Punjab-Haryana High Court
Labh Chand Om Parkash vs Krishan Lal And Ors. on 7 September, 1989
Equivalent citations: (1990)97PLR87
JUDGMENT M.S. Liberhan, J.
1. The demised premises were taken on rent from one Om Parkash and Harnam Singh at yearly rent of Rs. 700/. The premises are constituted of 7 Khans. Out of them, tenant is in possession of 3 Khans. He has been running the shop of jute ropes, cots and tobacco etc. for more than two decade The two Khans on the back of the premises in occupation of the tenant were locked by the landlord and were in his possession. The respondents purchased the demised premises on 1 3.1.1978.
2. The successor of the landlord i. e. the respondents after the purchase of the demised premises on 13.1.1978, sought ejectment of the tenant on the ground that the tenant was in arrears of rent with effect from 13.1,1978 i.e. from the date they purchased the dismissed premises. The ejectment application was preferred on 11.9.1980. The rate of rent was claimed to be Rs. 250/- p.m. It was also averred that the tenant had created nuisance by obstructing the use of two khans which were in possession of the landlord. The allegation levelled against the tenant was that he refused to provide access to the first floor from the staircase in his possession.' The charge of user of the premises in dispute was also attributed by averring that the shop in dispute was leased out for running a grocery shop but now the tenant is using it for selling bamboo, jute, cots and tobacco etc.
3. The allegations were denied by the tenant and it was claimed that the rent was Rs. 700/- per annum.
4. The authorities below came to the conclusion that the rate of rent claimed by the landlord in his application for ejectment an after-thought. They disbelieved the landlord's evidence on reccord and came to the conclusion that the rate of rent was Rs. 70/- per annum. The landlord was found to be entitled to the house-tax only after the statutory provisions of law for claiming the same were complied with. It was further observed that no nuisance was created by the tenant. Some observations were made to the effect that the rear portion in occupation of the landlord was in dilapidated condition. It was ultimately concluded that the landlord failed to establish the nuisance that had been averred as ground for ejectment of the tenant. The finding with respect to the ground of change of user was also against the land lord, Resultantly, the ejectment petition was dismissed by the Rent Controller on 20.12.1982.
5. The landlord having failed in, his attempt, after purchasing the demised premises, to eject the tenant, preferred another application for ejectment again on the ground of non-payment of rent at the rate of Rs 250/- per month w e. f 19,9 1980. A further charter of claim for ejectment was put forth viz. the building had become unfit and unsafe for human habitation. It was averred that the tenant by blocking the stair case had created a condition in which the landlord was unable to look after the two Khans on the back side, which were in his possession. This made the roof of those two Khans to fall it was further averred that the tenant was not allowing the landlord to effect repairs of the two back Khans and with the fall of the roof of two back Khans, the demised premises had become unfit and unsafe for human habitation Further an averment was made to the effect that the tenant had materially impaired the value of shop as well as its utility. This ejectment application was preferred on 15.3.1982.
6. The tenant petitioner refused the averments made. He claimed Rs. 700/- per annum as rent of the demised premises and stated that the back room was locked by the landlord just as previously it was locked by their predacessor in interest He had never obstructed the use of the porition in their possession nor he caused any nuisance. The landlords themselves had never cared to attend to the said premises in their possession and had never used these except that the same is under their lock. The allegation that the premises in occupation of the tenant as well as the back portion was unfit and unsafe for human habitation was denied.
7. The Rent Controller found that the premises in dispute were unfit for human habitation though rejected the contentions with respect to arrears of rent as well as nuisance, and passed the ejectment order.
8. The appellate authority affirmed the findings of the Rent Controller and continued the order of ejectment of tenant. It was observed that there was no evidence with respect to the material impairment in the value and utility of the demised premises, so no ejectment can be ordered on that ground. On appraisal of the evidence it was found that 3 Khans is in possession of the tenant were in good condition. It was observed that the two hind Kharris of the shop were in dilapidated condition because two Karris of the roof of the fourth Khan and almost half of the roof of the fifth Khan of the shop had fallen down and the same could not be put to human habitation without repairs and repairs could not be effected unless the shop in dispute was vacated. The dilipidaded Khans were found to be integral part of the building and therefore, it was, inferred that the building was unfit and unsafe for human habitation.
