Punjab-Haryana High Court
Sh. Arun Kumar S/O Sh. Dharam Dev Batta ... vs Sh. Pishori Lal (Deceased) Son Of Sh. ... on 9 August, 2012
Author: K. Kannan
Bench: K. Kannan
CR-3069-1996 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3069 of 1996 (O&M)
Date of Decision: 09.08.2012
Sh. Arun Kumar s/o Sh. Dharam Dev Batta r/o H.No.325,
Sector 7-A, Chandigarh and another.
... Petitioners
Versus
Sh. Pishori Lal (deceased) son of Sh. Uttam Chand shop No.4
Main Bazar, Mandi Gobindgarh, Tehsil Amloh, Distt. Patiala
through his LRs and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. O.P. Goyal, Senior Advocate with
Mr. Ravinder Kaur, Advocate,
for the petitioners.
None for the respondents.
*****
1. Whether reporters of local papers may be allowed to
see the judgment? NO
2. To be referred to the reporters or not? NO
3. Whether the judgment should be reported in the
digest? NO
K. KANNAN, J. (Oral)
1. The landlord is in revision challenging the order of the Appellate Court reversing the finding of the Rent Controller and holding that the landlord had not established that the building had become unsafe for human habitation. The contention of the landlord had been that the demised premises was a verandah and two rooms while two more rooms adjoining the demised premises had been retained by the landlord. The landlord also pleaded for bona fide requirement of his own personal occupation by contending that he had been living away CR-3069-1996 [2] in Government quarters at Chandigarh and before his retirement, he wanted to repair the whole building and claimed the property for his personal use and occupation. The landlord also placed on record a report of a building expert testifying the precarious conditions of the building and also tendering his evidence to speak and support his report. The Rent Controller accepted the landlord's plea with reference to the condition of the building but rejected the plea regarding the bona fide requirement and change of user. The tenant preferred an appeal and the landlord had cross-objection for the finding rendered against him. The Appellate Court reversed the finding to hold that the quality of evidence tendered by the building expert did not evoke confidence and he observed that the landlord was interested in renovation of the building for their own purpose and there was nothing precarious to warrant an eviction.
2. Learned senior counsel Mr. Goyal appearing on behalf of the landlord does not press two other grounds, namely, the bona fide requirement and change of user and advances his arguments only as regards the building as being unfit and unsafe for human habitation. He also moved an application for appointment of a Commissioner, as also application for reception of some documents showing the present condition of the building. The respondent is not present and I undertake to render adjudication on the basis of the records already CR-3069-1996 [3] available, for, a fresh assessment of the condition of building, in my view, as regards the building is not necessary.
3. There is no dispute about the fact that building was very old one. The building expert, who has given a report and spoken from his personal inspection, has referred to the fact of cracks in the building are about 2½". The landlord has given evidence and the building expert has also stated that the roof of the remaining portion of the building in the occupation of the landlord has fallen down. Where the building is very old and a portion retained by the landlord has also fallen down in decrepitude, I cannot make an artificial straining of the expression found in the Act to mean that the building must crumble before it could be ordered to be evicted. A danger to a building is one of perception. A landlord ought to owe to his tenant as well as to himself that a building in the occupation of tenant does not cause any harm. A duty to keep a building in state of repair may not admit of a ground of eviction itself but if it is beyond a state of repair, which would require to be fallen down, then, unless there is oblique motive that could be attributed to the landlord, the evidence given by an expert regarding the condition of the building and the evidence given by the landlord themselves form an appropriate basis. In this case when the trial Court found that the building was precarious and when it was relying on the building expert's evidence and report, the Appellate Court could not have modified the finding unless CR-3069-1996 [4] the report itself was suspect and unworthy of acceptance. I have gone through the judgment of the Appellate Court and I find that there are general observations of the Appellate Court to say that the evidence of the expert is not reliable when he has stated that there are cracks in the wall of the shop in dispute at three places and there were two cracks in the wall of the South to a depth of 2½". The fact that he has not measured the breadth of the cracks in some places could not have been used for completely discrediting the report and his statement. The Appellate Court has also again made a reference to the fact that when the building expert inspected the property on 06.12.1989, no bricks had been extracted from the roof. In the evidence, there is also a reference to the fact that 15/20 bricks had fallen from the roof on the side of the landlord. As regards the age of the shop, the evidence was that it was more than 80/85 years old but the Appellate Court doubted this assessment, for, it was merely a matter of opinion. It has to be inevitably a matter of opinion when it is 80/85 years old and the expert witness cannot be expected to be a personal witness to the actual construction of the building itself. An expert makes an assessment of how the old building is, not by the fact that he was present when the building was constructed but by his technical skills of the manner of assessment of age by ocular observation and by physical verification of the features obtaining at the building. Even the wooden rafters were said to have been CR-3069-1996 [5] eaten by white ants and when it was asked in the course of the examination the nature of wood that has been used and when he stated that it was deodar, the Appellate Court found a reason to discredit also by saying that the manner of ascertainment of the quality of wood had not been stated in a report. If it was not stated in the report but elicited in the cross-examination that itself ought to have been a ground for accepting his evidence unless, it was shown that the piece of evidence regarding the quality of wood was found to be different by some other evidence adduced by the tenant. I find the manner of appreciation of evidence of the expert as being wholly faulty and the Appellate Court went into complete error in rejecting the report and the evidence for frivolous reasons.
4. The decision of the Appellate Court regarding the condition of the building at variance with the reasoning given by the Rent Controller would require to be set aside. The order of eviction made by the Rent Controller would stand restored on the ground found by him. The civil revision is allowed. There shall be two months' time for eviction from the date of receipt of copy of the order.
9th August, 2012 ( K. KANNAN ) Rajan JUDGE