Punjab-Haryana High Court
Walaiti Ram And Anr. vs Harbans Lal (Died) Through His Lrs. on 21 May, 2003
Equivalent citations: (2003)135PLR323
JUDGMENT M.M. Kumar, J.
1. This judgment would dispose of Civil Revision Nos. 553 and 554 of 1985 as the common questions of law and facts are involved. These petitions have been filed under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') by landlord Shri Walaiti Ram to challenge the judgment dated 4th September, 1984 passed by the Appellate Authority Ludhiana. The Appellate Authority, has reversed the judgment dated 23rd April, 1982 passed by the Rent Controller allowing the petition filed by the landlord-petitioner under Section 13 of the Act for ejectment of the tenant-respondent and dismissing the petition filed by the tenant respondent under Sections 10 and 12 of the Act.
2. Brief facts necessary for disposal of these petitions are that the tenant-respondent filed an application under Section 12 of the Act praying for issuance of directions to the landlord-petitioner to restore amenity of roof as the same was demolished by him forcibly and without any just or sufficient cause. He alleged that he has been tenant under the previous owner Wattan Singh since 1954. The present landlord-petitioners are alleged to have purchased the demised premises from Wattan Singh in 1973. It has further been alleged that the tenant-respondent Harbans Lal is being harassed since then. The tenant-respondent has also averred that on 28th July, 1980 the landlord-petitioenr got him arrested along with his two sons in proceedings initiated under Sections 107/151 Criminal Procedure Code and on the night intervening 28th/29th July, 1980 he pulled down the roof of the room in the occupation of the tenant-respondent when he along with his sons was in police custody.
3. The application was contested by the landlord-petitioners asserting that the roof had fallen due to the rain because the roof had outlived its utility and premises were unfit and unsafe for human habitation. It was further asserted by Walaiti Ram the landlord-petitioner that after roof had fallen on account of heavy rain he filed an ejectment petition under Section 13 of the Act against the tenant-respondent alleging that the tenant-respondent was in arrears of rent since 24th July, 1977. The rate of rent alleged was Rs.30/- per month. The landlord-petitioner also set up the ground of unfit and unsafe alleging that the roof and part of the walls had already fallen and he desired to reconstruct the same. Various issues were framed on both the petitions which were taken up together. Issue No.3 in the ejectment petition is the significant issue which has survived for consideration.
4. The learned Rent Controller recorded the findings that the tenant-respondent Harbans Lal has been in possession of one room and the roof of that room had fallen during the rainy season. It was further found that both the parties were arrested under Sections 107/151 Criminal Procedure Code on 29th December, 1980. After the roof had fallen Walaiti Ram the landlord-petitioner had filed a suit against the tenant-respondent No.l and the civil Court had granted the stay order restraining tenant-respondent No.l from reconstructing the roof. The Rent Controller also concluded that the tenant-respondent No.l was not entitled to the replacement of roof as his case was not covered under Sections 10 and 12 of the Act. Another important finding recorded by the Rent Controller is that during the pendency of the ejectment proceedings before him, roof of another room had also fallen which is part of the building including the room under the tenancy of tenant-Respondent No.l. The version of the tenant-respondent No.1 that roof had been pulled down by the landlord-petitioner deliberately was rejected. On the aforementioned findings of facts the Rent Controller ordered the ejectment of the tenant-respondent No.1 and the application filed by the tenant-respondent No.l for replacement of the roof under Sections 10 and 12 of the Act was dismissed with costs.
