Punjab-Haryana High Court
Pritam Singh vs Om Parkash Adya on 5 August, 1999
Equivalent citations: (2000)124PLR281
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a landlord's Civil revision under section 15 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) and it has been directed against the judgment dated 31.1.1983 passed by the Appellate Authority, Ludhiana who reversed the judgment dated 5.11.1979 passed by the Rent Controller, Ludhiana ordering ejectment of the tenant from the demised premises. 2. The brief facts of the case are that Pritam Singh landlord filed an ejectment application under section 13 of the Act for seeking eviction of his tenant Om Parkash from the demised shop forming part of property unit No. B-II-1755/1755 (new B-VI-407 (old), described in the head note and para No. 1 of the ejectment petition and shown red in the site plan Ex.PW.6/A and AW4/2 and yellow in AW.7/2. The shop in dispute was stated to have been previously owned by Vidya Parkash who let it out to Om Parkash tenant with effect from 1.11.1964 on the basis of the Rent Note executed on 29.10.1964 at the monthly rent of Rs. 30/-. Vidya Parkash sold the property including the demised shop to Pritam Singh landlord-respondent and his brother Gurkirpal Singh vide sale deed dated 12.11.1969. Pritam Singh landlord sought the ejectment of the tenant from the tenanted shop on the ground of having not paid the arrears of rent at the rate of Rs. 30/- per month with effect from 1.10.1973 and he having illegally replaced the rotten wooden beam by an iron girder on the front side of the shop without the consent of the landlord-respondent and the demised shop being unsafe and unfit for human habitation. Gurkirpal Singh was stated to have applied to the Municipal Corporation for reconstruction of the portion of the building which fell to his share in partition proceedings as the same was stated to be in dilapidated condition and he having reconstructed his share of the building on the basis of the building plan sanctioned by the Municipal Corporation. Pritam Singh, landlord stated to have requested the tenant to vacate the demised shop so that it could be reconstructed by him, but he has refused to do so. Thus the ejectment of the tenant was sought by the landlord on the ground of arrears of rent; that the building has become unsafe and unfit for human habitation and that the tenant has committed such acts which are like to impair the value or utility of the demised premises.
3. Notice of the petition was given to the tenant who filed reply and denied the allegations of the Landlord. According to the respondent that building was perfectly in safe and sound condition. He denied having replaced any wooden beams in front of the shop with iron girders and according to him it was already in existence when he took the shop on rent from its original owner Shri Vidya Parkash in the year 1964. The tenant also tendered arrears of rent along with interest and costs.
4. On the pleadings of the parties, Rent Controller, framed the following issues:-
1. Whether the respondent is liable to ejectment on the grounds mentioned in para No. 7 of the application ? OPA.
2. Whether notice served upon the respondent is invalid? OPA
3. Relief.
5. Parties led oral and documentary evidence in support of their case and on conclusion of the proceedings, learned Rent Controller decided issue No. 1 in favour of the landlord and against the tenant holding that the building is unsafe and unfit for human habitation. Issue No. 2 was decided against the tenant and finally vide order dated 5.11.1979 learned Rent Controller allowed the petition of the landlord and ordered ejectment of the tenant from the demised shop. Aggrieved by the order of the Rent Controller, the tenant filed the appeal before the Appellant Authority, Ludhiana which vide impugned judgment 31.1.1983 set aside the findings of the Rent Controller on issue No. 1 and dismissed the petition of the landlord. This time it is the landlord who has come in the revision before the High Court.
6. I have heard Ms. Hemani Sareen on behalf of the petitioner. No assistance has been given from the side of Om Parkash tenant. I have gone through the record of this case with the assistance rendered by the learned counsel for the petitioner.
7. Learned counsel for the petitioner has assailed the judgment of the Appellate Authority on the ground that the evidence of the Experts examined by the landlord proves on the record that the building has become unsafe and unfit for human habitation. She has further stated that the collective oral evidence of AWs and RWs further strengthen the case of the petitioner. She further submits that the adjoining shop to the demised shop have been rebuilt, therefore, an inference should be drawn in favour of the landlord that the condition of the shop has become unfit and unsafe for human habitation. Also it was contended on behalf of the petitioner that it has come on the record that the shop in question is made of Nanak Sahi bricks and even the Expert of the tenant admits that the age of the building is 50/60 years old. So much so, the tenant lodged the report before the police on 9.10.1976 and that report was also made by him in which he had acknowledged about the condition of the shop in question.
