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2003 DIGILAW 67 (PNJ)

Bharat Singh v. Ashok Kumar

2003-01-15

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This order shall dispose of Civil Revision Nos.1392 and 1393 of 1987 as common question of law and fact are involved in both these revision petitions. 2. For the purpose of convenience, facts of the case Civil Revision No. 1392 of 1987, may be noticed :- 3. Ashok Kumar, landlord filed an ejectment petition, seeking ejectment of the tenant from the shop in question on the ground that the tenant had damaged the floors and walls of the shop in dispute, thereby impairing materially the value and utility of the said shop and thereby rendering the shop in dispute unsafe and unfit for human habitation. 4. The said petition was contested by the tenant by filling the written statement, denying that the shop in question was unsafe and unfit for human habitation or that he had caused any damage to it. 5. After hearing both the sides the learned Rent Controller found that the landlord had failed to prove that the tenant had damaged the floors and walls of the shop in dispute or had materially impaired its value and utility. Resultantly, the ejectment petition was dismissed. 6. The appeal filed by the landlord was accepted by the learned Appellate Authority. The order passed by the learned Rent Controller was set aside and order of ejectment was passed against the tenant, holding that the shop in question had become unsafe and unfit for human habitation. Resultantly, the order of the ejectment was passed against the tenant. 7. Aggrieved against the same, tenant filed the present revision petition in this Court. 8. I have heard the learned counsel for the parties and have gone through the record carefully. 9. A perusal of the lower court record would show that Ashok Kumar landlord had filed the ejectment petition against the tenant, alleging therein that the tenant had damaged the floors and walls of the shop and thus, had impaired materially its value and utility. It was further alleged that on account of the tenants illegal acts described above, the shop had become unfit and unsafe for human habitation and that he wanted to re-erect the same as there was imminent danger of fall of the shop. 10. In the written reply filed by the tenant, it was denied that the tenant had damaged the said shop. 10. In the written reply filed by the tenant, it was denied that the tenant had damaged the said shop. On the other hand, it was alleged that he had made some improvements in the said shop. It was also denied that the shop in dispute had become unfit and unsafe for human habitation. 11. On the pleadings of the parties, the learned Rent Controller framed the following issue:- "Whether the respondent by his act and conduct materially impaired tenancy premises rendering the same unfit and unsafe for human habitation? OPA" 12. A perusal of the above issue, would clearly show that it was a composite issue framed by the learned Rent Controller based on the allegations made by the landlord that the tenant had materially impaired the value and utility of the shop in dispute, which had rendered the shop unfit and unsafe or human habitation. It was for this reason that the aforesaid composite issue was framed by the learned Rent Controller. The evidence led by the landlord would be considered in the light of the allegations made by the landlord in the ejectment petition and in the light of the issue framed by the learned Rent Controller on the pleadings of the parties. The evidence led by the landlord beyond pleadings, in my opinion would not be considered, especially when the landlord had made the specific allegations and no amount of evidence beyond pleadings would be considered while deciding the aforesaid issue, 13. As referred to above, in the ejectment petition, the landlord had specifically alleged that the tenant had damaged the floors and walls of the shop and had, thus, materially impaired its value and utility and that with the illegal act of the tenant described above, the shop had become unfit and unsafe for human habitation and that he wanted to re-erect the same as there was imminent danger of fall of the shop. A perusal of these allegations made by the landlord would clearly show that the landlord had specifically taken the plea that the tenant had damaged the floors and walls of the shop, which had not only impaired materially its value and utility, but on that account, the shop had become unfit and unsafe for human habitation and thereby causing imminent danger of its fall. It is in the light of these allegations made by the landlord in the ejectment petition that the evidence led by the landlord had to be considered to see as to whether any case had been made out for ordering ejectment of the tenant from the shop in question by virtue of the ground that he had impaired materially value and utility of the shop or on the ground that on that account, the shop in question has become unfit and unsafe for human habitation. 14. In the present case, admittedly, only oral evidence was led by the parties to prove and disprove the above said allegations. No building expert was examined by either side. However, a Local Commissioner was appointed by the Court whose report is available on the record of the trial Court: Besides this, the learned Rent Controller had inspected the spot and his report is also available on record. Similarly, the learned Appellate Authority had also inspected the shop and his report is also available on record. The evidence led by the parties above and the above said reports are required to be considered to see as to whether any case has been made out for ordering ejectment of the tenant from the shop in dispute on the above said grounds. 