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2003 DIGILAW 328 (PNJ)

Jagdish v. Sanjay Kumar

2003-02-21

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is tenants petition filed under subsection (6) of Section 15 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for brevity the Act) challenging concurrent findings of facts recorded by both the Courts below that the demised premises had become unfit and unsafe for human habitation. These findings have been recorded on issue No. 3 which is the sole issue that survives for consideration before this Court. The findings on Issue No. 3 is based on the report Ex.P-2/A submitted by one Shri Om Parkash, SDO, who made the spot inspection as a Local Commissioner and the statements made by PW-2 Shri Sanjay Kumar, the landlord respondent himself. The analysis of the evidence produced by both the parties has been made by the Appellate Authority, which reads as under:- "To prove this issue, PW.1 Rajender Singh, Draftsman has proved the site planEx.Pl prepared by him according to the spot on 4.9.1995. 12. PW2 Sanjay Kumar son of Puran has categorically stated that this building was constructed about 70/80 years back and it has outlived its life. He has categorically stated that this building is not fit for human habitation and the stair-case have fallen and there are cracks in the walls and roof. He has stated that there is while ants in the roof. He has stated that the roof is made of Kacha mud and there is no plaster on the walls. He stated that the building is not fit for repairs. He has stated that if the girder is removed then the roof will collapse. 13. On the other hand, R.W.1 Jagdish son of Sundar has stated that he is running the shop of fruits and vegetable etc. He has stated that his shop has not been visited by the Local Commissioner. He has stated that he has (not?) the shop in question. He has categorically stated that the shop in question is in fit condition. 14. P.W-2 Anil son of Sunder has also stated about the same condition of the shop in question. He has further stated that the Local Commissioner has visited the spot (shop?) in his presence. 15. RW-3, Amarjit Singh son of Amrik Singh has also stated that the walls and roof of the shop in dispute are in good condition and they are not going to collapse. He has further stated that the Local Commissioner has visited the spot (shop?) in his presence. 15. RW-3, Amarjit Singh son of Amrik Singh has also stated that the walls and roof of the shop in dispute are in good condition and they are not going to collapse. So far as the period of the construction of the building in question is concerned, it was claimed that the shop in question is 70/80 years old and the site plan Ex.P-1 clearly shows that the stair case of the building has already collapsed and the other shop adjacent to the shop in question was also in a dilapidated condition. He has also stated that the ejectment order has already been passed by the Ld. Rent Controller, vide order Ex.P-3 regarding adjacent shop. It is also clear that the landlords of the said shop are the landlords of the present shop. Ex.P2/A is the report of the Local Commissioner, which shows the condition of the building is unfit and unsafe for human habitation. He has also mentioned in his report that this shop in question was constructed about 70/75 years back and it has outlived its life. He has also shown in his report Ex.P2/A that the sub portion of the wall has already been slided. He has also stated that the shop of Sanjay Kumar has also collapsed and Malba is lying on the spot. It is also clear that this shop was constructed with small size bricks and with mud mortars and is not safe now. It is also clear that the wall has been eaten by while ants. The respondent has no doubt, claimed that the Local Commissioner has never visited at the spot, but PW2 Anil Kumar has admitted that the Local Commissioner has visited the spot: It is also admitted fact that the Local Commissioner is a building expert and has been appointed by the Court. Moreover, this report of the Local . Commissioner has not been challenged nor any report of any other building expert has been produced by the tenant to prove that the condition of the building is fit. Thus, it is held that the building is not fit for human habitation." 2. I have heard Sh. Jagdev Sharma, learned counsel for the tenant-petitioners, who has argued that the Local Commissioner appointed by the Court namely Sh. Thus, it is held that the building is not fit for human habitation." 2. I have heard Sh. Jagdev Sharma, learned counsel for the tenant-petitioners, who has argued that the Local Commissioner appointed by the Court namely Sh. Om Parkash Sharma, SDO who has presented his report Ex.P2/A and site plan Ex.P2/C has not ap peared before the Court in order to prove those documents nor he has faced the cross- examination of the tenant-petitioner. The learned counsel has further argued that the building has not become unfit and unsafe as has been held by both the Courts below. According to him, if the adjoining shop has fallen, it would not ipso-facto lead to the conclusion that the demised premises must also be held to be dilapidated. 