Punjab-Haryana High Court
Vishwa Mittar vs Manohar Lal Makkar on 26 May, 2004
Equivalent citations: (2004)138PLR452, 2004 A I H C 4107, 2004 HRR 2 344, (2004) 3 PUN LR 452, (2004) 2 RENCR 177, (2004) 2 RENTLR 539
JUDGMENT M.M. Kumar, J.
1. This is tenants petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') Challenging concurrent findings of facts recorded by both the Courts below holding that the demised premises has become unfit unsafe for human habitation. The Rent Controller as well as the Appellate Authority has recorded the afore-mentioned findings and had ordered ejectment of the tenant-petitioner on that ground.
2. Brief facts of the case necessary for deciding the controversy raised in this petition are that the tenant-petitioner Mohan Lal (now represented by his legal representatives) was inducted in the demised premises on 27.9.1975 vide rent note Ex.AW6/l at a monthly rent of Rs. 100/- p.m. On 4.9.1984, the landlord respondent filed an ejectment petition against the tenant-petitioner setting up the grounds that the building has become unfit and unsafe for human habitation and bonafide personal necessity. He prayed for his ejectment as these are the grounds provided by Sections 13(3)(a)(ii) and 13(3)(a)(iii) of the Act. The Rent Controller accepted the plea of the landlord-respondent and ordered ejectment of the tenant-petitioner vide his order dated 21.10.1986 and the Appellate Authority dismissed his appeal on 16.4.1996.
3. It is appropriate to mention that the landlord-respondent has filed an application being CM. No.8679-CI of 1996 in this Court with a prayer that copies of the orders dated 27.5.1996 Ex.Al and Ex.A2 passed against one Jiwan Dass and Lal Singh may also be taken into consideration while deciding the instant petition. However, the application was opposed by filing reply by the tenant-petitioners on 3.9.1996. Another application being C.M. No.5273 CII of 2003 was also filed to place on record Ex.A3 and A4 showing that the appeal filed against the orders Annexure A/1 and A/2 was dismissed by the Appellate Authority. The Civil Revision Petitions filed against the aforementioned order being C.R. No.5026 and 5027 of 2000 'have been placed on record by the tenant-petitioners which are Annexures T/1 and T/2. A perusal thereof shows that the ground of personal necessity of the landlord-respondent against those tenants was upheld and the petitions filed by the tenant-petitioner in this court being C.R. No.5026 and 5027 of 2000 were not pressed. The Appellate Authority firstly considered the additional evidence adduced by the tenant-petitioner before it and concluded that the additional evidence did not help in determining the issue involved.
4. On the question regarding condition of the building, the Appellate Authority referred to the statement of AW-1 Shri S.C.Vermani who had concluded that the building was unsafe and unfit for human habitation. The Appellate Authority also agreed to the aforementioned view while accepting the conclusion reached by the Rent Controller. The observations made by the Appellate Authority in this regard read as under:-
" As per his report, he inspected the building in question thoroughly and found that the age of the building is about 100 years. It is constructed of Nanak Shahi bricks. Walls of the building are mostly build in old small size pacca bricks also mixed with nanak shahi bricks with patch repairs, carried out subsequently from time to time. The morter used in the wall had lost its adhesive power and strength. The walls of the building in question are building [sic? buldging]. There were cracks varying from 1.8" to 1" in width and 2' to 6' in length. He also found disintegration, decays, damges and cavities at certain places on the wall. There was also dampness inside lower portion of the wall. The roofs were found to consist of wooden planks mixed with strips supported by wooden battens and beans. There was breakage and dam,ages in the wood-work of the roof when he inspected the building and the wood work was effected by termites and moth etc. at certain places. The top of the roof of the first floor is kacha with mud. There were signs and steaks of water marks alongwith the inside faces of the wall and underneath the roof of the first floor indicating therein that the roof was leaking during the rain. The floor of the building was found by Mr. Virmani as badly sinking and worn off. The staircase was also in a very bad condition with its number of teats broken and damages. The parapet at the top of the roof damages and broken places. Considering all these points, he came to the conclusion that the building in question was not fit and safe for human habitation "
