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2000 DIGILAW 21 (PNJ)

Ram Nath v. Shri Kanth

2000-01-11

V.S.AGGARWAL

body2000
Judgment V.S.Aggarwal, J. 1. The present revision petition is directed against the judgment of the learned Appellate Authority, Ferozepur, dated 7.1.1994. By virtue of the same, learned Appellate Authority set aside the order of the learned Rent Controller, Ferozepur, dated 19.10.1992 and instead passed an order of eviction against the petitioner giving him a period of three months to vacate the premises. 2. The relevant facts are that respondent Shri Kanth had preferred a petition for eviction against the petitioner with respect to the suit premises The sole surviving ground of eviction in the present revision petition is as to if the property in question has become unfit and unsafe for human habitation or not. The respondents case was that the property in question has become unsafe and unfit for human habitation. The entire structure is old and can fall at any time. The roof of the rooms and the kitchen are made of sirkies and balas. The sirkies are in broken condition. The roof was also stated to be broken at places and open to sky. The walls of the rooms were made of old type bricks with mud mortar. The mud plaster had broken down at many places. Deep cracks had developed in the walls. Similarly, roof of the kitchen was stated to be made of same material and cracks are stated to have developed in the said roof. It can fall at any time. Plea was raised that roof of the barsati on the first floor was also made of sirkies and wooden balas. The roof was in broken condition. The walls of barsati were stated to be made with bricks of old type and mud but were not plastered with any material or mud. The entire structure was stated to be in a dilapidated condition Which can fall at any time. The southern portion of the house was stated to be in the possession of one Iqbal Singh. The portion in possession of Iqbal Singh was also made of similar material and had become unfit and unsafe for human habitation. That portion had fallen down. The debris is lying in the courtyard. 3. The petitioner contested the eviction petition. Preliminary objection was taken that the petition is barred by the principles of res judicata because earlier petitions for eviction had been filed and were dismissed. That portion had fallen down. The debris is lying in the courtyard. 3. The petitioner contested the eviction petition. Preliminary objection was taken that the petition is barred by the principles of res judicata because earlier petitions for eviction had been filed and were dismissed. It was admitted that the roofs of the premises were made of sirkies and balas. It was, however, denied that the condition of the suit premises is such that it can be termed that it is unfit and unsafe for human habitation, it was asserted that the walls of the rooms had been built with new and old type of bricks. It was denied that there were any cracks in the walls of the premises in dispute. 4. The learned Rent Controller on appreciation of evidence held that it has not been established that the property in question is unfit and unsafe for human habitation. The petition had been dismissed. 5. An appeal was preferred. The findings of the learned Rent Controller were set aside by the learned Appellate Authority. Hence, the present revision petition. 6. On behalf of the petitioner, it was pointed out that earlier a petition for eviction had been filed in the year 1975. it was withdrawn on 7.10.1976 vide a copy of the order Exhibit DX. On 10.5.1977 another petition was filed for personal requirement which was dismissed on 7.11.1978. Thereafter, yet another petition was filed in March. 1979 which was also dismissed in November, 1980. On the basis of these facts, learned counsel contended that when earlier petitions for eviction were filed, the subsequent eviction petition as a result of which present revision petition arises, would not be maintainable. 7. There is no over emphasising the fact that when earlier ground of eviction was available which was taken and adjudicated upon, then the subsequent petition on the same cause will not be maintainable. However, if earlier the ground of eviction was not available and the cause arises after the petition for eviction had been dismissed, there is no bar in filing the subsequent petition. Earlier, the matter had never been heard and adjudicated upon nor it is shown in the present case that the said ground of eviction was available. Consequently, the principles of res judicata could not be attracted. 8. Earlier, the matter had never been heard and adjudicated upon nor it is shown in the present case that the said ground of eviction was available. Consequently, the principles of res judicata could not be attracted. 