9. The learned coulsel for the tenant petitioner challenged the finding of authorities below and contended that the findings arrived at by the authorities below were improper and illegal and as such cannot be sustained. It was contended that the authorities below failed to take into consideration the relevant matters and the evidence and hence the inference drawn by the authorities cannot be sustained. It was contended that the landlord took false pleas in ejectment application and the falsity of the pleas had become final inter se the parties. Since the landlord had taken false pleas, his evidence cannot be relied upon. It was contended that since the landlord had come to the Court with unclean hands and the claim of the landlord was not bona fide the Bent Controller as well as the Appellate Authority were not justified in making an order directing the tenant to put the landlord in possession of the building and the ejectment application was liable to be rejected. He referred to the provisions of Section 13(4) of the .Haryana Urban (Control of Rent and Eviction) Act, 19 73 The learned counsel for the petitioner had taken me through the oral evidence, the inspection note and the pleadings of the parties. The learned counsel for the petitioner further contended that it was not a case of the building having become dilapidated and unfit for human habitation. The defects, if any pointed out in the roof were at the most, rectifiable by replacement thereof, if not by repairs. It was futher contended that the portions of the premises alleged to be in dilapidated condition did not constitute major portion of the building or substantial part of the building. In order to support the contention that the application being not a bona fide was liable to be rejected, the learned counsel relied on Mehar Chand and Anr. v. Tilak Raj Girdhar (1982) 84 P. L. R. 13, Tek Chand v. Wadhawa Ram, (1981)83 P. L. R. 49. and Mangat Rai v. D. S. Mehta and Anr., (1987-1) 91 P. L. R 618
10. The learned counsel for the petitioner, in order to support his contention with respect to the condition of the building being rectifiable or repairable by replacement of the roof or otherwise relied on Chandu Lal v. Bar lal(1966) 68 P. L. R. (S. N.) 36. Dr. Jagmohan Singh v. Smt. Bimla Devi(1975) 77 P L. R 643. Civil Revision No. 598 of 1967 decided on 25.8.1980 Piara Lal v. Kenal Krishan Chopra A. I. R. 1988 S C. 1432. , Kewal Krishan Chopra v. Piara Lal 1984 (1) R. C. R. 573. and Harnek Singh v. Bir Singh and Ors.. (1989-2) 96 P. L. R. 191. It was further contended that since there was no change in the condition of the building since its purchase by the landlord respondent in the year 1978, the respondents were estopped from claiming the ejectment on the grounds alleged and in order to support this contention he relied on Ved Parkash v. Darshan Lal Jain. 1986 (2) R. C. J. 58.
11. The learned counsel for the respondent-landlords refuted the submissions made by the learned counsel for the petitioter and contended that taking into consideration the report of the Local Cornmissoner and the building being one and the substantial part of the building being unlit for human habitation, the order for the ejectment was sustainable. In order to support his contention, he relied on Ram Parkash of Ladwa v. Shanti Devi, (1986-2) 90 P. L. R. 90. Sardarni Sampuran Kaur etc. v. Sant Singh etc 11. 1982 Cur. L. J. 233. and Krishan Pal Mohindroo of Kalka v. Ram Gopal, 1989 H. R. R. 386.
12. The finding with respect to the rate of rent being Rs. (sic)00/- per annum as put forth by the tenant has not been challenged before me and rightly so as the said finding has become final, inter se the parties in an earlier proceedings. A judgment was produced in this Court which is marked as Exhibit R-l. It was found in this judgment that the rate of rent was Rs. 700/- per annum. The said rinding was never challenged and the same became final between the parties. In view of this, I affirm the finding that the rent of the premises in dispute is Rs. 700/- per annum and the landlord has sought an exaggerated claim of rent at the rate of Ms. 250/-P.M.