15. As referred to above, the learned Rent Controller had decided the aforesaid issue against the landlord holding that the landlord had failed to prove the allegations made by him in the ejectment petition. While doing so, the learned Rent Controller referred to the report of the Local Commissioner and to the inspection Note recorded by him, on the basis of the spot inspection besides considering the evidence led by the parties. However, in appeal the findings of the learned Rent Controller on the above issue were reversed and the learned Appellate Authority had ordered ejectment of the tenant from the shop in dispute, primarily basing the finding on its report based on the inspection Note (the Appellate Authority, who had inspected the spot and had given report was different from the Appellate Authority, who had decided the appeal). The report of the Appellate Authority, based on the spot inspection, is available on the file of the Appellate Authority and the same is dated April 5, 1986. The report of the Appellate Authority, based on the spot inspection, is available on the file of the Appellate Authority and the same is dated April 5, 1986. As per the said report, the Appellate Authority had inspected the spot on the same date in the presence of the parties and their counsel. The Appellate Authority found that shop in dispute consists of one room in front, another room to the back side and one court yard in between these two rooms. It was found that roofs of both the rooms were made of wooden beams, wooden planks and mud plaster. These roofs were in partly bad condition and required to be replaced immediately. It was found that if allowed to remain in their present condition they cannot last for more than couple of years. It was also found that walls of the entire building were made of bricks and mud and that many bricks had outlived their life. It was also found that they were in yellowish colour and had been worn out because of their old-age. It was further found that these walls were made of partly big and partly small bricks with mud plaster. 16. Besides the aforesaid report of the Appellate Authority based on the spot inspection, we have the Inspection Note dated September 28, 1985 recorded by the learned Rent Controller based on the spot inspection. As per the said Inspection Note, the Rent Controller had visited the shop in dispute in the presence of the parties and their counsel on September 28, 985. He found that the shop was three khani. In the first front khan, he found two supports in the extreme corners towards sehan (second khan) and on support in the middle. The second khan was open sehan. It was further found that in the last khan (third khan), anterior portion of the shop, one kari near the wall towards southern side was found a little bent. It was further found that the shop was constructed with yellow bricks and mud but overall condition of the walls was not bad and the floors of the walls were kacha but were not found damaged. It was further found by the learned Rent Controller that overall condition of the shop was fit for running business and was not unfit and unsafe for human habitation. 17. It was further found by the learned Rent Controller that overall condition of the shop was fit for running business and was not unfit and unsafe for human habitation. 17. Besides the aforesaid report based on Inspection Note, there is also report of the Local Commissioner available on the trial court record. The same is dated October 10, 1983 and the same is Ex.A1 submitted by Sh. Azad Singh, Advocate (Local Commissioner). As per the said report of the Local Commissioner, he had inspected the spot on October 7, 1983 in the presence of the landlord and his counsel and the tenant had also met him at the spot at the time of spot inspection. He found that the shop had three portions. He found that in the anterior room, wooden fattas were stagged. It was found that the walls were weak and the karis of the roofs were about to break. It was also found that middle portion was the sehan and was filled with karis and fattas. It was further found that half of the portion of the sehan was covered with wooden fattas. It was also found that the walls were weak and broken with regard to anterior room. It was found that the room contained building material and chaukhat etc. It was also found that the roof towards north were broken and to keep them intact towards west alongwith wall a big kari and two other big karis had been affixed to give support. It was found that if these three supports had not been given, the roof would have fallen. It was reported that the condition of the shop was such that the roof could fall at any time. 18. As referred to above, the landlord had sought the ejectment of the tenant from the shop in dispute on the ground that the tenant had damaged the floors and walls of the shop, which had materially impaired its value and utility and on account of that illegal act, the shop had become unfit and unsafe for human habitation and the landlord wanted to re-erect the same as there was imminent danger to the fall of the shop. If the allegations of the landlord in the ejectment petition are considered, in my opinion, it would be clear that there is absolutely nothing on