Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 203 (PNJ)

Rattan Lal v. Ch. Panna Lal

2001-02-13

S.S.SUDHALKAR

body2001
Judgment 1. This revision-petition is filed by the tenant against whom the Rent Controller passed the order of eviction, which was confirmed by the Appellate Authority. The eviction, petition was filed by the respondent on the ground of non-payment of rent, and that the shop i.e., that premises for which the eviction is sought for, has become unsafe and unfit for human habitation. The Courts below upheld the plea of the respondent that the shop has become unfit and unsafe for human habitation. 2. I have heard learned counsel for the parties. 3. Counsel for the respondent took up a preliminary objection that the concurrent finding of facts by both the Courts below cannot be challenged in a Revision-petition. However, if a finding of fact is perverse or without any basis from the evidence, nothing stops the Court from going into the question. Therefore, what is to be seen is whether the findings arrived at are based on evidence or not ? 4. In this case, both the parties have led their evidence. The respondent-landlord has examined himself at AW-1, Lachhman Singh, a retired Civil Engineer at AW-2, Shri Prem Rehani, Building Inspector of Municipal Committee, at AW-3 and Shri Chhote Lal, mason at AW-4. 5. The petitioner has examined himself at RW-3 and has also examined Shri Mohd. Inam, mason at RW-1, Shri H. C. Goel, Retired Superintendent (BandR) at RW-2. 6. The Courts below have come to the finding that the shop has become unfit and unsafe for human habitation. When the matter was pending before the Appellate authority, Shri Pardeep Garg, Advocate, was appointed as Local Commissioner to inspect the building in question and he has given his report. 7. Counsel for the petitioner has argued that the condition of the building as stated by the Commissioner, cannot be said to be such that it is unfit and unsafe for human habitation. He has referred to the report wherein the Commissioner has stated that the front door of the shop is made of the old iron sheet (rusted) and is in broken condition and the same is fixed on old wooden frame. This certainly will not make the building unsafe for human habitation. In the report, it is further stated that the ceiling is in three parts. This certainly will not make the building unsafe for human habitation. In the report, it is further stated that the ceiling is in three parts. The first part of the ceiling consists of the old wooden rafters/tors out of which one Karry was repaired with patches of wood as shown in the site plan. First part of the ceiling of the shop is covered with tin and wooden planks and all the karries and tors were old and some of the karries were quite thin and were of different sizes. In the second portion of the ceiling, there were 13 karries out of which one is tor and this portion of the ceiling was covered with wooden fattis/planks out of which 1/2 portion was covered with sheets which is quite visible from the ground. There was termite action in one of the karries and on some portion of the wooden beam towards the Eastern side. There was extra wooden beam which rested on the brick pillar. 8. According to the report of the Local Commissioner, the third part of the ceiling consisted of 13 karries/rafters out of which six are tors and two rafters were of iron angle which seemed to be new and rest were wooden karries. The said part of the ceiling was covered with old small wooden fatties and there was see-through hole as shown in the rough site plan and this portion was sagged. The wooden beam in between the first and the second portion of the ceiling is rested to a brick pillar and similarly there is another brick pillar in between the second and third portion of the ceiling All the karries and tors were of different sizes and were not in alignment. Even the brick pillars as shown in the rough site plan, were not in alignment, with each other. 9. According to the report, the wall of the shop was made of big bricks which are laid in mud mortar. It is also stated in the report that there was also small gap at the joints of North-Eastern corner of the wall and similarly there was another small gap at the joint of West Southern corner of the shop. The walls were white-washed in yellow colour. The front wall i.e. Northern wall from outside was having two bricks in decaying condition. The walls were white-washed in yellow colour. The front wall i.e. Northern wall from outside was having two bricks in decaying condition. There was a small crack in Eastern wall just below the wooden beam between first and second portion of the ceiling. The rest of the report is regarding the floor of the shop and the parapets having already fallen. 10. The appellant authority has observed in its judgment that no objection has been raised by any of the parties to the report of Local Commissioner, nor was request made to call him in the witness box and therefore, the factual observations made by the Local Commissioner were not questioned by any of the parties and therefore, there was no reason for not relying on the report. So far these observations are concerned, it is not shown as to how it cannot be said to be correct. Learned counsel for the petitioner argued that the shop has a common wall with two other neighbours shops and therefore, it cannot be said that this particular shop is likely to be unsafe and unfit for human habitation. However, this argument cannot be accepted. Some walls may be common but that does not mean that because the other adjoining shops are standing, this particular shop cannot be said to be unfit and unsafe for human habitation. 