13. After reading the statements of AW-1. Siv Shankar, AW-2 Krishan Lal, AW-3 Gurdip Singh, AW-4 Mahabir Parshad and appraising their evidence keeping in view the Local Commissioner's report as well as the inspection note recorded by the appellate authority at the instance of the parties to which no objection was taken, it emerges that the roof of the demised premises is of wooden beams and battens covered with earth over them. The said fact was not disputed by learned counsel for the parties in the course of arguments. It is further obvious that there is no damage to the primises in possession of the tenant which is constituted of three Khans of the building. The entire building is constituted of five Khans. The inspection was carried out by the appellate authority on 8.12.1983. It was specifically found on the spot that the walls of the portion in occupation of the landlord were intact. There are no observations in the Local Commissioner's report or in inspection note that they are likely to fall or are in such a condition that there is any imminent danger to them. If. cannot be said that the walls cannot sustain weight of the roof or have become unfit on account of age or otherwise The only observation made with respect to the condition of the roof of fourth and fifth Khan at the spot was that two Karris of the fourth Khan had given way and fallen down. Similarly, half of the roof of the fifth Khaa had fallen down, it was further observed that there was a regular passage of water from fourth Khan as well as the fifth Kbaa to pass through the roof of the portion in possession of the tenant but since a part of the roof had fallen down, rainy water could not pass and it would be failing inside the premises. The said factual position was not controverted by the learned counsel for the parties in the course of arguments.
14. Taking the statement of the landlord on its face, which is the self serving statement and can be taken to be his best evidence, not a word has been stated by him on oath that the premises in dispute, on account of the defects pointed out earlier, has become unfit and unsafe for human habitation. The only words used in the statement if translated Into English are that "the three Khan which are in possession of the ton ant ate in a totally bad condition and since the water outlet has been closed by the tenant, consequently, the portion in possession of the landlord has fallen down." It has not been stated that the alleged fall of the roof has in any way affected the demised premises in posses sion of the tenant It has not been pointed out that the damaged portion is the major portion of the building or it cannot be repaired.
15. There is no doubht that an attempt was made to get the tenant's premises vacated on the ground of nuisance, non-payment of rent etc. which resulted in fiasco. The present lis is another attempt to seek the ejectment of the tenant, again on the ground of nuisance non-payment of rent and impairing the value and utility, In my considered view there is no such evidence on the record as to constrain me to hold that the building has become unfit and unsafe for human habitation in particular when the condition of the entire building has been found to be good. The landlord by his own act and conduct viz. not repairing the roof of Khans in his possession and taking no intrest in the maintenance of his property, intentionally and with mala fide motive permitted a part of the kacha roof of the room in his possession to fall In view of this, the application for ejectment does not appear to be bana fide Lack of bona fide is again obvious in view of a number of false pleas particularly with respect to the rate of rent and nuisance etc. having been taken by the landlord consciously.
16. It has been observed in Plara Lal's case (supra), that if roof of one room in a leased portion falls down and there is nothing on the record that the rest of the building was damaged or had become bad or weak, eviction on the ground of the building being unfit for human habitation is improper. The Hon'ble Supreme Court observed:-
"Though a roof of one of the rooms on the rear side had fallen down and required replacement but there was no evidence whatever that the entire building or a substantial portion of it was in a damaged condition and consequently the building as a whole had become unfit and unsafe for human habitation. Unless the evidence warranted an inference that the falling down of the roof in the room was fully indicative of the damaged and weak condition of the entire building and that the collapse of the roof was not a localised event, it could not be concluded that the entire building had become unsafe and unfit for human habitatation."
In view of the dictum laid down by Hon'blethe Supreme Court and there being no evidence to show that falling of the small part of the roof of the rooms in possession of the landlord is indicative of the unsafe and unhabitable condition of the building, no ejectment order can be passed Even the landlord has not uttered a word with respect to the building having become unsafe and unfit on account of this.
17. Even otherwise, in view of the observations made above, I am not satisfied that the claim of the landlord is bona fide. There is no dispute with the proposition of law laid down in the judgments cited by learned counsel for the respondents. But in all the judgments on appraisal of the evidence produced, the authorities had come to the conclusion that a major portion of the buildings had become unfit for human habitation affecting the other portion of the buildings in which the tenants were in possession, which in not the case here. Moreover, in the present case, the fallen portion of the roof can be repaired to which the tenant has never objected. The learned counsel for the tenant gave an undertaking to the effect that the tenant will permit the landlord to repair the part of the roof, which has fallen down.
18. In view of my findings above, I need not deal with the judgments cited by learned counsel for the petitioner. The findings arrived at by the authorities below cannot be sustained and the same are set aside. The ejectment order passed by the authorities below is quashed. The revision petition is accepted and the ejectment application is dismissed with no order as to costs.