In short the learned counsel for the petitioner submits that all the circumstances, lead to only inference that the building in question is unsafe and unfit for human habitation. It was further argued by the learned counsel that it is proved on the record that the tenant had replaced girder from the shop in question on the front side wall and this act of the respondent is likely to impair the value and utility of the property. Learned counsel has also relied upon certain case law which I will deal in the subsequent portion of the judgment. At this stage, I may only meet with the submissions of the learned counsel for the petitioner. Learned counsel submitted that it is not to be seen whether the demised premises have collapsed or not. If there is threat to the building that it may collapse at any time even in the near future, in such a circumstance, it should be held by the High Court that the building has become unsafe and unfit for human habitation.
8. I have considered the submissions raised by the learned counsel for the petitioner and am of the considered opinion that all the contentions raised by the learned counsel for the petitioner are totally devoid of any merit. I may deal with the revision where there are reverse finding interse. Rent Controller has gone in favour of the landlord while the Appellate Authority has gone in favour of the tenant. In these circumstances, it will be appropriate on my part to examine evidence afresh.
It is admitted case of the petitioner that at the first instance the property was owned by Vidya Parkash from whom it was purchased by the petitioner Pritam Singh and his brother Gurkirpal Singh vide sale deed Ex.A.1. Vidya Parkash appeared as AW.3. According to his examination-in-chief, it was his ancestral property. Shop was made of small bricks. It was old building and he gave the shop in dispute on rent to Om Parkash vide rent not Ex.A.2. Shri Vidya Parkash was categorical in his examination-in-chief that the roof of the shop was made of three wooden beams, batons and one girder. It is the same girder which is alleged to have been replaced by the tenant. This will falsify the stand of the landlord when he alleged that the tenant by replacing the girder which has been installed at the front side of the shop is likely to impair the value and utility of the property. Firstly, this girder was already in existence when the shop in question was let out to tenant Om Parkash. Otherwise also, it cannot be said that by putting one girder in front of the shop in question has impaired the value and utility of the property in question. Shri Vidya Parkash (PW.3) in the cross-examination had to admit that the condition of the shop was good. His statement can be quoted as follows:-
"The condition of the shop is good through it is old shop."
9. Merely that the building is old is no criteria to jump to the conclusion that it has become unsafe and unfit for human habitation. To prove the issue of unsafe and unfit for human habitation, landlord has examined Shri Komal Singh an Expert who appeared as AW.4. This witness inspected the shop in dispute on 22.5.1977 in the presence of the counsel for the parties. The witness stated that the walls of the disputed shop are built up of old tile small size bricks with exception of north wall which is of kacha bricks and eastern wall is of modern type of pucca bricks. How this witness declared the building unsafe and unfit for human habitation is that he had noticed a crack measuring 1/4" X 1-1/2" from the floor to the roof level. As per this witness the roof of the shop is made of brick tiles and the terrace of the shop was cement pointed. According to this witness, the age of the shop if 75/80 years/Finally this witness stated in examination-in-chief that the shop has become in dilapidated condition. It is unsafe and unfit for human habitation and it can collapse at any time and that it may cause a human loss to the occupant as well as to the owners. It has also been stated by Komel Singh (PW.4) that the building is of third class. In the cross-examination the witness had to admit that common wall is 1 and 8" wide. From inside the shop no part of the wall is visible because of the distance of the shelves and plywood. Further this witness stated that no water from the roof of the room has been thrown on the common wall. From the above cross-examination it would appear that the witness had not seen actual condition of the walls rather he is making observations just to oblige the landlord. Further the trend of cross-examination of this witness would show that he is interested witness. A suggestion was put to this witness that his son was Sandu of Shri Pritam Singh landlord. The witness stated that he did not know if his son had any relationship with Pritam Singh. The witness admitted that if a wall adjoining the wall of the shop in dispute and abutting and adjoining the wall is built, it will lend great support to the shop in question. He further admitted that on the roof of the shop in dispute there was flooring of tiles which were pointed by cement. This statement of the witness in the cross-examination collapses the case of the petitioner-landlord when he tried to depict that the condition of the building had deteriorated to the extent that it has become unsafe and unfit for human habitation. Even from the statement of Shri Pritam Singh, landlord who appeared as AW.6. I have not been able to draw an inference that the shop in question has become unsafe and unfit for human habitation. If the adjoining building of the shop in question has been reconstructed, it would not lead to an irresistible conclusion that the condition of the shop in question is bad. Old age of the building per se may not be a correct criteria to hold that the building is unsafe and unfit for human habitation. As against the statements of the witnesses of the landlord, we have on record the statement of the Expert Shri B.C. Katyal who appeared from the side of the tenant. He submitted his report Ex.RW.5/1 and as per observations of this expert, he visited the shop on 21.10.1979 and found as follows:-
"Brick work in lime in small bricks (Nanakshahi) which are in sound condition free from salt effect. Inside cement plaster. Floor brick on edge and top cement plaster. Two wooden beams adjoining each other in the centre. One wooden beam and one steel girder adjoining each other on the front. One wooden beam and one steel girder adjoin each other on the front. There were wooden batons and wooden planks. There was top tile terracing. North and front wall is 13-1/2" thick. East and West Walls 18" thick. On bazar side 4-1/2" wide project for sign board of R.C.C. provided by the Municipal Corporation."