5. The Appellate Authority on appeal reversed the findings on the aforementioned issue and allowed the application of tenant-respondent No. 1 and dismissed the ejectment petition filed by the landlord-petitioenr. The Appellate Authority proceeded on the presumption that in the absence of any damage to the walls of the room, the roof could not have fallen on account of rain. It has further been observed that if the rain was to damage the roof resulting in its fall, then the walls were also bound to collapse. The Appellate Authority also found that Walaiti Ram along with his labour pulled down the roof deliberately. It was also found by the Appellate Authority that tenant-respondent No.l was arrested on 28th/29th July, 1980. The view of the Appellate Authority in this regard read as under:
"....Now that is to be seen which of the two versions is correct, whether the landlord is right or the tenant is right, because there is no dispute that the roof has been fallen on the night of 28th/29th July, 1980. The statement of Shri P.K.Talwar, Local Commissioner shows that except the roof, all the walls were intact and could not give observation that this roof was made to fall or fell due to effect of the rain and according to Babu Ram Gupta, expert (AW2), the property is not fit for human habitation and is unsafe but he did not give notice to the respondent before visiting the spot and I do not give much importance to his statement because the walls were intact and he could not say if it has fallen due to rainy season or was made to fall and whether the roof has fallen due to its being outlived its life. He is an expert and being an expert he should have given the reason for falling of the roof. Therefore, this evidence does not help the landlord at all. Then there is statement of Walaiti Ram, the petitioner in support of the case on this issue and his examination would show that it is also admitted that there is a prolong litigation between the parties regarding the demised premises and that certain matter and appeals are pending. If the landlord had any intention to rebuild the house, he would have got sanctioned some plan from the Municipal Committee because the building has become unsafe and unfit for human habitation in his opinion but admittedly, the landlord has not got any plan sanctioned from the Committee for reconstruction so far as stated by Walaiti Ram in his cross examination as AW3. Som Nath AW4 another witness stated that he heard noise and came out of the house and saw that the premises in occupation of the respondent has fallen down and it was rainy season on that day that neither Walaiti Ram and nor his mother or any of relations were there on the site and this is a witness whose house is at a distance of 200 yards from the demised premises. Thus, I find that the premises by any stretch of imagination cannot be held to have fallen due to rain. How is it that only the walls could be intact and the roof could fall. The building is made of modern-bricks and no doubt, it is a mortar construction but even then its life is 40 years normally but it differs from the position and material used as stated by Babu Ram Gupta (AW2) witness of the landlord who is so called expert. There is a reliable evidence how in these circumstances only the roof would fall. If building becomes unfit and unsafe, it is as such as a whole and not in parts. If roof had fallen then the walls should have also fallen or damaged extensively beyond repairs. When the walls are intact and only the roof falls, it does call for scrutiny of evidence as the allegations of the tenant are that roof was felled by the landlord to create ground of ejectment.
Now coming to the evidence of the respondent. There is no witness who has seen the building being felled by the landlord. No doubt, Walaiti Ram was armed with kassi and Bhaiyas with sabbal which were seen by him but in cross-examination, it was stated that no one was there and that there is raulla that Walaiti Ram had done it.
Moreover, this witness had not known Walaiti Ram earlier to that date and how it is known that Walaiti Ram was armed with Kahi However, it is clear that the roof was made to fall deliberately. This finding of mine find strength that for the last many years, the landlord had made all efforts to oust the tenant but could not succeed and the possibility of their having no chance to succeed, got demolished the roof in view of the evidence on record particularly, the statement of Charanjit Singh, who has no adverse interest or enmity with the landlord go to prove and also in my finding that the roof has not fallen of its own due to out living its life because only the roof could not fall if the building is in dilapidated condition as the roof is rested on the walls and will fall if walls are unable to bear the weight of the roof or the roof material is rotten but there is no evidence to show that the roof material was in a bad shape which resulted into the falling of the roof. Even statement of Babu Ram Gupta, expert examined by the landlord goes to show that the roof was intact and according to him if the roof is changed there is no structural change and his statement that the roof cannot be put again unless one wall towards West is reconstructed and made 9" wide to receive the burden of the roof. This statement of his is incorrect because if the wall which the expert says that it needs reconstruction could take the weight of the roof earlier and it is stated that it cannot bear the weight now and needs reconstruction but no explanation has come for this opinion of the expert particularly in view of the fact that the wall of the adjoining room mark AB is 4. 1/2" in thickness. Similarly wall CD is also 4.1/2" in width. So, if two walls are of 4.1/2", the other wail need not be 9".
Therefore, I have no hesitation to hold that the building has not fallen of its own and did not fall on account of fact that the building has become unfit and unsafe for human habitation and the findings of the learned Rent Controller for the reasons given above are set aside on this point."
