Punjab-Haryana High Court
Mulakh Raj And Anr. vs Jugraj Singh on 18 July, 2007
Equivalent citations: (2007)4PLR117
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This is tenants' revision petitioner under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, directed against the judgment passed by the Appellate Authority, whereby after reversing the order of the Rent Controller, the ejectment application of the landlord (respondent herein) has been allowed and the petitioners have been ordered to be ejected from the demised shop on the ground that the same has become unfit and unsafe for human habitation,
2. In the year 1988, the respondent-landlord filed the instant ejectment application against the petitioners-tenant for ejecting them from the shop in question on the grounds of non-payment of rent and the demised shop having become unfit and unsafe for human habitation. It was the case of the landlord that die shop in dispute being an integral part of the whole building, including other shops and chobaras on the first floor, which is in dilapidated condition and has become unfit and unsafe for human habitation. It was averred that the shop can fall at any time, as there are number of cracks in the walls, the floor and the roof of the shop in dispute. The wooden battens of the shop were alleged to have been eaten by ants and motes. The chobara on the first floor of the shop was stated to be in dilapidated condition.
3. The petitioner-tenant contested the said petition. On the first date of hearing, the arrears of rent along with interest and costs, as assessed by the Rent Controller, was tendered. On this, the ground of the non-payment of rent did not survive. Regarding the shop in dispute having become unfit and unsafe for human habitation, it was stated that the shop is not an integral part of the whole building, including the other shops and chobaras. It was also stated that the shop was in a good condition; and quite safe and fit for human habitation. It was alleged that the ejectment application was filed with a motive to increase the rent. It was disclosed that earlier also, in the year 1984, the landlord had filed an ejectment application on various grounds, including the ground that the building had become unfit and unsafe for human habitation. Subsequently, the landlord effected a compromise in the said ejectment application and got the rent of the demised shop enhanced from Rs. 700/- to Rs. 2,700/-per annum and thereafter, he got the said ejectment application dismissed as withdrawn. Therefore, it was pleaded that the instant ejectment application is liable to be dismissed.
4. In Support of this case, the landlord examined himself as AW1, Pritam Singh, the Building Expert, as AW.2, who proved his report and site plan as Ex. A1/X and Ex. A2/X, The landlord also examined Chaman Garg, a photographer, as AW2, who proved the photographs Ex. A1 to Ex. A25 and one Kashmiri Lal as AW4. On the other hand, the tenants examined Deep Chand Goyal as RW1, who was counsel for the landlord in the previous ejectment application, and also placed on record copy of compromise between the parties in the earlier ejectment application as Ex. R1. They also examined Shri R.C. Verma, the Building Expert, as RW. 2, who proved his report Ex. R3 and site plan Ex. R4, and Ravi Goyal, Advocate, as RW3. One of the petitioners, namely Vijay Kumar, also appeared as RW4.
5. The Rent Controller, after considering and appreciating the evidence led by both the parties, dismissed the ejectment application, while coming to the conclusion that the demised shop has not become unfit and unsafe for human habitation. This conclusion was arrived at on the basis of the following fmdings:
(a) That earlier, the landlord filed the ejectment application against the tenants on various grounds, including the ground that the demised premises had become unfit and unsafe for human habitation and in the said ejectment application, the landlord effected a compromise with the tenants and enhanced the rent from Rs. 700/- to Rs. 2,700/- per annum and then withdrew the ejectment application on 5.12.1984. Thereafter, the instant second, ejectment application was filed only after about four years and during the said period, condition of the shop in dispute had not worsened so much as it had become unfit and unsafe for human habitation. It has also come in evidence that the landlord had effected compromise with his other tenants also and had increased the rate of rent of the tenanted shops.
(b) That the demised shop is not integral part of the whole building.