11. Both the parties have examined their own witnesses as experts. The Court has to consider the evidence coupled with the Local Commissioners report. Learned counsel for the petitioner argued that the Local Commissioners report that two bricks on the front side and two bricks on the back side were in decaying condition and this does not mean that the premises is unfit and unsafe. He has also stated that the termite action has been seen by the Local Commissioner in one of the karries and this itself cannot make the building unsafe and unfit. He has also argued that the Commissioner has stated that there see-through hole, whereas AW-3 stated that there were seven holes. However, this cannot be said to be a discrepancy. The shop is in the possession of the petitioner and possibility of other holes being closed cannot be ruled out. The petitioner has stated in his cross-examination that he has got the walls brushed in yellow colour four months prior to his deposition. 12. However, this cannot be said to be a discrepancy. The shop is in the possession of the petitioner and possibility of other holes being closed cannot be ruled out. The petitioner has stated in his cross-examination that he has got the walls brushed in yellow colour four months prior to his deposition. 12. Counsel for the petitioner argued that the roof is in three parts and all the three parts cannot be said to be dangerous. It has been argued by the learned counsel for the respondents that the part of the roof had sagged and regarding the bricks support, he argued that it has to be added to prevent the roof from falling, however, it cannot be said to be a permanent arrangement. He has also relied on the photograph, which is in records of the Rent Controller. It is Mark A. The said photograph shows the condition of the shop from front side. It has been argued by the counsel for the petitioner that this photograph is not exhibited and therefore, it cannot be looked into. Learned counsel for the respondent has argued that this photograph was shown to the witness of the respondent. He has read the cross-examination of RW-2 Shri H. C. Goel and he had stated that he had gone to visit the shop in photograph Mark-A. As per his deposition he had gone to see the shop in question. From this admission, learned counsel requested that the photograph may be read into evidence. From the admission in the cross-examination, it is certain that the shop, which is shown in the photo, was seen by the witness and when this is the position, the fact that the photograph was of the shop, can be said to have been proved. 13. The photograph shows that the wall in between this shop and the neighbours shop is having a vertical crack which is quite a big one and is clearly visible. The state of parapet can also be seen. The same being in a bad condition will not by itself make shop unfit and unsafe for human habitation but it goes to show the process of "aging" of the shop. It can be seen that the upper surface of the parapet is un-even showing that some bricks on the upper surface are missing. 14. The same being in a bad condition will not by itself make shop unfit and unsafe for human habitation but it goes to show the process of "aging" of the shop. It can be seen that the upper surface of the parapet is un-even showing that some bricks on the upper surface are missing. 14. AW-2 has stated that there were wooden planks on the wood beams fitted on the roof which is covered with polythene sheet ans mud is placed on the same. He has also stated that the condition of wooden beams is very much dilapidated. The roof of the shop is slanted. This shows that there is slant in the roof which is corroborated by sagging mentioned by the Local Commissioner. In the report of the Commissioner, the ceiling is said to be having three parts. Counsel for the petitioner has argued that if one of the parts is bad, the other portion cannot be said to be unsafe. However, there is no evidence to show that the condition of the ceiling can be separately considered. There may be three spans in the ceiling but there is no evidence to show that if one span or part crumbles, the others will not. 15. Learned counsel for the petitionrer has cited the case of Daulat Ram V/s. Sadhu Ram, reported as 1990 HRR 173. It has been held therein that when the khan of the building was in a damaged condition and alleged to have developed cracks and had been given support of a beam, the roof was made of wooden beams, batons and sikri on which earth was put, the building was said to be not unsafe and unfit for human habitation particularly when with a small cost of Rs. 50/- or Rs. 100/- its roof could be repaired. He has also relied on the case of Piara Lal V/s. Kewal Krishan Chopra, reported as 1988 HRR 502 : (AIR 1988 SC 1432). In that case, the Supreme Court had held that when one room in the rear side of the leased premises had fallen