5. The Appellate Authority then referred to the statement of Shri Ram Lubhaya, an Expert produced by the tenant-petitioners. Holding that Shri Ram Lubhaya was not an Expert, the Appellate Authority rejected his report and accepted the report of Shri S.C.Vermani Ex.AWl/1. Various reasons given in respect of acceptance of the report read as under:-
" Here we have got a testimony of an expert Mr. S.C.Vermani whose qualifications as an Engineer runs into one full page and as per his report which has not been assailed on any material assertions that the age of the building is 100 years. It is constructed of Nanakshahi bricks. Some repairs no doubt have been carried out which is even admitted by him but inspite of that the building is still unsafe and unfit for human habitation. The morter used in the wall had lost its adhesive power and strength. The other defects found by him in the building had already been narrated by me and requires no repetition. His report has not been rebutted by any convincing and cogent evidence on the record. In his cross-examination also, nothing has come out which may cause any doubt about the veracity of his statement. He has with stood long and searching cross-examination in a fairly and satisfactory manner "
6. A detailed reference has also been made to the statements of various other witnesses of the parties. The testimonies of some of the witnesses of the tenant-petitioner have been discarded on the ground that they were interested being tenants of the landlord-respondent in the same building. The eventual conclusion recorded by the Appellate Authority reads as under:-
"From the evidence led by the landlord/respondent and the admissions made by the appellant and his witnesses this fact stands established conclusively that the demised premises is made of nanakshahi bricks and that age of the building is not less than 100 years and from the report of Mr. S.C.Vermani, Retired Executive Engineer which has rightly been relied upon by the learned Rent Controller, it has also been proved that the walls of the building had developed cracks which are bigger enough in size to come to the conclusion that the building in question has become unfit and unsafe for human habitation. Any admission made by the landlord about the fitness of the building at the time of renting out the premises to the appellant after carrying out certain minor repairs in no way makes the building safe and fit for human habitation."
7. Shri M.L.Sarin, learned counsel for the tenant-petitioners has argued that a reference to the ejectment petition dated 4.9.1984 filed by the landlord-respondent would show that necessary ingredients of Section 13(3)(a)(iii) of the Act have neither been pleaded nor proved. According to the learned counsel it was necessary for the landlord-respondent to plead that the building has become unfit and unsafe for human habitation and the same is 'required' by him to carry out any building work at the instance of government or local authority or any Improvement Trust under some improvement or development scheme. According to the learned counsel the view taken by the Full Bench of the Court in the case of Lalit Behari v. Sant Lal,1 A.I.R. 1974 Punjab and Haryana 339 cannot be deemed to be the correct view at the Supreme Court in the case of Shadi Singh v. Rakha,2 J.T. 1992(3) S.C. 152 has taken a contrary view. The learned counsel maintains that it has now been held that the landlord-respondent should have pleaded that the building is required by him to carry out any building work at the instance of the government or local authority or any Improvement Trust in some improvement or development scheme and the expression "it has become unsafe and unfit for human habitation" cannot be read in isolation. The Full Bench, however, has taken the view that the expression independent of any other expression used in Section 13(3)(a)(iii) of the Act. The learned coulsel has made a reference to para 2(i) of the plaint and has argued that the afore-mentioned ingredients have not even been pleaded that the building was required to carrying out building work at the instance of government or local authority. Therefore, according to the learned counsel the ejectment of the tenant-petitioner could not have been ordered. The learned counsel has further argued that in 1975 the building has been effectively rented out to the tenant-petitioner after it has been rendered fit for human habitation. Reference in this regard has been made to various recitals in the rent note dated 27.9.1975 Ex.AW6/l showing that a new roof was placed and numerous repairs to the satisfaction of the tenant-petitioner were allowed to be carried and then the possession of the demised premises was handed over to the tenant-petitioner. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Shadi Singh (supra). The learned counsel has further argued that earlier to the execution of the rent note Ex.AW6/l on 27.9.1975, the father of the petitioner was the tenant @. Rs.20/- p.m. in the same premises and the tenant-petitioner allowed the rent to be raised five times on account of the fact that the new roof was placed and numerous repairs were effected by making the demised premises fit and safe for human habitation. He has made reference to the averments made in corresponding para 2 of the reply filed by the tenant-petitioner showing that the demised premises is standing as a rock and its roof is newly built. The walls have also been plastered and the flooring has also been repaired after the enhancement of the rent from Rs.20/- to Rs. 100/- p.m. Referring to the replication filed by the landlord-respondent. The learned counsel has pointed out that in 1986 the stand taken was that the building could fall at anytime and any mishap would be at the risk and responsibility of the tenant-petitioner. He has also drawn my attention to the observations of the Appellate Authority in para 9, the learned counsel has argued that all these observations are conjectural in nature because recital in the rent note expressing the. building to be fit for human habitation could not be discarded on the basis of ipse-dixit of the Appellate Authority. Such like recitals are stated to be conjectural because according to the learned Appellate Authority are made in order to fetch handsome rent and no landlord is likely to accept that the building was in a dilapidated condition at the time of renting out the same. The learned counsel has also pointed out that the statement of AW-6 has been completely mis-read as the landlord-respondent has admitted that the building was not only built of nanakshahi bricks but it was built of the standard size bricks also. The observation that the building is built of nanak shahi bricks alone made by the Appellate Authority could not be accepted because it is contrary to the record. The learned counsel has also made reference to the photographs Exs.RW/9/8 to RW9/13. According to the learned counsel the admission is best piece of evidence as has been held by the Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others,1 A.I.R. 1960 S.C. 100. Learned counsel has also argued that merely because the demised premises have developed some cracks or it is 100 years old would not itself establish that it has become unfit and unsafe for human habitation. In support of his submission, the learned counsel has placed reliance on three judgments of this Court in the cases of Kewal Chand Jan and Anr. v. Jiwan Kumar Kaushal,2 (1989-2)96 P.L.R. 410; M/s Bhim Sain Nardosh Kumar and others v. Raj Pal,3 (1992-2)102 P.L.R. 683 and Sohan Lal and others v. Amar Nath and others,4 (1992-2)102 P.L.R. 273 and argued that in all these cases despite the fact that the buildings were 56 years old or made of nanakshahi bricks showing the age of the building or even if the building is 90- years old it would be wrong to conclude that it is unsafe and unfit for human habitation. Learned counsel has maintained that even otherwise the demised premises is a Tabela (stable for horses) which is being used by the tenant-petitioner for repairing rickshaws. Therefore, the learned counsel has argued that the findings recorded by both the Courts below deserve to be reversed.
8. Learned counsel has also pointed out that reliance of the landlord-respondent on Annexures A/1 to A/2 would be unwarranted as application namely CM No.8679 of 1996 for placing on record Annexures A/1 and A/2 as well as CM. No.5273-CII of 2003 placing on record A-3 and A-4 deserve to be rejected because the tenant-petitioner was neither a party to the orders passed in Annexures A/1 to A/4 and, moreover, these orders have finally merged into the orders Annexures T/l and T/2 which are copies of the orders passed by this Court. Referring to the orders passed by this Court as T1 and T2, the learned counsel has argued that this Court has accepted only the ground of bona-fide personal necessity of the landlord-respondent and has not gone into the question with regard to dilapidated condition of the building as to whether it was unfit and unsafe for human habitation. He has further pointed out that the report of the expert nowhere shows that it was the one building and the demised premises is part thereof.