3. After hearing the learned counsel and perusing the order of the Rent Controller as well as Appellate Authority, I find that there is ample evidence on record to conclude that the demised premises have become unfit and unsafe for human habitation. Apart from the report Exs.P2/A and site plan Ex.P2/C, Rajinder Singh, Draftsman appeared before the Rent Controller and he presented site plan Ex.Pl showing the factual position on the spot. The landlord-respondent Sanjay Kumar PW2 had stated that the construction was about 70/80 years old, .which has out-lived its life. He has also stated that some of the steps of the stair-case have fallen and there are cracks in the walls and the roof. He went on to state that there are cracks in the walls. The roof has been made of kacha mud and there was no plaster on the walls. The building was unfit for repair. PW2, Anil Kumar, who is tenant petitioner No. 2 in the instant petition has acknowledged in his statements that the Local Commissioner visited the spot in his presence and has de scribed the condition of the shop as has been described by P.W.2 Shri Sanjay Kumar. It has further been admitted case of the parties that the adjoining shop of Sanjay Kumar has already collapsed and its debris are lying on the spot. The demised shop was also more or less in similar condition, therefore, the findings of facts recorded by both the Courts below that the demised shop has become unfit and unsafe for human habitation cannot be interfered with. The demised shop was also more or less in similar condition, therefore, the findings of facts recorded by both the Courts below that the demised shop has become unfit and unsafe for human habitation cannot be interfered with. The finding concerning a building having been rendered unfit and unsafe for human habitation is a finding of fact and would not call for interference in the revisional jurisdiction under sub-section (6) of Section 15 of the Act. 4. The power of revision to interfere under Section 15(6) of the Act is limited to a case when the findings recorded by the Rent Controller or Appellate Authority are with out any evidence, it has been repeatedly held that the revisional powers of the High Court under Section 15(6) of the Act would not include the power to reverse the concur rent findings of the Courts below without showing that those findings were erroneous or without evidence. The main object of the revisional power vested in the High Court is that it should satisfy itself as to the legality and propriety of the order under revision. Sub-section (6) of Section 15 of the Act is reproduced below for facility of reference. "15. Appellate and revisional authorities:- (1) to (5) xxxxxx (6) The (High Court ) as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record 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 or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded." 5 A perusal of sub-section (6) of Section 15 of the Act makes it evident that this Court is clothed with the power to call for record of any case and to examine it for the purpose of satisfying itself as to whether the orders passed or proceedings taken under the Act are in accordance with its provision, lawful and proper. This provision as well as the identical provision of sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) made under the Act have repeatedly came up for consideration before the Supreme Court in the case of Vaneet Jain v. Jagjit Singh, (2000-3)126 P.L.R. 263 (S.C.). Dealing with sub-section (6) of Section 15 of the Act, their Lordships observed as under:- "Sub-section (6) of section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding that what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999)6 S.C.C. 222:A.I.R. 1990 S.C. 2507, held that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. Sarla Ahuja v. United Limited Insurance Co. Ltd., (1998)8 S.C.C. 119:A.I.R. 1999 S.C. 100) it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact finding Court is wholly unreasonable. A perusal of sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 15 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below." 