(c) That the landlord has produced only two photographs of the disputed shop i.e. Ex. Al and Ex. A2. These photographs do not, in any manner, show the shop having become unfit and unsafe for human habitation. These are only of the roof. Ex. Al shows that few tiles of the roof have been damaged and Ex. A2 shows that only one of the ballas has developed little cracks, which also seems to be superficial. The other photographs Ex. A3 to Ex. A25 do not relate to the shop in dispute, but they relate to other part of the building;
(d) That report of AW2 Pritam Singh, the Building Expert, has been controverted by RW2 R.C. Verma, the Building Expert, examined by the tenants, who gave his report Ex. R3. His report was found to he more reliable and trust worthy than the report given by Pritam Singh, who in his cross-examination, while appearing as AW2, has admitted that there is no crack in the shop in question. He stated that the cracks are only on the first floor of the chobara, which is not the part of demised premises. According to him, there is only one crack in the balla in the roof of the shop in question;
(e) That in the adjoining shop, the brother of the landlord started business very recently and the same shop is also in good condition.
6. On appeal, the Appellate Authority has reversed the order of the Rent Controller and passed the order of ejectment against the petitioners-tenants while coming to the conclusion that the demised shop, which is integral part of the building, has become unfit and unsafe for human habitation. While coming to this conclusion, the Appellate Authority has placed reliance upon the report Ex. A1/X given by AW2 Pritam Singh, the Building Expert, who is found to be more qualified and professionally experienced. Hence this revision petition.
7. Learned Counsel for the petitioners-tenants submits that the Appellate Authority has committed grave illegality while coming to the conclusion that the demised shop is integral part of the whole building, including the other shops and chobara on the first floor, which as become unfit and unsafe for human habitation. In this regard, the Appellate Authority has relied upon the report of AW2 Pritam Singh, Building Expert, and the photographs Ex. Al to ExA25, while coming to the conclusion that the whole structure has become unfit and unsafe and the ground floor cannot be extradited and cannot be described as safe and fit. Learned Counsel submits that the respondent-landlord did not lead any evidence to prove the fact that the shop in dispute is integral part of the whole building, rather it has come in evidence that the chobara as well as the other shop on the first floor were constructed separately on different times. Therefore, the Appellate Authority has erred in law while proceeding on the assumption that the disputed shop was integral part of the whole building. Learned Counsel for the petitioners-tenants further submits that merely because the roof of the chobara on the first floor is in dilapidated condition, it cannot be said that the entire building has become unfit and unsafe for human habitation, until and unless it is proved that falling down of the roof of the first floor will damage and weaken the condition of the entire building. He submits that there is no evidence on the record, which suggests that the shop in dispute or any part of its portion has become unfit and unsafe for human habitation. He submits that merely because there are some cracks in the chobara on the first floor and the adjoining shops, which are not part of the rented shop, the shop in dispute cannot be said to have become unfit and unsafe for human habitation. He submits that even if it is assumed that the disputed shop is integral part of the whole building, even then there is no evidence that the substantial portion of the whole building has become unfit and unsafe for human habitation. Learned Counsel for the petitioners has submitted that without coming to such conclusion, no ejectment order can be passed against the tenants. Learned Counsel further submits that the Appellate Authority has wrongly relied upon the report of Pritam Singh and the photographs pertaining to the other shops and chobara on the first floor, while coming to the conclusion that the disputed shop has become unfit and unsafe for human habitation. According to the learned Counsel, the finding recorded by the Appellate Authority without meeting the reasoning given by the Rent Controller, is totally perverse and against the evidence on record, which is liable to be set aside and the order of the Rent Controller is to be restored.
8. On the other hand, learned Counsel for the respondent-landlord submits that there is no illegality and perversity in the finding recorded by the Appellate Authority and in the revisional jurisdiction, the same cannot be interfered. He submits that the Appellate Authority has rightly come to the conclusion that the shop in dispute is integral part of the whole building and when the same has become unfit and unsafe for human habitation, the shop in question is also liable to be vacated on the ground of the same having become unfit and unsafe for human habitation, the shop in question is also liable to be vacated on the ground of the same having become unfit and unsafe for human habitation.
