Punjab-Haryana High Court
Surinder Singh Babra vs Bhushan Kumar Sharma on 22 April, 2003
Equivalent citations: (2003)135PLR104
Author: Amar Dutt
Bench: Amar Dutt
JUDGMENT Amar Dutt, J.
1. The petitioner, through this petition, seeks to challenge the judgment dated 26.11.1981 passed by the Appellate Authority, Amritsar, by which the order passed by the Rent Controller, Amritsar on 9.6.1981 in his favour was reversed and petition for ejectment of Bhushan Kumar Sharma respondent was dismissed.
2. The petitioner had moved an application for ejectment of the respondent asserting that except one room of the entire ground floor of Property No. 2361/III-28, Bagh Rama Nand, Gali No. 3, Amritsar had been rented out to the respondent on a monthly rent of Rs. 30/-. The tenancy had been terminated by a valid notice dated 9.4.1976. The ejectment of the respondent was sought on the grounds that the premises had become unfit and unsafe for human habitation as the R.B. Slabs of roof thereof have developed cracks and rainy water starts leaking percolating therefrom and that the walls are cracked and the whole structure is in the imminent danger of falling down and that the respondent is guilty of such act and conducts which amount to nuisance to the occupants of the adjoining building and the petitioner.
3. The ejectment petition was contested and the relationship of the landlord and tenant between the parties was denied. It was asserted that the respondent is a tenant of Puran Chand, who alone has a right to file this petition. All other averments made in the application were denied. The application was also contested on the ground that the same was neither signed nor verified by the petitioner and that Surinder Singh Babara has not given any power of attorney to Raj Kumar.
4. After the filing of replication, from the pleadings of the parties, the following issues were framed:-
1. Whether there exists a relationship of landlord and tenant between the parties? OPA .
2. Whether the application has been verified, signed and instituted by a duly authorised person on behalf of the petitioner? OPA
3. Whether the respondent is tenant under Puran Chand in the demised premises? OPR 4 Whether the demised premises have become unfit and unsafe for human habitation? OPA
5. Whether any amount in excess of rent actually due from the respondent has been realised by the petitioner ? If so its effect? OPR
6. Whether the respondent is guilty of such acts which amounts to nuisance to the occupiers of the adjoining building and petitioner? If so its effect? OPA
7. Relief.
5. Parties had led evidence and after taking the same into consideration, the Rent Controller, Amritsar decided issue Nos. 1 and 3 in favour of the petitioner holding that the relationship of landlord and tenant existed between the parties. Issue No. 2 was held to be redundant as the same being superfluous needs no consideration and adjudication. Issue No. 4 was decided in favour of the petitioner. While deciding issue No. 5, the Rent Controller came to the conclusion that the respondent had spent a sum of Rs. 927-20P on the repairs of the demised premises, which had not been adjusted and after observing this relegated the respondent to seek his remedy to recover this amount in accordance with law. Issue No. 6 was riot pressed and, therefore, decided against the petitioner. The result was that the ejectment application was allowed. The Appellate Authority, Amritsar reversed the findings in relation to issue No. 4, with the result that the ejectment application was dismissed.
6. On behalf of the petitioner, it is submitted that two experts were produced before the Courts below by the parties. While the petitioner had produced Shri Harbans Singh as a AW1, the respondent had examined Sh. S.C. Vermani as RW3. No doubt, both the experts have given divergent opinion about the condition of the property in dispute at the time when the matter came up for adjudication with Harbans Singh coming to the conclusion that the property was unfit and unsafe for human habitation while S.C. Vermani RW3 took the position, which is diametrically opposite to the view taken by Harbans Singh asserting that the building was fit and safe for human habitation. Learned counsel for the petitioner states that while appreciating the statements of the two experts, the Appellant Authority has lost sight of the fact that no question has been put to Harbans Singh in cross-examination to challenge the conclusions arrived at by him and, therefore, there was no ground for the Appellate Authority to reverse the well considered judgment of the trial Court.
7. Learned counsel for the respondent, however, submitted that the appellate authority's having after appreciation of evidence come to the conclusion that the building was fit for human habitation, this Court would not re-appraise the evidence and reverse the view taken by the appellate authority to the effect that the condition of the building was not such that it could be categorised as unfit and unsafe for human habitation and, therefore, the view taken by it calls for no interference.
8. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the record.
9. On perusal of the record, it is clear that there is no specific challenge to the portion of the statement of Harbans Singh wherein he opined about the existence of cracks in the walls. From the record, it is also clear that regarding the second floor of the same building, which was occupied by one Harbans Singh, the finding of the trial Court regarding the same being fit for human habitation, has not been upset by the appellate authority, which had otherwise directed eviction on other ground. In this view of the matter, especially in view of the fact that mere existence of cracks by themselves would not per se warrant a finding to the effect that the building was unfit and unsafe for human habitation as has been held in the case reported as Puran Chand and Anr. v. Rashan Lal, 1977(2) R.L.R. 621 and because in more than 20 year, which have elapsed between the date on which the trial Court had given a finding against the respondent and in favour of the petitioner, the building in dispute has apparently withstood the ravages of nature to which it must have been exposed, there would hardly be any occasion for coming to the conclusion that the few cracks, which have been alluded to by Harbans Singh and regarding which no cross-examination has taken place, would by themselves warrant a finding in favour of the petitioner to the effect that on 9.6.1981 the condition of the building was such that it was unfit and unsafe for human habitation and, therefore, the respondent's ejectment should have been ordered.
10. In this view of the matter, while the legality of the submission made on behalf of the petitioner by his counsel to the effect that failure to cross-examine would necessarily warrant a conclusion that what was stated in the examination-in-chief was necessarily correct, yet there being hardly any conclusive evidence to show that the cracks alluded to were such as would render the building unfit and unsafe for human habitation, which inference, as already indicated by me, is supported by the fact that the building has not fallen till date, no ground for inference in the view taken by the appellate authority is made out. Dismissed.