6. Similar view has been taken in the case of Shiv Lal v. Sat Parkash,2 1993 (suppl)2 S.C.C. 345 and Bhoop Chand v. Kay Pee Cee Investments,3 (1991)1 S.C.C. 343. Reference may also be made to Pooran Chand v. Moti Lal,4 A.I.R. 1964 S.C. 461, Helper Girdhar Bhai v. Saiyed Mohamad Mirasaheb Kadri,5 A.I.R. 1987 S.C. 1782, Ram Dass v. Ishwar Chander,6 A.I.R. 1988 S.C. 1422 and Rajbir Kaur v. M/s Chokosiri and Co.7 A.I.R. 1988 S.C. 1845. Sub-section (6) of the Section 15 of the Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh,8 (1995)4 S.C.C. 201 : (1995 A.I.R. S.C.W. 2766). Placing reliance Hari Shankar v. Rao Girdhari Lal Chowhury,9 A.I.R. 1963 S.C. 698; State of Kerala v. K.M. Charia Abdullah and Co.,10 A.l.R. 1965 S.C. 1585 and Neta Ram v. Jiwan Lal,11 A.I.R. 1963 S.C.N. 499 their Lordships pointed out the distinction between the revisional power under the Rent Act and the appellate power which reads as under. "From the use of expression Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than he power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent Findings recorded by the two Courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interferece. 7. Similar view has been taken by the Supreme Court in the case of Kanchana v. P. ManianP- 2002(1) J.T. (Supp) (S.C.) 36. Dealing with the question of willful default in payment of rent by a tenant, their Lordships held that it is a question of fact, which should not ordinarily be disturbed while exercising powers of revision. The views of their Lordships read as under:- "We must observe that where (whether ?) there has been a willful default in payment of the rent by the respondent, is primarily a question of fact which should not ordinarily be disturbed by a revisional Court unless the order suffers from non-consideration of important evidence, or misreading of the evidence or recording a conclusion which no reasonable man in the given facts could have arrived at.... order of the High Court, under challenge, does not show that the order was interfered with on any of the aforementioned grounds." 8. If the principles enunciated by their Lordships of the Supreme Court in the aforementioned judgments are applied to the facts of the instant case, if is evident that the building has been rendered unfit and unsafe for human habitation and it cannot be concluded that the findings are peversed or without evidence or the finding is based on per functory and superficial approach adopted by the Courts below. It can also not be said that the findings are not reasonable or that no reasonable man would reach the conclusion recorded by both the Courts below on the basis of the aforementioned evidence. Therefore, I have no hesitation in affirming the findings of facts that the demised shop has become unfit and unsafe for human habitation. 9. The arguments of Mr. Therefore, I have no hesitation in affirming the findings of facts that the demised shop has become unfit and unsafe for human habitation. 9. The arguments of Mr. Jagdev Sharma that the Local Commissioner Shri O.P. Sharma, S.D.O., who has presented the inspection report Ex.P2/A was not produced before the Courts as a witness would not require any serious consideration for the reason that the tenant-petitioner never filed any objection against that report nor disputed its authenticity by producing his own expert. A perusal of the judgments rendered by both the Courts below show that even no such argument was raised showing that the report of the Local Commissioner Shri O.P.Sharma,SDO was not acceptable to the tenant-petitioners. It is no doubt true that by applying the principles of Rule 10 of Order 26, the court is competent to order presence of the Local Commissioner in person in case the Court is not satisfied with the proceedings undertaken by the Commissioner. In the case of Lekh Raj v. Muni Lal13 A,I.R. 2001 S.C. 996, this Court had permitted the appointment of Local Commissioner to find out the condition of the rented premises. The tenant had objected to the report and had even sought appointment of another Local Commissioner. The eviction of the tenant was rejected and the report was relied upon by this Court holding that the tenant was liable to be evicted on the ground that the rented premises had become unfit and unsafe for human habitation. On appeal to the Supreme Court, it was held that the revisional jurisdiction were not exceeded and die report of the Local Commissioner could have been looked into, despite objection. The observation of their Lordships read as under:- "17. In view of the legal principle we have stated hereinabove, a Court could take into consideration subsequent facts, event or happening which are relevant, and in the present case after expiry of about two decades if fresh Local Commissioner was appointed to find out the condition of shops, and it found two big cracks on two walls of the disputed shop, it cannot be said that consideration of such evidence would be illegal. On the merit it is submitted, one of the cracks is on the "dehori" side which is in possession of the landlord. On the merit it is submitted, one of the cracks is on the "dehori" side which is in possession of the landlord. Even if this is to be, this would make no difference for drawing any inference about the condition of the wall. There are always two sides of any wall, cracks on any side of the wall, if they weaken the wall, may not be on the side of such an occupant.it would make no difference. Even if the cracks on the wall are on the other