down and there was no evidence on record to prove whether the entire building or a substantial portion of it was in a damaged condition, mere falling down of roof in one room is not sufficient to warrant a finding that the entire building had become unfit and unsafe for human habitation. There is no dispute regarding this principle laid down by the Supreme Court and this Court in the above mentioned cases. However, in the present case, it is not shown that the parts of the roof can be considered separately and that the sagging of roof in one part will not mean that the roof on the other parts of the shop had not become dilapidated. The reason being that in the case of Piara Lal (supra), each room was having its separate walls to support it. This is not shown to be the case here. 16. Learned counsel for the petitioner has further relied on the case of Harnek Singh of Patiala V/s. Bir Singh by LRs, reported as 1989 HRR 574. It has been held therein that where the part of roof of the back room had fallen and the remaining part of the building was supported by wooden ballas and where there was hole filled with bricks, mere falling of part of the roof of one room does not make the whole building unsafe. In view of the reasons given above, this case will not help the petitioners. 17. Learned counsel for the petitioner has argued that a lintel on the same wall has been laid and when AWs were examined the lintel was not there. He has referred to the deposition of RW-3. The said witness has stated that about 5-7 days earlier, the lintel has been put on wall which is towards the right side. If the lintel has been laid in the adjoining shop, it cannot ipso facto mean that the roof of the present shop cannot be said to be not in dangerous position. Moreover, it is stated by RW-3 in cross-examination (as translated) that landlord had put lintelled roof after dismantling the same. This is in reference to a shop vacated by Baldev Raj. 18. Counsel for the petitioner argued that when the repairs are made, the roof cannot now be unsafe. He has relied on the judgment of Supreme Court in the case of Shadi Singh V/s. Rakha, reported as (1992) 2 Pun LR 163 : (AIR 1994 SC 800) (also reported as 1992 HRR 347). Here in this case, it is not shown by the petitioner that the roof is repaired and hence it is not likely to fall down. The petitioner has examined himself as RW-3. Here in this case, it is not shown by the petitioner that the roof is repaired and hence it is not likely to fall down. The petitioner has examined himself as RW-3. He does not say that the repairs have been carried out to make the roof safe. It has been argued that falling of roof will not make the building unsafe. If a roof has already fallen, the rest of the building may not become unsafe. However, if the roof is still there, likelihood of falling of roof itself will make the building unsafe and unfit for the human habitation. 19. Counsel for the respondent has relied on the case of Raghunath (died through his L.Rs. V/s. Shri Raghubir Dass Bawa, reported as 1999 HRR 181. It has been held therein that when the portion of building had already fallen and there were holes in roof and walls were bulging out and the impugned order was passed on cogent evidence, the interference in Revision was unwarranted. He has also cited the case of Chhabil Dass V/s. Smt. Saroj Garg, reported as 1997 HRR 212. It has been held therein that when the walls had gone out of plumb and roof karries bent down with the load of the roof which vibrated with the movement of human being on the roof, was hazardous not only for the occupants but also for general public, the tenant was liable to be evicted because the building had become unfit and unsafe for human habitation. 20. On consideration of the position, as mentioned above, the question is whether the Courts below have erred in coming to the finding that the building has become unsafe and unfit for human habitation. This is a Revision Petition. It cannot be said in view of the above position that the Courts below have come to the finding, which is not based on evidence or that the findings are perverse. The report of the Local Commissioner is to be read as a whole. It is, by itself, sufficient to show that there was sagging and there were supports given to the roof. Giving of temporary supports does not mean repairing. It is no where the case of the petitioner that the building was repaired to make it safe. The report of the Local Commissioner is to be read as a whole. It is, by itself, sufficient to show that there was sagging and there were supports given to the roof. Giving of temporary supports does not mean repairing. It is no where the case of the petitioner that the building was repaired to make it safe. In addition to the evidence of the Court Commissioner, there is also evidence of the witnesses of respondent though the petitioner has also examined his own witnesses. Counsel for the petitioner has argued that there is evidence of Expert from both the sides. However, when the evidence of Expert of respondent finds support from the Court Commissioners report, I do not find any reason to interfere with the findings arrived at by the Courts below. 21. This Revision-petition, therefore, deserves dismissal and is hereby dismissed.Revision dismissed.