6. After recording the aforementioned findings that the roof has been pulled down by the landlord-petitioners and the sound condition of walls was its proof, the Appellate Authority proceeded to consider the petition filed by the tenant-respondent No. 1 under Sections 10 and 12 of the Act. The Appellate Authority allowed the petition directing the landlord-petitioner to reconstruct the roof.
7. This petition was admitted on 22nd March, 1985 by this Court. Thereafter, the landlord-petitioner filed CM No.5925-CII of 2003 in Civil Revision No.554 of 1985 to bring on record the present condition of the building and produce some photographs to show that the building is in a dilapidated condition. This application was contested and an attempt was made to show that the building is safe and sound for human habitation. Some photographs were also placed on record. By a separate order of today the application has been allowed.
8. Shri G.S. Jaswal, learned counsel for the landlord-petitioners has made the following submissions before me:-
(a) The findings of the Appellate Authority are based on conjectures and surmises because the sound condition of the walls does not necessarily lead to conclusion that the walls along with the roof were bound to fall and, therefore, the roof was pulled down by the landlord-petitioners along with their hired labour.
(b) The finding that Walaiti Ram landlord-petitioner was seen on the roof on the night of 28th July, 1980 is again without evidence and cannot be sustained.
(c) The finding that the tenant-respondent No. 1 (now represented by his LRs) was arrested on 28th July, 1980 along with his two sons has also not been supported by the record because the proceedings under Section 107/151 Criminal Procedure Code were initiated on 30th July, 1980 at the instance of tenant-respondent.
(d) There is no obligation imposed by any law on the landlord-petitioner to reconstruct the dilapidated building and the ground of ejectment under Section 13(3)(a)(iii) would be available to the landlord-petitioenr.
9. The learned counsel has further argued that during the pendency of the proceedings the condition of the building has further deteriorated and it is unsafe and unfit for human habitation. The tenant-petitioner who is tenant only in one room is liable to be evicted on that ground.
10. Shri G.S. Sandhu learned counsel for the tenant-respondent No. 1 has argued that this Court in exercise of its revisional jurisdiction should be slow in interference with the findings of facts and once the Appellate Authority has concluded that the roof has been pulled down by the landlord-petitioner along with his labour, then these petitions must be dismissed.
11. Having heard the learned counsel at considerable length, I am of the considered opinion that these petitions deserve to be accepted because it is an admitted position that the roof of the room which is under the tenancy of tenant-respondent has fallen. The question whether the roof has fallen or it was pulled down has been answered by the Rent Controller by recording a finding that the roof had fallen on account of rain. The finding has been reversed by the Appellate Authority on the ground that the walls are intact, then the roof cannot fall. This reasoning cannot be considered as sound. From the photographs, it is evident that the roof was open to sky and was exposed to vagaries of weather. The walls were not exposed to such vagaries of weather. Therefore, it is not necessary for the walls to collapse along with roof. The other reason given by the Appellate Authority is that the landlord-petitioenr got tenant-respondent No. 1 along with his son arrested on 28th July, 1980. A perusal of the application Exhibit R3 shows that an application under Section 107/151 Criminal Procedure Code was filed by the tenant-respondent No. 1 before Shri S.S. Gill, Executive Magistrate, Ludhiana being case No.470/3. The application was written on 28th July, 1980 which was instituted on 30th July, 1980, The proceedings under Section 107/151 Criminal Procedure Code were initiated by the tenant-respondent No. 1 on 30th July, 1980. Therefore, there was no question of arrest of the tenant-respondent No. 1 under Section 107/151 Criminal Procedure Code before 30th July, 1980. Therefore, the view of the Appellate Authority that the tenant-respondent No. 1 was arrested on 28th July, 1980 is against the documentary evidence and the findings recorded by the Rent Controller are liable to be recorded. The oral statement made by the tenant-respondent-and his witnesses in this regard cannot be accepted. The Appellate Authority has ignored the vital document Ex.R3. The further finding that landlord-petitioner was seen on the roof with hammer etc. for breaking the roof can also not be supported because the Appellate Authority itself has observed that no one has seen the landlord-petitioner on the spot. On the contrary, the Appellate Authority discussed the statement of the witnesses and while referring to the cross-examination, it is concluded that no one was present on the spot. It is, however, indicated that there was some whispering that roof has been pulled down by the landlord-petitioner. The findings of the Rent Controller in this regard are absolutely clear which deserve to be recorded and read as under:
