Punjab-Haryana High Court
Manohar Lal (Now Deceased) Through His ... vs Dalip Singh on 25 February, 2012
Equivalent citations: AIR 2012 (NOC) 400 (P. & H.)
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR-761-1996 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-761-1996 (O&M)
Date of decision:25.02.2012
Manohar Lal (now deceased) through his LRs ...Petitioners
Versus
Dalip Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. M.L.Sarin, Senior Advocate, with
Ms. Hemani Sarin, Advocate, for the petitioner.
Mr. Alok Jain, Advocate,
for the respondent.
*****
RAKESH KUMAR JAIN, J.
The landlords are in revision.
The landlords filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short "the Act"] in respect of the demised premises (shop), inter alia, on the grounds of non-payment of arrears of rent and the building having become unfit and unsafe for human habitation. The precise averment made in the eviction petition is as under:
"2(b) That the shop fully described in the head note of the application is in a dilapidated and dangerous condition and is falling down and has become unsafe and unfit for human habitation. The age of the disputed shop is about 100 years old and the disputed shop is crumbling down. The buildings on the Northern and southern sides of the disputed shop are also CR-761-1996 (O&M) [2] :::::::
in a fallen condition and are unsafe and unfit for human habitation."
In reply to the aforesaid paragraphs, it was averred that the demised premises is in a good condition. The landlords wanted to demolish it for letting it out on a higher rate of rent after reconstruction. All other averments made here-in-above in the eviction petition were denied.
The landlords filed replication in which the averments of para no.2(b) of the written statement was denied and that of the eviction petition were reiterated. On the pleadings of the parties, the learned Rent Controller framed as many as 3 issues. Both the parties led their oral as well as documentary evidence. Ram Paul, Photographer was examined as AW2, who had proved the photographs of the demised premises, and Narinder Singh Bhatia, Building Expert was examined as AW3 who had proved his report as Ex.AW3/A and site plan as Ex.AW3/B. The tenant examined B.S.Sidhu, Retired S.D.O. (B&R) as RW1, who had proved his report as Ex.R1 and site plan as Ex.R2. Issue No.1 became redundant after the rent was tendered but issue No.2 was discussed in detail and the learned Rent Controller decided it against the landlords while dismissing the eviction petition on 31.05.1988.
In appeal, the landlords moved an application for appointment of a Local Commissioner as it was pleaded that on the intervening night of 25.09.1988/26.09.1988, a considerable portion of the roof and part of the northern wall of the demised premises had fallen down. The application was contested by the tenant by way of a reply in which it was averred that "a portion of the wall of the Kotwali fell upon the roof of the shop in dispute and on account of that a portion of the roof as well as portion of the northern wall of the shop in dispute has also fallen". Although an additional issue No.2-A was framed by the Appellate Authority but no finding was recorded on it because counsel for the landlords made a statement that the said issue, in the context of the facts and circumstances of the case, had become redundant. The learned Appellate Authority though observed that "there is no dispute regarding the proposition of law that when a building has become unfit and unsafe for human habitation and the eviction petition has been filed on the said ground, the re-construction of the building by the tenant would not defeat the CR-761-1996 (O&M) [3] :::::::
rights of the land-lord, if it is pleaded and proved on the record", yet the appeal was dismissed on the ground that the landlords have failed to specifically plead the details of damages and the particulars of the condition as to how the building has become unfit and unsafe for human habitation and even if there are subsequent events which have further caused deterioration of the building, these have to be incorporated in the pleadings and since it has not been done so by the landlords, therefore, the evidence available on record was not considered and the appeal was dismissed.
Learned counsel for the petitioners has submitted that the Courts below have committed a patent error of law in dismissing the eviction petition solely on the ground that each and every detail about the damage to the building rendering it to be unfit and unsafe for human habitation has not been pleaded by the landlords in their eviction petition because in its absence, the tenant had no opportunity to rebut or contradict the same. He has relied upon a decision of this Court in the case of Tripta Devi and another v. Jagdish Kumar, 2007(4) PLR 479 to contend that it would suffice for the landlord to plead in his eviction petition that the building has become unfit and unsafe for human habitation and the tenant deserves to be evicted on that ground as the evidence is not to be pleaded but it should correlate with the basic plea taken in the eviction petition. He has further submitted that when the application for appointment of Local Commissioner was moved during the pendency of appeal, it was accepted by the tenant that the substantial portion of the building has fallen down and once it is so admitted, there was no occasion for the landlords to amend their pleadings in order to incorporate the admission of the tenant. He has also submitted that the learned Appellate Authority has erred in discarding the report of the expert only on the ground that the expert always speaks for their masters.
