Punjab-Haryana High Court
Tripta Devi And Anr. vs Jagdish Kumar on 22 May, 2007
Equivalent citations: (2007)4PLR479
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. In this revision filed by the land-ladies under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act'), the issue involved is whether the respondent tenant is liable to be ejected on the ground that the demised premises has become unfit and unsafe for human habitation, which is one of the grounds of ejectment of the tenant under Section 13 of the Act.
2. In this case, the demised premises is a shop which was let out to the respondent tenant by the previous landlady Smt. Kaushalaya Rani at a monthly rent of Rs. 3007-. Subsequently, the petitioners purchased the property of Smt. Kaushalaya Rani, including the demised shop in the year 1988. Thereafter, they filed the instant ejectment application against the respondent tenant on various grounds, including on the ground that the demised premises has become unfit and unsafe for human habitation.
3. The Rent Controller vide its order dated 25.10.1991 ordered the ejectment of the respondent tenant while holding that the demised premises has become unfit and unsafe for human habitation. However, on appeal the Appellate Authority has set aside the said order while observing that the landladies have not been able to prove that the demised premises has become unfit and unsafe for, human habitation.
4. Learned Counsel for the petitioners submitted that the Appellate Authority has acted illegally and contrary to the evidence available on the record while reversing the order of the Rent Controller. He submits that he petitioners have led sufficient evidence on the record which clearly establish that the demised premises is in dilapidated condition and the same has become unfit and unsafe for human habitation. He referred to the statement of AWl-Parmod Chander, who proved his report Ex. A1 and the site plan prepared by him as Ex. A2. In his report, the Expert has categorically stated that the entire building, including the demised premises, which is more than 80 years old, is in dilapidated condition and is unfit and unsafe for human habitation. He submits that he other evidence led by the petitioners, i.e. report of the Local Commissioner Ex. A3 and the statement of the other witnesses, and even the evidence led by the respondent tenant clearly indicate the demised premises is in dilapidated condition. Learned Counsel further submits that he learned Rent Controller while taking into consideration all those evidence has come to the following conclusion:
From the report of Expert Ex. A-1, it is clear that the demise premises are constructed with Nanakshahi bricks and it is common knowledge that Nanakshahi bricks went into disuse about 80/90 years back. So it can be safely said that the premises in dispute are about 80/90 years old. It is in evidence of applicants that room over the demise premises has partly fallen and same is clear from the report of the site plan prepared by the Expert Ex. A.2. From the evidence on the file, it is clear that demise premises are part of bigger building and from the evidence it is clear that roofs of back rooms have fallen down and roof of the chaubara over the demise premises has also partly fallen down. To the similar effect is the site plan Ex. R2 prepared by Expert produced by the respondent.
5. The Rent Controller has also taken into consideration the report of the Expert produced by the tenant. While not giving preference to the report of the tenant expert, the Rent Controller has observed as under:
Sushil Kumar, Expert produced by the respondent also prepared site plan showing first floor wherein it has been shown that roof of chaubara over the demise premises has partly fallen down. The report given by Sushil Kumar RW2 is perfunctory as he has not given in the report Ex. R1 that he construction is of Nanakshahi bricks. From Ex. R1 it is clear that there is only one crack in the corner of northern and western wall which can be easily repaired. From Ex. R1 it is clear that building is old one but Expert has stated in his report Ex. R1 that any old building can be declared dilapidated because of its old age.