"Tenant Harbans Lal says that he is a tenant since 1954 which means that he is in possession for the last 27-28 years. According to Babu Ram Gupta, building expert the age of such structure was only 20 years. However, age of second class building could be upto 40 years but it shall differ from type of material used. Merely because the ejectment petitions or other litigations had already been contested by the parties, it cannot be presumed that Walaiti Ram had made the roof to the room in dispute fall of his own. Statement of Charanjit Singh RW2 is not of much help because he did not know anybody earlier. It is quite improbable that if some persons are sleeping or living in a room any person will dare to go on the roof and demolish the roof to fall on the heads of these persons which will be a criminal offence. From files under Sections 107/151 Criminal Procedure Code statement of parties it appears that both parties were bound under Section 107/151 Criminal Procedure Code on 29th December, 1980 after this roof had fallen. Immediately after falling of the roof Walaiti Ram filed a suit for restraining Harbans Lal from constructing the roof himself and stay was granted by the Court and then Harbans Lal come with the application under Sections 10 and 12 of East Punjab Urban Rent Restriction Act. When tenant is in possession of one room and whole of the roof on that room had fallen, during the rainy season, and there is no presumption that Walaiti Ram had made it fall...."
11. The Appellate Authority found few other reasons for reversing the judgment of the Rent Controller. It has been observed that the expert should have recorded reasons for falling of roofs. The absence of reasons have led to the presumption that roof was pulled down by the landlord-petitioner. Then prolong litigation between parties is another reasoning given by the Appellate Authority to jump to the conclusion that the landlord-petitioner pulled down the roof. This leap frogging cannot be appreciated because there are too wide a gap. Unless there is some evidence showing that roof was pulled down by the landlord-petitioner, it is absolutely unwarranted for the Appellate Authority to jump to such a conclusion especially when the Rent Controller has recorded a contrary findings. Therefore, the views of the Rent Controller deserved to be restored.
12. I am further of the view that the condition of the building was quite dilapidated in 1982 and after 20 years it is bound to further deteriorate. In any case, the roof of the room in which the tenant-respodnent No. 1 has been residing as a tenant has collapsed and it is unfit and unsafe for human habitation. The Appellate Authority has not acted in accordance with the Rent Controller. Therefore, the judgment of the Appellate Authority is liable to be set aside and the judgment of the learned Rent Controller dated 23rd April, 1982 deserves to be restored.
13. It is true that under Sub-section (5) of Section 15 of the Act revisional powers of this Court should not be used in a routine matter. However, in cases where conclusion recorded by the Appellate Authority are perverse or not possible to be accepted on the material placed on record then there is no bar on the exercise of such power. The argument of the learned counsel has to be examined, in the light of the view taken by Supreme Court in Molar Mal v. Kay Iron Works (P) Ltd. 2000(4) S.C.C. 285. In that case Sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 was considered and the views of their Lordships read as under:-
"Similarly, we are of the opinion, on the facts and circumstances of this case, the argument of the tenant that the High Court exceeded its jurisdiction by interfering on a finding of fact arrived at by the Appellate Authority is also to be rejected. It is to be noticed that under Sub-section (6) of Section 15 of the Act, the High Court as a revisional authority has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order and is entitled to pass such order as it may deem fit. The power vested in the High Court under this provision of law is much wider than the power conferred on the High Court under Section 115 Civil Procedure Code. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in a given case can go into the finding of fact arrived at by the Courts below and, if found necessary, reverse such a finding of fact. Of course, this Court has in many cases cautioned that this power is not to be used as a revisional Court in a routine manner but to be used only when the revisional Court comes to the conclusion that the last Court of fact has arrived at a conclusion which is perverse or not possible to be accepted on the materials placed before it. In other words, if the High Court comes to the conclusion that the finding of the first appellate Court is based on no evidence then in a given case it is open to the High Court to interfere with such finding of fact. In the instant case, we are not convinced that the High Court has exceeded its jurisdiction while allowing the revision of the landlord on this count. Therefore, this question urged on behalf of the appellant is also rejected."