In reply, it is argued by learned counsel for the tenant that the Courts below have taken a concurrent view that in the absence of pleadings, no evidence can be appreciated. He has submitted that the wall of Kotwali fell down on the roof of the demised premises as a result of which it cave in from some places and its northern wall was also demolished but that would not be a circumstance to hold that the demised premises by itself had become CR-761-1996 (O&M) [4] :::::::
dilapidated rendering it to be unfit and unsafe for human habitation. He has relied upon a decision of this Court in the case of Lachhman Dass v. Charan Kaur, 1993(1) P.L.R. 47.
The petitioners also filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 [for short "CPC"] to place on record an order of this Court passed in CR-1143-1982 allowed on 23.04.1985 regarding a shop in the same building owned by Kishan Kaur which has been found to be unfit and unsafe for human habitation and the tenant has been ordered to vacate it. The application is contested by the respondent but as it relates to production of an order of this Court, therefore, it is allowed and the additional evidence (Annexure A-1) is taken on record.
I have heard both the learned counsel for the parties and perused the record with their able assistance.
The question involved in this case is as to "whether it is necessary for the landlord to give all the details about the damage and condition of the demised premises if the petition is filed for seeking eviction of the tenant on the ground that the demised premises has become unfit and unsafe for human habitation"? The landlords had categorically averred that the building is 100 years old and is falling down and is crumbling at many places. He led evidence to the effect that the intervening wall of the demised premises had fallen and the malba is lying in the shop in the form of a raised platform. He also produced the Building Expert who had proved his report in which he had averred that the demised premises is 70 years of age and the roof of both the rooms of it had already collapsed. The southern wall of the back room and the dividing wall of the two rooms had also collapsed. A girder has been placed at point `L' at the gap created by fallen wall. No wall had been constructed in place of the collapsed wall converting both rooms into one single room. However, the places in the northern and southern walls joined by the dividing walls had been repaired with mud-mortar. The debris of the fallen room and the walls is lying dumped in a portion of the demised premises which gave a look of the raised platform. The roof of this portion was re-constructed with earth over the tiles. The walls have bulged out and have been repaired extensively to avoid their collapse. The backside of the wall of the demised premises joins the CR-761-1996 (O&M) [5] :::::::
Kotwali and it was constructed with Kacha bricks and mud and it is in broken condition. Cracks have developed in the walls at some places and bricks of the wall have been fallen down at some places. The wall of full length and one feet wide had fallen down during the pendency of the eviction petition as a result of which one wooden baton of the roof had fallen down. The tenant had installed cement plate and reloaded the roof with fresh earth. One wall of the demised premises adjoins the shop of Jaswant Singh (neighbourer) and 3/4th portion of the wall had already fallen down.
Despite the aforesaid report, the learned Appellate Authority has held that since these things were not pleaded by the landlords in the eviction petition, therefore, there was no opportunity for the tenant to deny them and mere averment that the demised premises has become unfit and unsafe for human habitation is not sufficient. In this regard, the decision of this Court in Tripta Devi and another's case (supra) would be relevant, in which it was held as under:
"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 CR-761-1996 (O&M) [6] :::::::
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."
Insofar as the case of Lachhman Dass's case (supra) is concerned, that would not be applicable to the facts and circumstances of this case because it relates to a different ground of eviction in respect of impairment of value and utility of the demised premises. In such type of cases, no doubt, it is imperative for the landlord to state in his pleadings as to what are the material structural alterations carried out by the tenant which have resulted into impairment of value and utility of the building. Thus, in my view, the landlords have sufficiently pleaded about the ground of building having become unfit and unsafe for human habitation as it was averred that portion of it is falling down and it is crumbling at many places, which could be proved only by leading evidence, as has been done in the present case.
In view of the aforesaid discussion, the present revision petition is, thus, allowed and the orders of the Rent Controller as well as the Appellate Authority are hereby set aside. Consequently, the eviction petition filed by the landlords are hereby allowed and the respondent-tenant is directed to vacate the demised premises within two months from today.
February 25, 2012 (RAKESH KUMAR JAIN) vinod* JUDGE