6. Learned Counsel submits that after taking into consideration the report of both the Experts, the Rent Controller came to the conclusion that the building in dispute is in dilapidated condition and there are cracks in the corners of the shop in dispute. Major portion of the building of which demised premises are a part has fallen down and has become unsafe and unfit for human habitation. Learned Counsel further submits that the findings recorded by the Rent Controller, is well reasoned and based on the evidence available on record. The Appellate Authority has reversed the order passed by the Rent Controller only on the basis of conjectures and while ignoring the material evidence available on the record. The learned Counsel submits that the Appellate Authority has reversed the order of the ejectment passed by the Rent Controller on three grounds. Firstly, that merely because the building is an old one it cannot be assumed that the same is unfit and unsafe for human habitation, secondly, the demised premises cannot be said to be in dilapidated condition merely because die bigger building of the demised premises is a part, has become unfit and unsafe for human habitation. It is held that the petitioners-landladies did not plead that the entire building of the demised premises form part has become unfit and unsafe for human habitation. Therefore, the evidence led by the petitioners to that effect cannot be taken into consideration and the demised premises, which is part of the bigger building, cannot be said to have become unfit for human habitation. Thirdly, it has been observed that the petitioners had filed the ejectment application just after four months of the purchase of the property with a mala fide intention to get the tenant ejected.
7. Learned Counsel submits that on the aforesaid grounds the Appellate Authority has reversed the order of the Rent Controller. Learned Counsel further submits that the demised shop is a part of bigger building and in their ejectment application, the petitioners had clearly pleaded that the demised premises has become unfit and unsafe for hu-mui habitation. He submits that in the pleadings, the landladies are not required to give details of all the buildings which they can prove during the course of evidence that a part of the building has become unfit and unsafe for human habitation and there is an impact of that condition on the entire building. While referring to the decision of this Court in Sardarni Sampuran Kaur v. Sant Singh 1983 H.R.R. 152, learned Counsel submits that if the substantial part of the integrated larger building has become unfit and unsafe for human habitation, the tenant can be ejected from the demised premises forming part thereof under Section 13(3)(a)(iii) of the Act despite the fact that the particular portion in his occupation may not be in dilapidated condition. Learned Counsel submits that in spite of the fact that it has been proved on record that the entire building is in dilapidated condition and even the demised premises is also in dilapidated condition, the learned Appellate Authority has reversed the order of the Rent Controller solely on the basis of conjectures.
8. On the other hand, learned Counsel for the respondent submitted that he Rent Controller has come to the conclusion about the condition of the building being unfit and unsafe for human habitation only on the basis mat the same was 100 years old. While referring to the decision of this Court in Pritam Singh v. Om Parkash Adya 1999 H.R.R. 492 learned Counsel submitted that merely because the demised premises is old and built of nanakshahi bricks would not ipso facto make the demised premises unfit and unsafe for human habitation. But to prove the said fact, something more is required. Learned Counsel submits that in this case as far as the demised premises is concerned, that is in safe condition, though the other portion of the bigger building has become unfit and unsafe for human habitation, but the said fact cannot be taken into consideration because the landladies did not plead this case in their ejectment application. Therefore, the Appellate Authority has rightly discharged those evidence available on the record and has rightly set aside the order of ejectment passed by the Rent Controller. Thus, he prays that there is no merit in the instant petition and the same be dismissed.
9. After hearing the arguments of the learned Counsel for both the parties and going through the record of the case, I am of the opinion that the order passed by the Appellate Authorities is liable to be set aside as the order of ejectment passed by the Rent controller is a reasoned one and based on the evidence available on the record to the effect that the entire building, including the demised premises has become unfit and unsafe for human habitation. The report (Ex. A1) and the site-plan (Ex. A2) which have been proved by the Expert Parmod Chander (AW1), clearly indicate that the entire building, including the demised premises is in dilapidated condition and has become unfit and unsafe for human habitation. The part of the report given by the Expert (AW1) is reproduced below:
I inspected the shop in the presence of the owner. It was inspected from inside and outside. Building seems to be 80-100 years old. Whole of the building is very much in dilapidated condition and it is clearly unfit and unsafe for human habitation.
There are cracks of varying sizes between 1" to 3" thickness as marked in the attached plan.
