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Damage caused by the tenant not ground for eviction if the value of building not decreased: High Court of Calcutta

A suit for eviction cannot be sustained merely because the damage was caused to the building without showing that the value of the building has been reduced. This was decided by the Hon’ble Justice Bibek Chaudhuri of Calcutta High Court while exercising appellate jurisdiction in the case ofSmt. Sarbati Debi & Ors. vs. Pratima Sharma & Ors. [Second Appeal No. 46 of 2011].

In this case, the plaintiff who is the owner of the aforementioned suit premises had rented it to the respondent to run a shoe shop. The plaintiff filed a suit on grounds of default payment, causing substantial damage to the suit premises and subletting. They pleaded that the damage caused by the respondent was done by fixing an iron safe on the main wall cutting the beam of the shop owned by the respondent. It was also argued that a false roof under the ceiling of the tenanted premises was erected without the permission of the plaintiff. After the decision was made in favor of the plaintiffs, the respondents appealed on the substantial questions of damage and subletting. 

The main issue considered by the Judge in the said case dealt with the correctness of judgement given by lower courts in decreeing the suit for eviction. It was concerned with the applicability of Clauses (o) and (m) of Section 108 of the Transfer of Property Act, 1882 which states that reasonable care must be taken by the tenant and non-compliance to this could lead to ejectment.

The court referred to the Supreme Court judgement in Rafat Ali vs. Sugni Bai [1999 1 SCC 133] where it was held “that all acts of damage do not amount to a ground for eviction and it is only those acts of waste which would very probably impair the building or its utility. The value of the building or the utility thereof should have decreased in a reasonable substantial degree and then only can it be said that the acts of waste and damage are likely to impair the value of the building”. 

The court observed that in the instant case there was no iota of evidence to prove that the construction of wooden roof or fixation of iron safe diminished the value of the suit shop. It further stated that in absence of such evidence it could not agree to the decision made by the lower court and the Act does not come into the picture. Keeping the above points in mind, the court decided in favor of the appellant concerning the first issue raised in the case.

The other major issue dealt was concerned with subletting the premises to another individual and the court proceeded to decide in favor of the plaintiff here. Ultimately the court directed the appellants to vacate the premises not on the ground of damage but on the ground of subletting.

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