14. It is well settled that although power of the Appellate Court is wide enough even to reverse findings of facts but still it is restricted. This principle has been stated by Viscount Simon in the case of Watt v. Thomas 1947 Appeal Cases 484, in the following words:-
"But if the evidence as a whole can reasonably be regraded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a Tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight."
"This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other Tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
15. The observations of Viscount Simon were quoted with approval by the Supreme Court in the case of Sarju Prasad v. Jwaleshwari Pratap Narain Singh, A.I.R. 1951 S.C. 12. The aforementioned principles applicable to first appeal under Section 6 of the Code of Civil Procedure, 1908 were applied by their Lordships to the election disputes carried in first appeal to the Supreme Court. In the case of Laxmi Narayan v. Returning Officer, A.I.R. 1974 S.C. 66, variety of reasons have been stated by the Supreme Court as to why the powers of the first Appellate Court are required to be confined to certain limits. The observations of their Lordships in this regard read as under:-
"55. Section 116A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition. The appeal lies both on issues of law and facts. Section 116C applies the Code of Civil Procedure as nearly as possible. Hence the present appeal is in the nature of a first appeal from decree under that Code. The power of the appellate Court is very wide. It can re-appraise the evidence and reverse the trial Court's findings of fact. But like any other power it is not unconfined; it is subject to certain inherent limitations in relation to a conclusion of fact. While the trial Court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanor, the appellate Court is confined to their evidence oh record. Accordingly, "the view of the trial Judge as to where credibility lies in entitled to great weight." (See Veeraswami v. Narayya, A.I.R. 1949 P.C. 32). However, the appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court. (See Sarju Prasad v. Raja Jwaleshwari Pratap Narain Singh), (A.I.R. 1951 S.C. 120)=(1950) S.C.R. 781 at p.784 per Mukherjea J.). This limitation on the power of the Appellate Court in a first appeal from decree, on principle will also apply to an election appeal under Section 116A. It has been so extended by this Court. Whether we should believe the witnesses or not involves how far we should enter into facts.
"No doubt, an appeal before this Court under Section 116A is an appeal, on facts and law; still the practice of the Courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanor and judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong."
(See Narbada Prasad v. Chhaganlal, A.I.R. 1969 S.C. 395=(1969)1 S.C.R. 499 at p. 504 by Hidayatullah, C.J.) It should also be borne in mind that in the instant case the High Court has held Dhote not guilty of the alleged corrupt practice which is a quasi-criminal charge. This Court should be slow to disagree with the finding of the High Court based on appreciation of evidence. (D.P, Mishra v. Kamal Narain Sharma, (A.I.R. 1971 S.C. 856 at per Shah J.). The appellants should put their case within the scope of this limited review; otherwise they should not succeed".
16. When the principles laid down in the above mentioned judgments are applied to the facts of the instant case it becomes evident that the learned Appellate Authority mis-directed itself by-reversing the findings of facts which are based on surmises and conjectures. As already discussed above the findings have been reversed not on the basis of some left out evidence but on the imaginary reasoning preferred by the Appellate Authority. Therefore, there was no justification for the Appellate Authority to reverse the findings recorded by the Rent Controller.
17. For the reasons recorded above, this petition succeeds. Accordingly, the ejectment petition filed by the landlord-petitioner is allowed and the petition filed by the tenant-respondent No. 1 under Section 10 and 12 of the Act are dismissed. The tenant-respondents are directed to hand over vacant possession of the demised premises to the landlord-petitioner within a period of six months from today provided the tenant-respondent file an undertaking before the Rent Controller to that effect on or before 21st July, 2003. If no undertaking is filed within the time then the landlord-petitioner shall be entitled to initiate execution proceedings and no extension of period shall be deemed to have been granted.