Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 62 (PNJ)

Durga Devi v. Chander Sain

2003-01-15

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Durga Devi-landlady has filed the present revision petition against the order passed by the learned Additional District Judge, Ferozepur, while exercising the powers of the Appellate Authority under the provisions of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), vide which the order ejectment passed by the learned Rent Controller against the respondents-tenants as well as sub-tenants, was set aside. 2. The brief facts of this case are that the petitioner filed a petition under Section 13 of the Act for ejectment of the respondents from the shop in question which is part of property No. 1443 situated in Baha Bazar Jalalabad on the grounds of non-payment of rent, subletting and that the premises having become unfit and unsafe for human habitation. The arrears of rent was interests and costs were tendered on the first date of hearing, therefore, the petitioner-landlady contested the case only on the grounds that respondent No. 1 has subletted the portion of the demised premises to respondent No. 2 and that the demised premises have become unfit and unsafe for human habitation, 3. The learned Rent Controller vide its order dated 1.12.1984 passed the order of ejectment against both the respondents while allowing their ejectment on both the grounds. Regarding subletting, it was held that respondent No. 1 has subletted part of the demised premises to respondent No. 2. As regards the demised premises having become unfit and unsafe for human habitation, it was held that building in question is 40-50 years old and is consisting four khans. Its 3rd and 4th khan are in dilapidated condition. The whole roof of the portion of all the four khans is on the same level. The 3rd and 4th khans of the shop, though which are not in possession of the tenant, are in dilapidated condition and the entire roof of the shop cannot be repaired. 4. Aggrieved against the said order of ejectment, the respondent-tenant Chander Sain filed an appeal before the Appellate Authority. The 3rd and 4th khans of the shop, though which are not in possession of the tenant, are in dilapidated condition and the entire roof of the shop cannot be repaired. 4. Aggrieved against the said order of ejectment, the respondent-tenant Chander Sain filed an appeal before the Appellate Authority. Vide order dated 5.2.1986, the learned Additional District Judge, Ferozepur, while exercising the power of the Appellate Authority, allowed the appeal filed by the tenant and set aside the order of the learned Rent Controller on both the issues and it was held that neither the premises in question was subletted by the tenant nor the same has become unfit and unsafe for human habitation. 5. I have heard the learned counsel for the parties and perused the record. 6. The learned counsel for the petitioner submitted that the Appellate Authority has reversed the finding of the learned Rent Controller on the issues of subletting and that the demised premises have become unfit and unsafe for human habitation, in a most illegal and arbitrary manner without meeting the reasons recorded by the learned Rent Controller. He submitted that petitioner-landlady has proved on record that building in question has become unfit and unsafe for human habitating by leading the evidence, including the expert witness. In this regard, he referred to the statement of Pritam Singh-AW3, retired Assistant Executive Engineer in the Central Public Works Department, who was the expert in the Central Public Works Department, who was the expert and who in his report Ex.AW3/A has clearly established that the whole building has become unfit and unsafe for human habitation. Since the roofs of all the four khans are of the same level, same cannot be repaired without touching the front two khans. The learned counsel for the petitioner has further stated that the building in question is 60 years old, as has been established on the record. In rebuttal to these evidence, the respondent-tenant did not examine any expert witness to prove that the shop in question is in good condition. He submitted that the expert witness has clearly stated in his statement that the building in question is 60 years old and the walls of the premises are of mud mortar and the building has got a kacha floor. The 3rd and 4th khans of the shop in question is in dilapidated condition. He submitted that the expert witness has clearly stated in his statement that the building in question is 60 years old and the walls of the premises are of mud mortar and the building has got a kacha floor. The 3rd and 4th khans of the shop in question is in dilapidated condition. The wooden beams and batons have been eaten by white ants. The roof is of sirke as having holes, as shown in the plan. The whole portion consists of four khans is of the same level and cannot be repaired without demolishing the whole roof. The learned counsel for the petitioner submitted that the Appellate Authority has reversed the said findings only on the ground that the front two khans of the demised premises, which are under possession of the tenant, are in good condition and the rear two khans, which are not in possession of the tenant, may be in a dilapidated condition and unfit and unsafe for human habitation. The learned counsel further submitted that the Appellate Authority has illegally reversed the order of the learned Rent Controller on this aspect of the matter by wholly ignoring that all the four khans of the demised premises are at the same level and are inter-connected. The demised premises is a four khans shop having only one door, though the front two khans are now the part of the tenancy in possession of the tenant but the entire shop is one and if the rear portion of the same is in dilapidated condition, then it cannot be said that the front portion is not unfit and unsafe for human habitation. In support of his contention, the learned counsel for the petitioner relied upon a decision of this Court in Sh. Sham Dass v. Sh. Sunder Singh and Anr., 1978(1) Rent Law Reporter 596; Bhagwan Dass v. Mohan Lal and Ors., (1987-2)92 P.L.R. 618; Sardarni Sampuran Kaur and Anr. v. Sant Singh and Anr., (1983)85 P.L.R. 449 and Hakim Sunder Lal v. Ram Swarup, 1983(1) Rent Law Reporter 371, and contended that even if a part of the building is unfit and unsafe for human habitation, the order of ejectment can be passed regarding the other portion(s) in occupation of the tenant if the building is integrated one and the substantial portion of the same has become unfit and unsafe for human habitation. 