Punjab-Haryana High Court
Ram Avtar vs Murari Lal And Anr. on 17 February, 2000
Equivalent citations: (2000)126PLR131
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Ram Avtar (hereinafter described as "the petitioner") directed against the judgment of the learned Appellate Authority, Narnaul, dated 21.8.1984. The learned Appellate Authority had set aside the order passed by the learned Rent Controller, Rewari, dated 15.9.1980 and instead had passed an order of eviction against the petitioner.
2. The relevant facts are that the respondents had filed a petition for eviction against the petitioner with respect to the shop in dispute. The ground of eviction pressed in this Court was as to if the suit property has become unfit and unsafe for human habitation. The respondents pleaded that it has become unfit and unsafe for human habitation and is more than 100 years old. It has outlived its life. Foundations have lost their strength. There are cracks in the wall. The other grounds of eviction though taken do not survive nor were pressed.
3. The petitioner contested the petition for eviction. It was denied that the suit property has become unfit and unsafe for human habitation.
4. The learned Rent Controller had framed the issues and recoded the evidence. The learned Rent Controller acted on the local inspection as well as the report of the Local Commissioner. In addition to that, evidence was perused and it was held that the suit property was unfit and unsafe for human habitation. The eviction petition was dismissed.
5. Aggrieved by the same, an appeal was preferred. The learned Appellate Authority held that the shop in question was more than 100 years old. It was class II construction and had outlived its utility and life. Since Karris had been changed, it was held that part of the property had become unfit and unsafe for human habitation. It was further recorded that it is not necessary for the landlord to wait till the building actually fall. Accordingly, the order passed by the learned Rent Controller was set aside and the appeal was allowed. The petitioner was granted two months time to vacate the property.
6. It is true that the building is old and it has transpired in evidence that it had been set up many years ago. But the age of the building by itself, though a relevant factor, cannot be the sole ground to conclude that the same has become unsafe and unfit for human habitation. It has to be proved by evidence as to what is the nature of the construction and damage caused thereto. It is common knowledge that some buildings are well maintained and despite being ancient looked better and rather more habitable than unkept and uninhabited recently constructed building. Same was the view expressed by this Court in the case of Narinder Nath v. Amaraj Singh, (2000-1)124 P.L.R. 62. It was held that merely because the building is old is no ground to conclude that it has become unsafe and unfit for human habitation. The age of the building is only a relevant factor. In that view of the matter, the learned Appellate Authority was patently in error in recording that because the building is old it should be given undue importance.
7. In the present case, a Local Commissioner had been appointed by the learned Rent Controller. He was a Sub Divisional Engineer. He reported as under:-
" . . . . Both the parties were present at the spot. The following observations were made.
1. There were sort of three portions in the shop as shown in plan as A, B and C.
2. The three Nos. Karries seemed to be different than others in the block as shown C in the plan.
3. The minor patches of plaster seemed to be visible in all the portion.
4. The whole shop seemed to be quite old, but it did not appear to be unsafe."
8. It is crystal clear from the report of the Local Commissioner that he did not find the building to be unsafe. Interestingly, no objections were filed to the report of the Local Commissioner by the petitioner. When no objections are filed, ordinarily, unless there are cogent reasons to come to otherwise, the same should be accepted. There are no cogent reasons forthcoming for ignoring the report of the said Local Commissioner that the building was safe.
9. Not only that, the learned Rent Controller himself had inspected the building on 12.9.1980. The local inspection reveals as under:-
"In the presence of Shri D.N. Gupta, Advocate counsel for the applicant and Shri M.L. Yadav, Advocate, counsel for the respondent, I have inspected the demised premises.
2. There was no Kari in the 3rd Khan of the shop in dispute (shown as B-1) in the site plan prepared by Expert and produced by the applicant) as the support for the Southern Wall. However, an old wooden Bala was noticed fitting along the Southern Wall. It was apparently as old as the wall is. This wooden Bala appeared to have been fitted so as to make a Thand in order to store goods on it. The wooden beams of the roof of the 3rd Khan did not appear to be falling. But those were old and were in bad shape. Because the building is an old, therefore, roof of the 3rd Khan was not giving good look. Evidently the 3rd Khan of the shop in dispute was not being used in a proper manner. Its floor is a Kachha Gunny bags of Gur and other goods were lying scattered in the 3rd Khan. In the 3rd Khan there was no provision for/light and air. In this very Khan it was noticed that at two three places there was plaster patches in/the lower portions of the wall."
10. The local inspection clearly show that the building could not be said to be unsafe and unfit for human habitation. There was a wooden Bala that was fitted to make a Thand. But it cannot be said that the wooden Bala had been fixed to support the roof. There is nothing further on the record to indicate that the building was dilapidated so that it could be declared unfit and unsafe for human habitation.
11. We know from the decision of Delhi High Court in the case of Smt. Saroj Kumari v. Sh. Lalit Kumar Vijay, 1969 All India Rent Control Journal 196, that when the Presiding Officer inspects the site, he is in a better position to come to a factual correct position. Even the learned Appellate Court (Rent Control Tribunal which is the Appellate Authority for hearing the appeal in Delhi) while deciding the appeal should attach value to the inspection of the spot by the Rent Controller and consider the testimony on the basis of which the Rent Controller gave his decision.
12. In the present case in hand, the learned Appellate Authority totally ignored the same and have found no cogent reason to reject the said report. In fact, one is constraint to observe that the learned Appellate Authority gave no reasons which were recorded by the learned Rent Controller while dismissing the petition for eviction.
13. During the course of arguments, it was further pointed out that three karries had been replaced. This shows that the property had become unsafe and unfit for human habitation. Taking the argument at its best, still the said plea has necessarily to fail. No major structural alterations had been effected. If minor repairs are carried out that by itself will not impress the Court to hold that the building was unsafe and unfit for human habitation. The ratio of the decision in the case of Shadi Singh v. Rakha, (1992)3 Supreme Court Cases 55, squarely applies to clinch the matter in favour of the petitioner. The Supreme Court concluded that if minor repair had been effected, the tenant was entitled to do so and order of eviction on that ground could not be passed.
14. Otherwise also, though the learned Appellate Authority is a final Court of fact, still if the evidence has been misread, under Sub-section (6) to Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the High Court will be within its right to interfere in the said finding of fact. Herein, almost all the witnesses produced by the landlord stated that they had not been inside the shop but had only seen it from outside. In that view of the matter, too much reliance cannot be placed on their statements. The self serving statement, therefore, should have been ignored.
15. On appraisal of entire facts, it is clear that it has not been established that the suit property was unsafe and unfit for human habitation. The judgment of the learned Appellate Authority was based on erroneous appreciation of facts.
16. For these reasons, the revision petition is allowed. The judgment of the learned Appellate Authority is set aside and instead eviction petition is dismissed.