side which is a passage, still as it constitutes the same wall as that of the shop it would have the same result. If the cracks have weakened the wall, it would crumble, notwithstanding it is not on the side of the shop. This coupled with the condition of the roof which deteriorated as found by the Local Commissioner would be a valid consideration to find whether the shop is unfit for human habitation. So far as for causing damage to the roof, we have perused the FIR. Though FIR records allegation directly against the landlord but records no allegation of the landlord damaging the roof." 10. Holding that the Local Commissioner could only report the fact of existing condition of the building and not now it was caused, their Lordships further observed as under: - "The question whether the roof was damaged by the landlord or was damaged because of the building being old and dilapidated is a question of fact, proof of it could only be, if at all, through leading evidence and not through a Local Commissioner. A Local Commissioner could only report the fact of existing condition of the building and not who did it. It was open for him, if the appellant so desired for praying to the court to grant time to lead evidence in this regard. Since, the Court permitted a Local Commissioner to report, so it would have granted the prayers for leading evidence. Hence, we do not find any of the objections raised by the appellant having any merit. The High Court considered the said report, and there exists a hole on the roof, which is not disputed. Since, the Court permitted a Local Commissioner to report, so it would have granted the prayers for leading evidence. Hence, we do not find any of the objections raised by the appellant having any merit. The High Court considered the said report, and there exists a hole on the roof, which is not disputed. It further records even if the same is ignored, there are big cracks found by the Commissioner at the beginning of the wall extending from top to more than middle, and another big crack on another wall. The report records the depth of the crack, not merely the length of the crack showing the bad condition of the two wails of the disputed shop. Mere length of crack by it self may not have foundation to hold the condition of structure of the shops to be bad but it would be, where the crack measures 2" x 7.5" depth in one wall on the upper side and 1.5" (illegible) on the lower side and another crack measuring 2" x 8" from the upper side and 2" x 7" from the lower side. This along with the condition of roof, it was considered by the High Court to draw the inference of the condition of the shop, it cannot be said that such finding is perverse or illegal which calls for interference by this court. Once the said Local Commissioners report was brought on the record, as part of evidence to show the subsequent event or condition of building, it was incumbent on the High Court to have considered it, which it rightly did and if in doing so an inference is drawn that the disputed accommodation is not fit for human habitation it is not such which calls for interference. Normally, as the revisional Court, it could not have embarked upon recording finding of facts but where any subsequent fact was legally brought on record, it could enter into and decide the question, which could inevitably include recording find of fact." 11. In view of the above, it is clear that the report of the Local Commissioner despite objections raised by the one party could always be read in evidence. But in a case like the one in hand where no objection has been raised in both the Courts below the report of the Local Commissioner could certainly be read in evidence. In view of the above, it is clear that the report of the Local Commissioner despite objections raised by the one party could always be read in evidence. But in a case like the one in hand where no objection has been raised in both the Courts below the report of the Local Commissioner could certainly be read in evidence. In the facts and circumstances, it was not necessary to seek the presence of the Local Commissioner before the Court as no objection was raised by the tenant-petitioner nor any request was made asking for the appointment of another Local Commissioner. This appears to be well settled from the judgment of the Supreme Court in the case of Lekh Raj v. Muni Lal,13 A.I.R. 2001 S.C. 996 (supra) and also from another judgment of the Supreme Court in the case of Saraswathi v. S. Ganapathy,14 2001(4) S.C.C. 694 : A.I.R. 2001 S.C. 1844. Therefore, I do not find any substance in the agruments raised by Shri Sharma. The Local Commissioner cannot be subjected to cross-examination in every case especially when such an argument is raised for the first time before this Court. The revision petition is without merit and is thus liable to be dismissed. 12. For the reasons fecorded above, this revision petition fails and the same is dismissed.