The Expert observed that the walls structure of the shop on the east and west side was 18" thick and from/south wall is 13-1/2"thick with R.C.C. He further observed that the girder which was placed on the front side wall appears to have been inserted about 15/16 years ago. He did not notice any crack in any of the walls of the disputed shop and the same are in sound condition. Adjacent to East and West wall of the shop in dispute new walls have been constructed by the neighbourers which also give the extra support and strength to the walls of the shop in dispute. Finally it was observed by Mr. Katyal as follow:-
"After thorough inspection I reached the conclusion that the overall condition of the shop is quite safe and fit for human Habitation. From my inspection of the existing condition of construction of the shop, I am of the considered opinion that there is no danger of any kind to the structure of the shop for another more than twenty five years."
10. The statement of the Expert, of course, is corroborative piece of evidence but in such like cases the Expert evidence is of valuable assistance to the Law Courts in order to derive a conclusion as to whether building is unsafe and unfit for human habitation. Apart from the statement of the Expert we have the statement of Shri Jagdish Chander (RW.2) who deposed that the condition of the shop was good. He also admitted that there is Bharat Vaishano Hotel adjacent to the shop in dispute. The owner of that Hotel has constructed a new building. The walls of the hotel are separate. Of Course, this witness is partner of the son of the tenant. Apart from the statement of Jagdish Chander (RW.2) there is statement of Girdhari Lal landlord whose shop is at a distance of four shops from the disputed shop. He too stated that the condition of the shop was good. Similar is the statement of Mohinder Singh (RW.4). His shop is opposite to the shop in question. He had also supported the case of the respondent. In the cross examination the witness further deposed that the brother of the landlord had constructed new wall adjoining to the wall of the shop in dispute. Thus oral evidence of the respondent is corroborated by an Expert whose statement is more authentic and reliable as compared to the Expert of the landlord. This court is inclined to hold that the building in question has not become unsafe and unfit for human habitation. The reasons given by the Appellate Authority are more sound and convincing than that of the Rent Controller whose conclusion on the evidence were faulty. The final position which has emerged out is that the shop is an old one. Some part of the shop is made of Nanakshai bricks but so far as the condition of the shop is concerned, there were not serious cracks in the walls or roof. Rather the walls of the shop in question get strength and support from the new walls which have been constructed on the either side of the shop in question.
11. Reverting to the allegations of the landlord that the tenant has impaired the value and utility of the property, I am of the opinion that the landlord has miserably failed to prove his case. His allegations were that respondent has replaced girder on the front side of the shop in question. This case stands disproved even from the statement of Vidya Parkash (AW.3) the previous landlord who deposed that when the shop in question was let out to the respondent-tenant, the girder was in existence. Even with the replacement of one girder by the tenant will not make a case to draw an inference that the tenant has committed such acts which are likely to impair value or utility of the property. A reading of the petition under Section 13 of the Act would also show that the landlord has not alleged specifically on which date and how the tenant has committed such acts which are likely to impair the value or utility of the property.