the record to show that the tenant had damaged the floors and walls of the shop in dispute, which had either .materially impaired its value and utility or had made it unfit and unsafe for human habitation. Merely because the Appellate Authority, at the time of the spot inspection, was of the view that roofs of both the rooms were in pretty bad condition, required to be replaced immediately and if allowed to remain in their present condition, would not last for more than couple of years, in my opinion, would not be enough to hold that the shop in dispute had become unfil and unsafe for human habitation. In the absence of any material on record to show as to on what basis, the learned Appellate Authority had come to the conclusion that the roof were in pretty bad condition and was liable to be replaced. Similarly, the learned Appellate Authority in his report had nowhere mentioned as to how the bricks of the shop had outlived their life and how the same were worn out because of their old age as reported by the learned Appellate Authority in his report. Similarly, in the report submitted by the Local Commissioner it was mentioned that the roof was likely to fall in case support is removed. In my opinion, on the basis of these reports, it could not be said that the building in question had become unfit and unsafe for human habitation or that the tenant had impaired materially the value and utility of the shop in dispute. There is nothing on record to show that the supports referred to by the Local Commissioner in his report were provided by the tenant to save the roof of the shop. If these supports are in existence since inception of the tenancy, that by itself would be no ground to order ejectment of the tenant on the ground that if the supports are removed, roofs are likely to fall. If the roofs were in existence since long with the aid and support referred to in the report of the Local Commissioner, there would be no occasion to hold that the building in dispute had become unfit and unsafe for human habitation as the roof required support. If the roofs were in existence since long with the aid and support referred to in the report of the Local Commissioner, there would be no occasion to hold that the building in dispute had become unfit and unsafe for human habitation as the roof required support. If for a long time the support was given and may be by the landlord himself, it could not be said that the building was unfit and unsafe for human habitation, merely because the Local Commissioner had stated that if the support was removed, the roof was likely to fall. 19. Further more, as referred to above, the learned Rent Controller at the time of spot inspection had found that the shop was fit for running business and was not unfit and unsafe for human habitation. 20. From the perusal of the above, in my opinion, it would be clear that the learned Appellate Authority has failed to take realistic view while holding that the shop in dispute had become unfit and unsafe for human habitation. I am further of the view that the learned Appellate Authority had failed to consider the pleadings of the parties and had ordered the ejectment of the tenant from the shop in dispute based on the evidence, which was beyond pleadings of the landlord. Further more because the building in question was old, would not be a ground to hold that the building had become unfit and unsafe for human habitation. Reliance in this regard may be placed on the law laid down by this Court in the case of Mohinder Pal v. Hari Dass, (2000-3)126 P.L.R. 563. 21. It is no doubt true that the Courts are competent to take subsequent events in view under such circumstances. However, in the present case, there is nothing on record to show that there was any subsequent event which was required to be taken into account. The report of the Local Commissioner had come into existence on October 10, 1983 i.e. just after a month of the filing of the ejectment petition. Whatever was found by the Local Commissioner in his report was based on the spot inspection. Thus, it could not be said that there was any subsequent event which required to be considered. The report of the Local Commissioner had come into existence on October 10, 1983 i.e. just after a month of the filing of the ejectment petition. Whatever was found by the Local Commissioner in his report was based on the spot inspection. Thus, it could not be said that there was any subsequent event which required to be considered. If the landlord had failed to plead the condition of the building referred to above in the ejectment petition and had simply alleged that the tenant had damaged the floors and walls of the shop in dispute and impaired materially its value and utility and this had also made the shop to become unfit and unsafe for human habitation, in my opinion, the landlord cannot be allowed to produce any other evidence beyond pleadings in support of his case. 22. In view of my detailed discussion above, it could not be said that the building in dispute has become unfit and unsafe for human habitation nor could it be said that the tenant had materially impaired the value and utility of the shop in dispute. According to findings of the learned Appellate Authority on Issue No. 1 are liable to be seaside. 23. In view of my above discussion, both the revision petitions are allowed, the orders of ejectment passed by the learned Appellate Authority are set aside and the ejectment petition filed by the landlord are dismissed. No order as to costs.