Punjab-Haryana High Court
Sunder Dass And Anr. vs Avinash Chander Sood on 12 September, 1991
Equivalent citations: (1992)101PLR220
JUDGMENT G.C. Garg, J.
1. This is a tenants' revision petition against the order of ejectment passed against them from the shop in question on the ground that the building has become unfit and unsafe for human habitation.
2. Avinash Chander, respondent, filed an application for ejectment under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as 'the Act') of the respondents from the shop marked A.B.C.D.E.F.G. forming part of a bigger building having five shops, situated in Kotwali Bazar, Hoshiarpur, on the ground that the building had become unfit and unsafe for human habitation including the shop in question. On notice, the tenants denied the ground of ejectment and pleaded that the shop required minor repairs which could be effected by spending a meagre amount of Rs. 440/-. Another, application under Section 12 of the Act was filed by the tenants for permission to carry out repairs. Both the applications were disposed of by a common order by the Rent Controller. It was found that the shop had become unsafe for human habitation and the damage to the shop was beyond repairs. In view of this finding the application under Section 12 of the Act was dismissed and the application under Section 13 of the Act filed by the landlord was allowed and the tenants were ordered to be evicted. The tenants feeling aggrieved against the order of ejectment filed an appeal which was disposed of by the Appellate Authority by the order under challenge. The finding of unfit and unsafe for human habitation recorded by the Rent Controller was affirmed. The tenants, however, did not file any appeal against the order dismissing their application under Section 12 of the Act for repairs.
3. The only ground that survives for consideration in this revision petition is whether the shop in dispute had become unfit and unsafe for human habitation.
4. Mr. S. P. Jain, learned counsel for the petitioners vehemently contended that the findings recorded by the authorities under the Act were not sustainable. The authorities fell into an error in ordering ejectment of the petitioners and treating the shop in the shop in dispute as an integral part of the larger building consisting of five shops. The contention of the learned counsel was that though the other shops may be unfit and unsafe for human habitation but the shop in dispute being safe and fit for human habitation, ejectment of the petitioners could not be ordered. The contention of the demised shop should have been considered independently and ejectment could not be ordered on the basis that a larger portion of a bigger building of which the shop is & part had become unfit and unsafe for human habitation. The counsel also submitted that mere age of the building was no ground to order ejectment and where repairs could be effected, ejectment could not be ordered.
5. Learned counsel in support of his submission relied upon Piare Lal v. Kewal Krishan Chopra, 1988 (2) Rent C. R. 32 and Daulat Ram v. Sadhu Ram, 1990 (1) Rent C. R 34. Piare Lal's case (supra) has no application to the facts of the present case. In that case the High Court allowed the revision petition and set aside the order of the Rent Controller and the Appellate Authority because of its view that the falling down of the roof of one of the rooms afforded by itself a cause of action to the landlord to seek eviction of the tenant under Section 13 (3) (a) (iii) of the Act and this cause would subsist even if the tenant had repaired the roof under orders of the Rent Controller passed under Section 12 of the Act. The High Court had relied upon its decision in Sardarni Sampuran Kaur v. Sant Singh, (1982) 84 P. L. R. 449 for holding that even if the rest of the building was in good condition, the falling down of the roof of one room would constitute sufficient material to sustain landlord's claim under Section 13 (3) (a) (iii) of the Act for seeking eviction. During the course of judgment the Apex Court distinguished the decision in Sardami Sampurn Kaur s case, (supra) on facts. In the reported case, as observed by the Supreme Court, the admitted position was that except for the roof of one of the rooms falling down which as already noticed above, was ordered to be repaired by the Rent Controller, no other damage of the building was noticed. In these circumstances it was held that there was no scope for holding that a substantial or major part of the building had become unfit and unsafe form human habitation and order of ejectment was called for.
6. In Daulat Ram 's case (supra), the revision petition was accepted and the order of ejectment was set aside on the ground that the only defect which had been pointed out was that to last Khan of the shop in dispute was in a deteriorated condition and the tenants had given a support to it by placing a beam and but for the support the roof would have fallen. No other defect in any other part of the building had either been averred or proved on the record except that the age of the building and it was on this ground contended that the building had become unfit and unsafe for human habitation.
7. Learned counsel for the petitioners also contended that the landlord could not take benefit of his own wrong inasmuch as by not repairing Chaubaras on the first floor and allowing it to fall the petitioners could not be ordered to be ejected. I do not agree with the learned counsel for the petitioners. There is no basis in the second contention of the learned counsel. This was neither pleaded nor any issue was claimed. No question was put to the landlord when he appeared in the witness box in that behalf. If. can not thus be held that the landlord is trying to take advantage of his own wrong in this case. The other contention of the learned counsel is equally without merit. The landlord produced an expert G S Counsel A. W. 3 who gave his report, Exhibit A 6. The tenants also produced their expert, Devi Chand, PW-5. The Rent Controller as also the Appellate Authority after considering and appraising the entire oral and documentary evidence on record came to a firm conclusion that the shop in dispute had become unfit and unsafe for human habitation. Essentially, this is a pure finding of fact and there is no scope for interference. The submission of the learned counsel that ejectment has been ordered from the shop in dispute only on the ground that the bigger building of which the shop is a part had become unfit and unsafe for human habitation is not correct It has been found as a matter of fact that the shop in dispute is more than 100 years old and the foundation has depressed for various place" due to which vertical cracks through and through have developed m the walls to the extent of 3" wide and the walls have gone out of plumb. The shop m dispute is two Khan shop and half Khan of the front portion of the shop has already fallen and the remainine part of the root of the front Khan and the rear Khan was in a dilapidated and dangerous condition and could fall any moment it has again been found that the Chanbams on the shop in dispute have fallen. The expert, AW-3, produced by the landlord f detailed report, Exhibit A-6 pointing out the defects in the shop in question on account of which it became unfit and unsafe for human habitation AW-7, the site plan prepared by the said witness clearly indicates that through and through cracks have developed at least at 4-5 places m the shop in dispute. Ram Lal, RW 1 produced by the tenants admitted in his statement that Chaubara on the shop in dispute had fallen and that the shop was lying vacant since 1985. RW-2 also stated that a portion of the roof of the first Khan of the shop in dispute had fallen, it is thus difficult to agree with the contention of the learned counsel that ejectment of the petitioners was ordered only on the ground that demised premises, though in a good condition formed part of the larger building which had become unfit and unsafe for human habitation It has been categorically found that apart from the other shoos the shop in dispute had become unfit and unsafe for human habitation on the ground that a part of the roof of the first Khan had collapsed and there were 3" wide vertical cracks developed in the walls ; and that the chaubaras on the shop in dispute had fallen and that the electric wiring had become unserviceable; and that the electric connection had been disconnected by the electricity Department owing to the dilapidated condition of the building. The arches provided over the doors and windows had developed cracks and were not safe to withstand the load of the walls arid roofs coming over them. The wood of the windows and the doors had become unserviceable. Devi Chand, PW-5, the expert produced by the tenants, in his cross-examination admitted that the entire building and the shop in dispute had outlived its age. Even the Local Commissioner who was appointed to report about the condition of the building submitted his report, Exhibit A-1, and concluded that the building had become unfit and unsafe for human habitation.
8. Under the circumstances, it can not be said that the order of ejectment passed against the petitioners was not sustainable either infact or in law.
9. For the observations and reasons recorded above, the revision petition fails and the same is dismissed with costs. The tenant is, however, granted three months time to vacate the premises subject to' his depositing all arrears of rent and the rent for the future period with the Rent Controller within one month.