to make change, to modify,
to change, change of a thing fom one form and set to
another. The expression 'alteration' with reference to ~·
building means 'substantial' change, varying, change the ,
form or the nature of the building without destroying its
c identity". The meaning given to those two words show
that the expression 'materially aliered' means "a substan-
tial change in the character, form and the structure of the
building without destroying its identity". It means that the
nature and character of change or alteration of the building
D must be of essential and important nature. In Babu
Manmohan Das Shah v. Bishun Das, [1967] 1 SCR 836,
(AIR 1967 SC 643), this Court considering the expression
'material alterations' occuring in S. 3(1)(c), U.P.
(Temporary) Control of Rent and Eviction Act, 1947
observed;
E
"Without attempting to lay down any general defini-
tion as to what material alterations mean, as such, the
question would depend on the facts and circumstances of

("
each case, the alterations in the present case must mean
material alterations as the construction carried out by the
F respondent had the effect of altering the front and structure
of the premises." +
It is no doubt true that in the last part of this passage quoted above it
has been clearly stated that no definition could be drawn of the
material alteration but it will have to be decided on the basis of facts
G and circumstances appearing in each case but the material considera-
tion would be whether the construction carried out by the tenant alters
the front show or the structure of the premises and considering this
aspect of the law it was further observed:

"In determining the question the Court must address itself
H to the nature, character of the constructions and the extent
B.N. BHARGAVA v. HARSH WARDHAN [OZA, J.I 135

to which they make changes in the front and structure of A
the accommodation, having regard to the purpose for
which the accommodation may have been let out to the
tenant. The Legislature intended that only those construc-
tions which bring about substantial change illthe front and
structure of the building should provided a ground for
tenants' eviction, it took care to use the word "materially B
altered the accommodation". The material alterations
contemplate change of substantial nature affecting the
form and character of the building. Many a time tenants
make minor constructions and alterations for th.e convenient

r
use of the tenanted accommodation. The Legislature does
not provide for their eviction instead the construction so
made would furnish ground for eviction only when they
c
bring about substantial change in the front and structure of
, the building. Construction of a Chabutra, Almirah,
opening a window or closing a verandah by temporary
structure or replacing of a damaged roof which may be
leaking or placing partition in a room or making similar D
> minor alterations for the convenient use of the accommo-
dation do not materially alter the building as in spite of
such constructions the front and structure of the building
may remain unaffected. The essential element which needs
consideration is as to whether the constructions are sub-
stantial in nature and they alter the form, front and struc- E
ture of the accommodation."

) Here it has been observed that the essential element which needs
) consideration as to whether the construction are substantial in nature
and they alter the front elevation or the front and the structure of the
building itself and it is in the light of this that ultimately in this decision F
t what was constructed has been held not to be material alteration as it
was observed:

"The partition wall was made without digging any foun-
dation of the floor of the room nor it touched the ceiling
instead; it converting a big hall into two portions for its G
convenient use, it could be removed at any time without
causing any damage to the building. The partition wall did
not make any structural change of substantial character
either in the form or structure of the accommodation."

The question as to whether the construction is of a permanent nature H
136 SUPREME COURT REPORTS [1988] 2 S.C.R.
,l
or a temporary nature also was considered by this Court in the decision
A
quoted above and it was observed:
'"'-
"The High Court observed that the fact that a construction
is permanent or temporary in nature does not affect the
question as to whether the constructions materially alter
B the accommodation or not. We do not agree with this view.
The nature of constructions, whether they are permanent j
or temporary, is a relevant consideration in determining
the question of 'material alteration'. A permanent cons-
!ruction tends to make changes in the accommodation on a

1
permanent basis, while a temporary construction is on
temporary basis which do not ordinarily affect the form or
c structure of the building, as it can easily be removed
without causing any damage to the building."

It is thus clear that what is alleged to have been constructed in the '
present case, in the light of the test laid down by this Court in the
D decision referred to above, could not be said to be material alteration
in the premises in question. In Venkatlal G. Pittie &Anr. v. Mis Bright ~

Bros. (Pvt.) Ltd., 4 JT 1987 (3) SC 139 the question was not about
material alteration but the question was whether the construction
carried out by the tenant were permanent in nature and were snch
which has diminished the value of the property and further that" the ~
E construction have been made after encroaching on the land which was
not the part of the lease and in that context the question as to whether
the structures raised were permanent or temporary have been \
~

considered and the nature of the things as appeared in that case ~
apparently is of no avail so far as the case in hand is concerned as it was
observed in that case: (
F
"Two questions arise for consideration in these appeals- 1
(i) whether the structure constructed by the tenant in the
premises in question amounted to permanent structure
leading to the forfeiture of the tenancy of the tenant; (ii)
what is the scope and extent of the jurisdiction of the High
lr
G Court under Article 227 of the Constitution on questions of
facts found by the appellate bench of Small Causes Court."
....l,
In Babu Manmohan Das Shah's case, (supra) the question which was be-
fore this Court was not as to whether the construction made was such which
could be said to be a material alteration but the real question which
H was raised before the Court was whether it is necessary further to hold
B.N. BHARGAVA v. HARSH WARDHAN [OZA, J.) 137

that this construction diminishes the value of the accommodation A
although in the Section it was material alteratiun or such construction
which diminishes the value of the accommodation used but it was
contended that it will amount to and considering this aspect of the
matter in this judgment it was observed:
B
"As already stated, even if the alterations did not cause any
damage to the premises or did not substantially diminish
their value the alterations were material alterations and on
that basis alone the appellants were entitled to evict the
respondent."

It is thus clear that even this judgment is of no assistance so far as the C
present case is concerned. In the light of the discussions above and in
the light of the test laid down by this Court in Om Prakash's case, supra it is
clear that this construction of the balcony or Dochhatti which is a
wooden structure does not amount to material alteration which could
give a cause of action to the respondent landlord for filing a smt of D
eviction. No other question was pressed. In the light of the discussions
above therefore the appeal has to be allowed. It is therefore allowed.
The judgment and decree passed by the courts below are set aside and
the suit filed by the respondent is dismissed. In the circumstances of
the case parties are directed to bear their own costs so far as this Court
is concerned.
E
S.L. Appeal allowed.