9. After hearing the arguments of learned Counsel for the parties and going through the impugned judgment, passed by the Appellate Authority, as well as the order passed by the Rent Controller, and persuing the record of the case, I am of the opinion that this petition filed by the tenants deserves to be allowed and the order passed by the Rent Controller is liable to be restored.
10. Though the respondent-landlord has taken plea in the ejectment application that the disputed shop is integral part of the whole building, consisting of other shops and chobara on the first floor, but he has not led any evidence to prove the fact that the entire building including the demised shop is part and parcel of one building. AW2 Pritam Singh, the Building Expert, produced by the respondent-landlord, has categorically ; stated in his cross-examination that the ground floor of the building is more than 40 years old, whereas front portion and first storey was newly built. It was further ctated that back portion is much older than the front portion. He has not stated in his statement that the disputed shop is the integral part of the whole building. His statement indicates that the building was constructed at different times in different portions. If that is the position, then it cannot be said that the demised shop is integral part of the whole building. It has also come in the evidence that the different shops are in occupation of different persons. Regarding some of the shops, the ejectment applications were filed on the ground that the same has become unfit and unsafe for human habitation and subsequently, the matter was compromised and on enhancement of rent, those applications were got dismissed as withdrawn. It has also come in evidence that in the adjoining shop, the brother of the landlord has started business recently and the said shop is in good condition. Even otherwise, there is no evidence that the substantial portion of the whole building has become unfit and unsafe for human habitation. On the pleadings, issue No. 3 was framed as to whether the shop in question is an integral part of the whole building and the Rent Controller, after taking into consideration the evidence available on the record, recorded a finding of fact that the shop in dispute is not integral part of the building, but the Appellate Authority has reversed the said finding, without giving any reasoning. Therefore, in my opinion, there is no evidence available on the record, on which the finding on issue No. 3 can be recorded in favour of the respondent-landlord to the effect that the shop in dispute is integral part of the whole building.
11. If the shop in dispute is taken to be separate unit, then there is no evidence available on the record to prove that it has become unfit and unsafe for human habitation. Undisputedly, out of the photographs Ex. A1 to Ex. A25, only two photographs i.e. Ex. A1 and Ex. A2 belong to the disputed shop. According to the photograph Ex. Al, only few tiles of the roof have been shown to have been damaged and according to photograph Ex. A2, one bala is shown to have developed a little crack, All the remaining photographs relate to the other portion of the building. Similar is the report Ex. A1/X, given by Pritam Singh about the other portion of the building. In his statement, he has admitted that the cracks, which have been shown in the photographs, are only minor in nature and the same are not in the shop in dispute, but in other shops and the chobara. He has further admitted in his statement that there is no crack in the shop in question. From the reading of the report Ex. A1/X, it cannot be inferred at all that the shop in dispute has become unfit and unsafe for human habitation. Similar is the opinion given by the expert produced by the tenants. From the evidence, it also appears that the landlord has filed the ejectment application with an object to enhance the rent. In the year 1984, after getting the rent enhanced from Rs. 700/- to Rs. 2,7007- per annum, he got his earlier ejectment application dismissed as withdrawn. In that order, it was also agreed that the tenants would carry out the repairs in the shop. Consequently, the tenants had carried out the repairs and renovated the building. The appellate Authority has taken adverse inference of this fact on the ground that at the time of inspection of the shop by Pritam Singh, he noticed that the tenants had repaired the cracks with cement and plaster casting and white washed within about six months. In my opinion, such inference could not be drawn in the instant case, particularly when in the earlier compromise, after increasing the rent, the tenants were permitted to carry on repairs in the shop. Thus, in my opinion, the Appellate Authority has illegally reversed the well reasoned order, passed by the Rent Controller, without meeting the reasoning given by the Rent Controller.
12. In view of the above, this revision petition is allowed; the impugned judgment passed by the Appellate Authority is set aside and the order of the Rent Controller, dismissing the ejectment application filed by the respondent-landlord, is restored.