12. Learned counsel for the petitioner wanted to strengthen her arguments by placing reliance upon the case law. The first judgment which was relied upon by the learned counsel is (1967)69 the Punjab Law Reporter 251 Shakuntla Devi v. Daulat Ram,. The observations can be quoted as follows:-
"Held, that the conception and standards of the period when slums were considered fit enough for habitation must be discarded. Merely because a building may be so imminently dangerous as to be likely to fall down within a few weeks or months, it should not induce the Court to hold mat it can by no means be considered to be a building which is unfit or unsafe for human habitation. The approach that unless the precise part of the building in question is in almost a ruinous state and is likely to tumble down within a short duration of time, it cannot be held to be unsafe or unfit for human habitation for the purpose of the ejactment of the tenant, is not correct. Apart from the danger to those who sue the building, it must be remembered that to postpone its reconstruction or effective repairs is likely to cost more in terms of money to the owner to have the needful done later. These aspects deserve to be fully kept in view when the question of a building being unsafe or unfit for human habitation is examined. The desire of the landlord to remove the cause of rendering the building unfit or unsafe is also not a wholly irrelevant factor and it is a somewhat inapt approach to treat him as an unconcerned stranger. If malafides are inferable on his part or it can be shown that the landlord is trying to overreach the Court and is seeking eviction of the tenant for some ulterior purpose, this aspect is also entitled to weight.
Held further, that, subsection (4) of Section 13. sufficiently safeguards the interests of a tenant who has been evicted from the premises male fide or with ulterior purpose. This provision also seems to suggest that a building need not be in the immediate danger of collapsing for the purpose of bringing the case within the purview of section 13(3)(ii)of the Act."
This judgment is not helpful to the petitioner. Whether the building is unsafe and unfit for human habitation will be a primarily question of fact which can be proved or disproved through evidence. In the present case it stands proved through statement of Mr. Katyal coupled with the statements of the witnesses that the condition of the building is quite safe and sound. The reasons given by the Expert of the landlord when he declared the building as unsafe and unfit for human habitation are not based on data. In fact the Expert did not take into consideration the actual condition of the walls and the roof. As per his own admission, the cracks in the wall were of 1/2" at the most. A single crack would not make ipso facto the building unsafe and unfit for human habitation. We do not know under what circumstances, the adjoining buildings were built. If a persons just demolishes a part of the building in order to reconstruct a new one of his own design, it does not mean that the demised premises too has become unsafe and unfit for human habitation. There is no evidence on the record to show that the brother of the petitioner landlord demolished the adjacent portion of the building because it became unsafe and unfit for human habitation. The second citation relied upon by the learned counsel for the petitioner is (1997-3)117 P.L.R. 31 Pawan Kumar v. Gulzari Lal .This judgment is again distinguishable on facts. The ratio of the judgment is that the landlord is supposed to prove that the building is likely to fall down at any time. The evidence led in that case was that the premises were built of Nanakshahi bricks about 100 years back and during the pendency of the revision first floor and other part of the building had totally collapsed. In these circumstances, the eviction of the tenant was upheld. There is no such evidence on the record in this case that during the pendency of the present revision petition any wrong has happened to the demised premises or to the adjoining premises.
13. Learned counsel in order to supplement her submissions that the tenant has materially impaired the value or utility of the property relied upon 1981(2) R.C.R. 237 Narain Singh v. Bakson Laboratories etc? The judgment is not applicable. In the cited case the tenant converted verandah of the residential building into room. There is no such evidence in the present case. Further it was observed in the cited judgment that while assessing impairment of the value or utility of the building it has to be examined from the landlord point of view. There is no doubt with regard to this proposition. The onus on the landlord to establish that the tenant has committed such acts as are likely to impair the value or utility of the property. Learned counsel for the petitioner relied upon (1980)82 P.L.R. 11(SN) = 1980(2) All India Rent Control Journal 729 Om Pal v. Shri Anand Swarup. In the cited case the tenant of the demised shop had constructed a wooden balcony (parchhati) with manhole in it, in the room of the shop which balcony had put additional weight on the supporting walls. In these circumstances, the High Court held that it is not a minor alteration but a substantial structural change which is likely to impair materially the value or utility of the shop in question. Even the Expert of the petitioner has not stated in the present case that by inserting the alleged criteria on front side of the shop in question the value or utility of the building has diminished considerably or the alleged act of the tenant was likely to impair the value or utility of the property. The allegations of the landlord to this extent were totally vague as I had stated above in this judgment. I have examined totality of the circumstances and made reassessment of the evidence led by the parties in view of the conflicting orders of the Rent Controller and the Appellate Authority and have come to the conclusion that the order passed by the Appellate Authority is just, proper, reasonable and sound. It was based on correct appreciation of evidence. Learned Rent Controller, in my view fell in error when he formulated the. opinion in favour of the landlord. In these circumstances, I affirm the judgment of the learned Appellate Authority.
14. Finally I do not see any merit in this revision and dismiss the same. There is no order as to costs as the lawyer of the respondent has not given any assistance in this case.