7. 7. On the other hand, learned counsel for the respondent-tenant submitted that merely because the fact that the roof of the rear portion which is independent portion, is in dilapidated condition, the front portion of the shop in possession of the respondent cannot be seemed to have become unfit and unsafe for human habitation and he cannot be ejected from that portion. If the rear khans of the demised premises have become unfit and unsafe for human habitation, then the front two khans cannot be held to be declared as unfit and unsafe for human habitation. He submitted that there is no infirmity and illegality in the order passed by the Appellate Authority and the front two khans in possession of the petitioner in no circumstances can be held to have become unfit and unsafe for human habitation and he cannot be evicted from the same. In support of his contention, learned counsel for the respondents relied upon the decision of the Supreme Court in Piara Lal v. Kewal Krishan Chopra, A.I.R. 1988 Supreme Court 1432. 8. I have heard the learned counsel for the parties and have perused the record. 9. The demised premises under the occupation of the respondent-tenant is the front two khans of the shop which is part of property No. 1443. As per site plan Ex.A2 on the record, the shop in question consists of four khans. Admittedly, first two khans are in possession of the respondent-tenant and the remaining two khans are in possession of the petitioner-landlady. From this site plan, it is clear that this entire property is in the shape of one shop and the first portion and the back portion thereof are in its integral part. It is also clear from this site plan that this shop is having one gate and there is no other gate for the two khans of the back portion except the main gate of the shop. After looking this site plan, no different conclusion can be drawn that the back portion of the shop is not an integral part of the first portion. The entire shop is one. It is admitted position that the last two khans of the shop are in dilapidated condition and are unfit and unsafe for human habitation. After looking this site plan, no different conclusion can be drawn that the back portion of the shop is not an integral part of the first portion. The entire shop is one. It is admitted position that the last two khans of the shop are in dilapidated condition and are unfit and unsafe for human habitation. It has also come in the report of the Expert Ex.RW3/A that the shop in question is an old property which was constructed in mud morter and is having a kacha floor. The last two khans of the shop a reported to be in dilapidated condition. It has also been mentioned in this report that the front portion of the shop, which is in occupation of the respondent-tenant carries a wooden roof, which has also developed cracks. In his report, the expect has further pointed out that the whole roof of all the four khans is in the same level and the same cannot be repaired without demolition of the whole roof. This expert report has further been corroborated by the statement of PW.1 Murari Lal. 10. On the other, respondent-tenant did not examine any expert and has only examined four witnesses, who stated that the building is unfit and unsafe for human habitation. The learned Appellate Authority has set aside the ejectment order passed by the learned Rent Controller only on the ground that only the back two khans, which are in possession of the petitioner-landlady, were in dilapidated condition and the same can be repaired without touching the two khans, which are in possession of the respondent-tenant. In my opinion, the learned Appellate Authority has wrongly set aside the findings recorded by the learned trial Court on this issue and the view taken by him is not sustainable as I have already observed that the shop in question is one property bearing four khans and one door. The back two khans and the front two khans are not separate having different entry. Both the parts of the shop are integral parts of one building. The front portion, of which the respondent-tenant is in possession, cannot be held to be not an integral part of the back portion, consisting of two khans, which is in possession of the petitioner-landlady. Admittedly, the back two khans are in dilapidated condition and are unfit and unsafe for human habitation. The front portion, of which the respondent-tenant is in possession, cannot be held to be not an integral part of the back portion, consisting of two khans, which is in possession of the petitioner-landlady. Admittedly, the back two khans are in dilapidated condition and are unfit and unsafe for human habitation. In addition, it has also come in the report of the expert that the roof of the front portion has also developed cracks and the roof of all the four khans is at the same level and the same cannot be repaired without demolition of the whole roof. If that is so, the learned Rent Controller has rightly passed the order of ejectment by holding that since the shop in possession of the respondent-tenant forms integral part of the same building, therefore, the petitioner-landlady is entitled to seek ejectment of the respondent-tenant from the undilapidated portion, so as to re-construct the whole of the building. In this regard, the law is well settled. There appears to be a catena of unbroken precedent which is a pointer to the fact that where a larger building has become substantially unsafe or unfit for human habitation then the landlord has the right to get the whole of the building vacated for purposes of reconstruction and renewal. A question of law to the effect as to whether a tenant of the demised premises which are an integral part of a larger building, can be ejected under the provisions of Section 13(3)(a)(iii) of the Act on the ground of the building having become unsafe and unfit for human habitation despite the fact that the particular portion in the occupation of the tenant may not be so, was referred to a Division Bench of this Court in Sardarni Sampuran Kaurs case (supra) While replying to the said question of law, the Division Bench of this court, after taking into consideration the various judicial pronouncements of this Court, the definition of the expression building and other provisions of the Act, has held that if substantial part of the integrated larger building has become unsafe and unfit for human habitation, the tenant can be ejected from the demised premises forming part thereof under Section 13(3)(1)(iii) of the Act despite the fact that the particular portion in his occupation may not be unfit and unsafe. 