Shop in question has despite thick walls cracks in the door arches and the walls. All the four junctions of the walls are separated from each other by at least 1/2" to 1-1/2". These cracks have developed due to settlement of walls and weakness of the walls and also due to loss of strength of jotting material i.e. mud mortar in this case. On pressing under the fingers it was found to have lost strength. Also due to persisting dampness it has lost strength. Front wall is also having cracks. Room over this shop has its roof partly fallen. As per the position of the malba it seems to have fallen 5-10 years back. Whole of the building is in damaged condition. Roofs of ground floor room and first floor rooms on the back side of this shop have also fallen. There are big cracks in the wall adjoining to the shop and the other walls. The roof of adjoining stores and the room above these is also with fallen roofing. All the batons and beams of these roof have been moth-eaten and are dangerously standing.
Out of 5 wooden beams in the shop in question all were found on striking with a bamboo rod giving dull and hollow sound. This clearly show that the beams have lost strength and are very much dangerously standing. This wooden planks and the batons are also moth eaten. Due to loss of strength of roof material, the roof can fall any moment. It is very dangerous to stand over the roofs.
Whole of the building including shop in dispute is unfit and unsafe for human habitation.
10. Undisputedly, it is also admitted position that some portion of the first floor of the disputed shop had fallen down and malba of that portion was lying on the roof of the disputed shop. This fact has been established even from the report (Ex. A3) of the Local Commissioner appointed in the civil suit filed by the respondent tenant and from the report (Ex. R1) of the Expert Sushil Kumar (RW2) produced by the tenant. In the reports of both the Experts, it has been stated that there are cracks in the wall of the demised shop. However, the Expert produced by the tenant suggested that those cracks could be repaired. It is an admitted fact that the entire building is an old one. Even the Appellate Authority has come to the conclusion that the bigger building to which the demised shop is a part, has become unfit and unsafe for human habitation. But the Appellate Authority has discarded the evidence while observing that this plea was not taken by the landladies in their ejectment application. In my opinion, the landladies are only required to take the plea that the demised premises has become unfit and unsafe for human habitation. They can prove this fact by leading evidence including to the effect that the demised shop is a part of the bigger building and that the substantial portion of that building has become unfit and unsafe for human habitation. This Court in Sardarrii Sampuran Kaur's case (supra) has clearly held that if the substantial part of the integrated larger building has become unfit and unsafe for human habitation, the tenant can be ejected from the demised premises forming part thereof under Section 13(3)(a)(iii) of the Act despite the fact that the particular portion in his occupation may not have become unfit and unsafe for human habitation. This principle was subsequently followed by this Court in Bishan Doss v. Smt. Phullan Rani and Anr. (1986-1) 89 P.L.R. 214, where a part of the super structure above the shop has fallen down and due to that some cracks appeared in the walls of the shop, it was held that since the substantial part of the integrated larger building has become unfit and unsafe for human habitation, the tenant is liable to be ejected from the shop in question also. In this case, undisputedly not only one room on the roof of the demised shop, but other rooms on the back portion of the shop has fallen down and deep cracks have been appearing in the walls of the shop. In such situation, in my opinion, the demised shop being part of the larger building, substantial portion of which has become unfit and unsafe for human habitation, is also liable to be vacated by the tenant on the ground that it has become unfit and unsafe for human habitation. In my opinion, the reasoning given by the Appellate Authority discarding those evidence on ground that there was no specific pleading, is not justified. Both the parties led their evidence by fully knowing the stands taken by each other. The tenant has been provided full opportunity to contest the claim of the landladies. It is not the case of the tenant that some prejudice has been caused to him by not particularly pleading a fact. In these circumstances, in my opinion, if the substantial part of the integrated larger building has become unfit and unsafe for human habitation, 'the tenant can be ejected fromThe demised premises forming part thereof under Section 13(3)(a)(iii) of the Act despite the fact that the particular portion in his occupation may not be in dilapidated condition. The other factor taken by the Appellate Authority that the landladies filed the ejectment application with mala fide object after four months of the purchase of the demised premises, is the conjecture and on such plea the right of the landladies to get the demised premises vacated on the ground that the same has become unfit and unsafe for human habitation, can be denied.
11. Thus, in view of the above, discussion, this revision petition is allowed and the impugned judgment dated 16.11.1993 passed by the Appellate Authority is set aside and the order dated 25.10.1991 passed by the Rent Controller is restored.