Punjab-Haryana High Court
(O&M;) Chhote Lal vs Vijay Kumar Jain on 22 October, 2018
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Civil Revision No.2568 of 2007 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.2568 of 2007 (O&M)
Date of Order:22.10.2018
Dr. Chhote Lal
..Petitioner
Versus
Vijay Kumar Jain and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Dr. Surya Parkash, Advocate,
for the petitioner.
Mr. Mukul Aggarwal, Advocate,
for the respondents.
ANIL KSHETARPAL, J(Oral)
Tenant-petitioner is in the revision petition against the order passed by the learned Rent Controller, affirmed by the learned appellate Authority, ordering his eviction on the ground that the building has become unfit and unsafe for human habitation.
In the considered view of this court, the revision petition is liable to be dismissed on the following grounds:-
(1) Tenant filed an application under Section 12 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act'), praying for an order directing the landlord to carry out repairs of the building in question, whereas the landlord filed a petition that the building has become unfit and unsafe. Both the petitions 1 of 6 ::: Downloaded on - 11-11-2018 06:05:33 ::: Civil Revision No.2568 of 2007 (O&M) -2- were consolidated and the learned Rent Controller dismissed the petition under Section 12 of the Act on the ground that the repairs cannot be carried out as the building has become unfit and unsafe. The aforesaid finding, while dismissing the petition under Section 12 of the Act, has not been challenged and operates as resjudicata.
(2) The tenant while filing the petition under Section 12 had pleaded as under:-
"3(ii)Although the demised shop requires some urgent repairs because the landlord never effected repairs at any time during the entire tenure of the tenancy of the respondent as well as his father. The four wooden karis (battons) of the western room and three wooden battons of the middle room and one wooden batton of the front room of the demises premises had become weak as being effected by the termite. The said battons have been shown in the plan attached with the present written statement in red lines. The plaster of the walls was partly pealed off due to seepage of water from the roof in the western room of the demises premises. The rainy water had also been trickling down in the last khas of the shop....."
Para No.3 of the petition under Section 12 of the Rent Act reads as under:-
".... The wooden karies and battons of the ceilings have become spoiled by termite, the plaster of the Wall had pealed off at several
2 of 6 ::: Downloaded on - 11-11-2018 06:05:33 ::: Civil Revision No.2568 of 2007 (O&M) -3- places from both outer as well as inner walls of the shop. The water during the rainy season trickles down in the shop through minor holes which have developed in the roof which also causes seepage of rainy water into the shop resulting in dampness in the walls and ceiling etc. by which the walls and ceiling are being effected and life of the premises is being deceased. Moreover, the seepage of water and tis trickling down during the rainy season as well as dislodging of the plaster from many places of outer and inner walls is causing great inconvenience..... in room no.1 batton no.1 is badly affected by termite and had cracked, the said batton is shown in red colour in room no.1. In room no.2 battons no.1, 2 and 9 are effected by termite and batton no.5 is almost hanging from the ceiling which are shown in red colour in the plan. In room no.3, battons no.10 and 11 are hanging, batton no.12 has already developed a bend, batton no.15 is badly affected by termite. There is every likelihood in the condition of these battons and of other battons being effected in similar manner."
In para no.4 it has been stated as under:-
"That if urgent repairs are not carried out in the demised shop, there is every likelihood of falling down of these battons resulting in further deterioration of the condition of the ceiling and room."
(3) Both the courts have noticed that a building expert 3 of 6 ::: Downloaded on - 11-11-2018 06:05:33 ::: Civil Revision No.2568 of 2007 (O&M) -4- deputed by the landlord wanted to examine the building but tenant did not permit the expert to examine the building. Learned Rent Controller has drawn adverse inference on the ground that the expert was permitted to examine the building after a period of more than 3 years and the tenant in the meantime, carried out some repairs.
The findings arrived at by the learned Rent Controller are extracted as under:-
"34. During the course of argument Shri Pankaj Bhatnagar, adv. fairly conceded at bar that during the pendency of the petition the tenant carried out repairs in the disputed shop and except for one batton the entire repairs sought had been done. The landlord filed application for appointment of Shri Y.D. expert which was adjourned for notice to 1.3.97, thereafter numerous adjournments were granted for one or other reason and finally the application was allowed. The case was adjourned for report of the expert to 14.10.98. Thereafter also, the tenant did not permit the expert to enter the shop and it was only with the aid of police that the expert finally inspected the premises on 3.9.2000. In the meanwhile, as admitted by Ld. Counsel, the respondent without notice, knowledge and consent of the petitioner, carried out changes in the shop to dispute its condition. Respondent has produced photographs Ex.RW3/1 to RW3/4. The photographs show the adjacent belt shop which is a temporary structure.
4 of 6 ::: Downloaded on - 11-11-2018 06:05:33 ::: Civil Revision No.2568 of 2007 (O&M) -5- There are also photographs of the shop from inside which show dampness and seepage in the wall. 6 photographs out of 14 pertain to the roof which as per tenants own case, he has repaired and white washed. Some other portion of the room has also been photographs which also reveals recent white wash. No damaged battons and bent battons are visible. It does not appeal to reason that these are the photographs of a shop which has not been repaired even once since 1937. The tenant cannot be permitted to defeat the right of the landlord by effecting repairs. The photographs of the repaired and white washed portion do not advance tenant's case that the building is in a good condition fit for human habitation. Taking into consideration the conduct of the tenant I am inclined to observe that the building in question was not fit and safe and the repairs were made to create evidence that the building was not in a state of falling down. For this precise reason the tenant resisted all attempts of the expert to inspect the premises."
Correctness of the aforesaid findings arrived at is not being disputed.
(4) It is not disputed that the shop in question is part of bigger building and the remaining building has already fallen down.
Keeping in view the aforesaid fact, this court does not find any good ground to interfere.
5 of 6 ::: Downloaded on - 11-11-2018 06:05:33 ::: Civil Revision No.2568 of 2007 (O&M) -6- The civil revision petition is dismissed.
The other miscellaneous applications are disposed of in view of the judgment passed above.
C.M.No.1128-CII-2018 Prayer in this application is for bringing on record the legal representatives of Dr. Chhote Lal @ Ram Kishore, the sole appellant.
Counsel for the landlord does not oppose the application.
For the reasons mentioned in the application, which is supported by an affidavit, the application is allowed. The legal representatives mentioned in paragraph 3 of the application are brought on record for the purpose of prosecuting this revision.
October 22, 2018 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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