11. 11. Keeping in view the aforesaid law, in the present case also the respondent-tenant may be ordered to be ejected from the front two khans of the shop in question as the back portion of the shop consisting of two khans has become unsafe and unfit for human habitation which is the integral part of one building. 12. Learned counsel for the respondents, while referring to the decision of the Honble Supreme Court in Piara Lal v. Kewal Krishan Chopra (supra) submitted that this decision of the Honble Supreme Court has upset the long standing view of this Court to the effect that with damage to even a part of the building, the entire building would be rendered as unfit and unsafe. I have considered this submission of learned counsel for the respondents and have perused the aforementioned judgment of the Honble Supreme Court in Piara Lals case (supra). In that case, roof of one of the rooms constituted the building had fallen down. The remaining three rooms were intact and there was no evidence whatsoever that there was any crack or any damage to the remaining three rooms. In that situation, the Honble Supreme Court has held that if a roof of one of the rooms on the rear side falls down and requires replacement and when there is no evidence whatsoever that the entire building or a substantial portion of it is in a damaged condition and consequently the building as a whole has become unsafe and unfit for human habitation, then the tenant, who is in possession of the building which is safe, cannot be ejected on the ground of demised premises being unsafe and unfit for human habitation. The facts and circumstances of that case were totally different from those of the present. In the present case, the back portion of the shop, consisting of two khans, is integral part of the front portion, which is in possession of the respondent-tenant. There is also evidence that the portion, in possession of the respondent-tenant, has also developed some cracks in the roof. Therefore, the said decision cited by learned counsel for the respondents is not applicable to the facts and circumstances of the present case and the same is distinguishable. 13. Learned counsel for the respondents, while justifying the order passed by the learned Appellate Authority, raised three submissions. Therefore, the said decision cited by learned counsel for the respondents is not applicable to the facts and circumstances of the present case and the same is distinguishable. 13. Learned counsel for the respondents, while justifying the order passed by the learned Appellate Authority, raised three submissions. Firstly, he contended that the back portion of the shop consisting two khans is distinct and independent portion. As discussion earlier, I am no agreeing with the contention of learned counsel for the respondents that the back portion of the shop, which is admittedly unsafe and unfit for human habitation, is independent and distinct portion. Secondly, learned counsel submitted that the roof of the back portion of the shop can be replaced independently. In this regard, he referred to one line from the statement of AW3, Pritam Singh, where he replied to a suggestion that the back portion can also be replaced independently. I am not inclined to accept this submission of learned counsel for the respondents, when it has come in evidence that the entire shop is one and its back portion is integral part of the shop. It has also come in evidence that level of roof of all the four khans is the same and the expert has clearly stated in his report that roof of the back portion cannot be replaced without demolishing the whole roof of the shop. It has also come in evidence that roof of the front portion of the shop, which is in possession of the respondent-tenant, has also developed some cracks. Learned counsel for the respondents, he argued that the ejectment petition in question was filed in the year 1982 on the ground of it being unfit and unsafe for human habitation and till today, the building is intact and has not fallen down. According to him, the fact alone negatives the submission made by the petitioner-landlady. I am again not inclined to agree with this submission. It is not the intention of the law that the tenant cannot be evicted from the unfit and unsafe building till it falls down. The intention of the legislature as enshrined in Section 13(3)(a)(i) of the Act is to give a right to the landlord to reconstruct the building when it has become unsafe and unfit for human habitation. 14. It is not the intention of the law that the tenant cannot be evicted from the unfit and unsafe building till it falls down. The intention of the legislature as enshrined in Section 13(3)(a)(i) of the Act is to give a right to the landlord to reconstruct the building when it has become unsafe and unfit for human habitation. 14. In view of the aforesaid discussion, I am of the opinion that the Appellate Authority has wrongly reversed the finding of the Rent Controller on the issue of the demised premises being unfit and unsafe for human habitation. Therefore, I set aside the findings of the Appellate Authority and restore those recorded by the Rent Controller on this issue and hold that the demised premises in possession of the respondent-tenant has become unfit and unsafe for human habitation and the respondent-tenant is liable to be ejected from the same. 15. Regarding the findings recorded by the learned Appellate Authority on the issue of sub-letting, learned counsel for the petitioner-landlady, though vehemently argued but could not convince me. On the basis of photograph mark A produced by the petitioner-landlady, it cannot be held that the respondent-tenant has delivered the possession of part of the shop to respondent No. 2 Danna Singh. Therefore, I affirm the findings recorded by learned Appellate Authority on this issue. 16. In view of the aforesaid discussion and in view of my finding that the demised premises in possession of the respondent-tenant has become unsafe and unfit for human habitation, this revision petition is allowed and the respondent-tenant is ordered to be ejected from the demised premises and is directed to hand over the vacant possession of the demised premises to the petitioner-landlady within a period of three months from to day.