8. Reverting back to the ground of eviction as to if the property in dispute has become unfit and unsafe for human habitation, it is not in controversy that another portion which was previously in occupation of one Iqbal Singh has since fallen. The attention of the Court was being drawn to the fact that it was bearing a separate Municipal No. But the learned Appellate Authority has clearly drawn a conclusion that it is one composite building, it would certainly, therefore, reflect on the condition of the present portion and it must follow that the present structure also is old. 9. All the same, the respondent-landlord had to prove independently that the suit property had become unfit and unsafe for human habitation. As referred to above, respondents claim was that sirkies and balas had outlived their value and utility and they can fall at any time. The respondent has examined Kulwant Singh, AW1, a qualified Engineer. He stated that the condition of the building in dispute is bad and it can fall at any time. Sham Lal, AW3, is a photographer and had produced the photographs Exhibits A3 to A26 depicting the condition of different parts of the premises in dispute. The petitioner had examined one Dhanna Singh, RW1, Retired Sub Divisional Engineer, as a building expert. As per his report, the building in dispute was fit for human habitation. 10. Though there are contradictory reports of two building experts, the Appellate Authority had chosen to believe the building expert produced by the respondent-landlord. However, in this regard photographs Exhibits A3 to A26 assumes great importance, Certain photographs of the building in dispute had been taken from different parts. It shows that there are cracks in the wall and much wider crack in the roof. They show that the bricks are bulging out and mud and mortar had fallen from the said structure. Wooden planks of the roof is bereft of any plaster, it looks that it is loosing its place. It shows that there are cracks in the wall and much wider crack in the roof. They show that the bricks are bulging out and mud and mortar had fallen from the said structure. Wooden planks of the roof is bereft of any plaster, it looks that it is loosing its place. When the bricks are bulging out and is bereft of plaster and the roof, as mentioned above, is in a bad shape, there is no ground to disturb the finding arrived at by the learned Appellate Authority. It must follow that the building in dispute has become unsafe and unfit for human habitation. 11. Learned counsel for the petitioner has relied upon a large number of precedents so as to urge that it cannot be stated that the building in dispute has become unsafe and unfit for human habitation. Reliance was placed on the decision of this Court in the case of Trilok Chand v. Smt. Dropati Devi and Ors., 1990(1) Rent Control Reporter 30. In the cited case, one of the grounds of eviction was that the building was stated to have become unfit and unsafe for human habitation, it was an old building. Two wooden planks had fallen. The roof was leaking. This Court held as under :- - "......Solely the building being old and being built of small bricks is no ground to assume of infer that it has outlived its life and is unsafe and unfit for human habitation......" 12. It is clear from the aforesaid that the decision was confined to the peculiar facts therein, it is not that two wooden planks here are loose. The photographs clearly show that the walls and the roof all are in a bad shape. 13. In that event reliance was placed on the decision of this Court rendered in the case of Amar Chand Tangri v. Evergreen Hosiery, Ludhiana, 1992(2) Rent law Reporter 651. In the cited case, petition for eviction was filed on the ground that the property in question has become unsafe and unfit for human habitation. The upper portion of the building has also fallen. There was no evidence that the suit property had been damaged or rendered weak. This Court held that the petition for eviction must fail. Indeed, reliance on the said decision is misplaced because here, as noted above, even the suit premises itself is not fit for human habitation. The upper portion of the building has also fallen. There was no evidence that the suit property had been damaged or rendered weak. This Court held that the petition for eviction must fail. Indeed, reliance on the said decision is misplaced because here, as noted above, even the suit premises itself is not fit for human habitation. 14. In that event, the learned counsel for the petitioner argued that the roof has since been repaired and thereupon relied upon the decision of this Court in the case of Smt. Phoolan Rani v. Smt. Pushpa Wati and Ors., (1992-2)102 P.L.R. 495 and the decision of the Supreme Court rendered in the case of Shadi Singh v. Rakha, (1992-2)102 P.L.R. 163. Supreme Court in Shadi Singhs case (supra) had concluded that the subsequent event can be taken note of and once the tenant has repaired the roof, order of eviction cannot be passed. 15. That being the legal position, the question for consideration would be as to whether the petitioner can have the advantage of ratio decidendi of these judgments or not. The answer would be in the negative. The photographs read with the report of the building expert of the respondent which reconcile clearly show that the condition of the wall and the of is very bad. Even the roof had loose wooden planks with cracks. It is not that when the building falls one would say that the building is unsafe and unfit for human habitation. Even at this stage, it is patent that the condition of the building is such that the only logical conclusion that can be arrived at is that it is unfit and unsafe for human habitation. Thus, the finding of fact required no disturbance. 16. For these reasons, the revision petition being without merit must fail and is accordingly dismissed.