9. Shri B.R.Mahajan, learned counsel for the landlord-respondent has argued that judgment of the Full Bench of this Court in Lalit Bihari's case (supra) would continue to govern interpretation of Section 13(3)(a)(iii) of the Act and the expression require could not be interpreted by referring to the provisions of Section 13(4) of the Act. The learned counsel has pointed out that after the judgment of the Supreme Court in the case of Shadi Singh (supra) the matter was referred to a Division Bench of this Court for resolving the issue whether the interpretation given to Section 13(3)((a)(iii) of the Act as interpreted in the case of Wazir Chand v. Swaran Kar Sahab,5 (1990-2)98 P.L.R. 173 would govern the issue or some different interpretation as inferable from the judgment in Shadi Singh's case (supra) has to be accepted. The Division Bench in the case of Ram Sarup v. Din Dayal,6 (1996-2)113 P.L.R. 770 has resolved the issue. According to the learned counsel the Division Bench after a detailed analysis of the whole case law on the question raised before it has concluded that the judgment in Shadi Singh's case (supra) did not lay down the proposition of law that after obtaining possession of the building or land under Section 13(3)(a)(iii) of the Act, the landlord is required to construct a new building after demolishing the old structure and restore its possession to the tenant. It further held that the judgment in Wazir Chand's case (supra) had laid down the correct law and that the interpretation for interpreting Section 13(4) of the Act should not be followed. According to the learned counsel the landlord-respondent is not under an obligation to plead something more except stating in the ejectment application that the building is unfit and unsafe for human habitation because there is no requirement to state that the building is required for repair or for any other specified eventuality stated in the Section. In view of the above submission, the learned counsel has maintained that the judgment of the Full Bench of this Court in the case of Lalit Bihari (supra) would continue to govern the issue apart from the judgment of the Supreme Court in Wazir Chand's case (supra). The learned counsel has also argued that in any case the principles laid down in the Code of Civil Procedure, 1908 cannot be invoked in a proceedings of the nature involved in the instant case before the Tribunal because the proceedings before the Rent Tribunal are summary in nature. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Mange Ram v. Gurdial Singh,1 (1989-2)96 P.L.R. 105 to argue that the landlord-respondent did not require to give reasons for the building being unfit and unsafe for human habitation.
10. Learned counsel has then argued that the demised premises is a part of one building and from the other portions of the building the ejectment order has already been passed. He has placed on record copies of the ejectment order dated 27.5.1996 passed in two cases by the Rent Controller, Amritsar on the application filed by the landlord-respondent. Both the tenants Jiwan Lal and Lal Singh have been ordered to be ejected and their appeals have been dismissed by the Appellate Authority and the orders dismissing the appeals have been placed on record as Annexures A/3 and A/4. Referring to various portions of these judgments, the learned counsel has maintained that it is two and half storey building and the same has become dilapidated. He has also referred to the report of the expert Shri S.C.Vermani AW1/1 to substantiate his argument that the demised premises is part of the two and half storey building and it has lost its utility having become unfit and unsafe for human habitation. The learned counsel has also argued that the recitals in the rent note has been considerably diluted wherein it has been recorded that new roof has been built by replacing the old roof. According to the learned counsel as per the report of the expert some minor repairs had taken place and still the building has become unfit and unsafe for human habitation. He has also referred to photographs RW9/11 to RW9/13 showing various portions of the demised premises as well as the demised building in a dilapidated condition.
11. Learned counsel has controverted the argument of the learned counsel for the tenant-petitioner that Gian Chand father of Mohan Lal was the tenant earlier to the induction of Mohan Lal on 27.9.1975. He has referred to the statement of AW 6 Manohar Lal who has stated that the demised premises was on rent with Wazir Chand which is contrary to the claim that it was on rent with the father of the tenant-petitioner. On that basis the learned counsel has argued that the statement made by the tenant-petitioner is factually incorrect.
12. Another argument raised by the learned counsel is that nature of use would not affect the consideration whether the building has become unfit and unsafe. The learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Meja Singh v. Karam Singh,8 (1981)83 P.L.R. 386 and argued that where the building was being used for keeping milch animals and for selling milk there this Court has held that condition of the dilapidated building cannot be determined by the nature of its use or by merely stating that only animals are kept there. He has also pointed out that the landlord is not required to wait till the building actually falls and once there is a reasonable apprehension in the mind of any reasonable person about the dilapidated condition of the building that it is not safe to continue to live in the building then the ejectment order has to follow. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Shakuntla Devi v. Daulat Ram,9 (1967)69 P.L.R. 251 and Sunder Doss v. Avinash Chander Sood,10 (1992-1)101 P.L.R. 220. He has then argued that there are concurrent findings of facts recorded by both the Courts below and this Court should not interfere with the conclusion of the Courts below. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case Dev Kumar v. Smt. Swaran Lata and others,11 (1996-2)113 P.L.R. 391.
13. Having heard the learned counsel at a considerable length. I am of the view that the judgment of the Supreme Court in Shadi Singh's case (supra) is not an authority for the proposition that after obtaining possession of the building on rent under Section 13(3)(a)(iii) of the Act, the landlord is required to construct a new building after demolishing the old structure and restore its possession to the tenant. The word 'requires' used in the section has to be read independently of the expression 'unfit and unsafe for human habitation'. The aforementioned view has been formulated by a Division Bench in Ram Sarup's case (supra) constituted after the judgment in Shadi Singh's case (supra) was delivered by the Supreme Court. The aforementioned view is discernible from paragraph 22 of the judgment of the Division Bench which reads as under:-
"On the basis of above, we hold that the decision in Shadi Singh's case does not lay down a proposition of law that after obtaining possession of the building or land under Section 13(3)(a)(iii) of the Punjab Act or Section 13(3)(c) of the Haryana Act, the landlord should construct a new building after demolishing the old structure and restore its possession to the tenant. We hold that the judgment of the Supreme Court in Wazir Chand v. Swarankar Sabha (supra) (1990-2) P.L.R. 273 lays down the correct law and it should be followed for interpreting Section 13(4) of the Punjab Act and Section 13(6) of the Haryana Act. We also hold that the tenant is not entitled to restoration of possession under Section 13(4) of the Punjab Act or Section 13(6) of the Haryana Act where the landlord obtains possession of a tenanted building or land under Section 13(3)(a)(iii) of the Punjab Act or Section 13(3)(c) of the Haryana Act and constructs a new building after demolition of the old structure."
14. On the basis of statutory interpretation and precedents, it cannot be concluded that the landlord-respondent was required to plead that the building has become unfit and unsafe for human habitation which is required by him to carry out any building work at the instance of Government or local authority or any Improvement Trust under some improvement or development scheme. Therefore, the statement made by learned counsel for the landlord-respondent that the interpretation given to Section 13(3)(a)(iii) of the Act by a Full Bench of this Court in Lalit Bihari's case (supra) would govern the issue, deserves to be accepted. If the facts of the present case are examined in the light of the law laid down by the Division Bench in Ram Sarup 's case (supra), then no doubt is left that the landlord-respondent has pleaded all the necessary ingredients to succeed in ejecting the tenant-petitioner on the ground of the building having become unfit and unsafe for human habitation.
15. Even otherwise, the law of pleadings would not be applicable to the proceedings before a Tribunal because the proceedings before a Tribunal are summary in nature. In this regard reliance could be placed on the judgment of this Court in Mange Ram's case. (supra) where similar plea was raised and this Court held that it was sufficient for the purpose. I am further of the view that both the Courts below have found it as a fact that the building has become unfit and unsafe for human habitation. Ordinarily, this Court would not interfere in the findings of facts unless it is shown that there is a grave irregularity resulting into injustice to a party. There is misreading of evidence as pointed out by Mr. Sarin by ignoring the statement that the building is made of standard bricks also would not result into any material difference because a number of other witnesses have stated that the building has become unfit and unsafe for human habitation; it is made of Nanak Shahi bricks and is over 90 years old. In other words, there is sufficient evidence on record to conclude that the building is in a dilapidated condition and is not fit for human habitation. It is well settled that this Court would not sit as a Court of Appeal and re-appreciate the evidence for the purposes of concluding that another view is possible. Moreover, under Section 15(5) of the Act, the jurisdiction of this Court is supervisory and not appellate. Therefore, the findings being based on evidence cannot be set aside.
16. There is no evidence as suggested by learned counsel for the tenant-petitioner that the building was ever given on rent by the landlord-respondent to the father of the tenant-petitioners. On the contrary, it has come in the statement of AW-6 Manohar Lal that earlier the demised premises was on rent with one Wazir Chand. Therefore, the argument raised on behalf of the tenant-petitioners that the building was vacated by his father and he was reinducted as a tenant at a raised rent of Rs. 100/- is liable to be rejected being factually incorrect.
17. For the reasons recorded above, this petition fails and is dismissed with costs of Rs. 10,000/-. The tenant-petitioners herein are, however, granted three months' time to hand over the vacant possession of the demised premises to the landlord-respondent. They shall deposit the arrears of rent within a period of 15 days and shall keep on paying the rent in advance on or before 10th of every month.