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2003 DIGILAW 68 (PNJ)

Shambu Nath v. Deep Chand

2003-01-15

N.K.SUD

body2003
Judgment N.K.Sud, J. 1. This Civil Revision is directed against the order of the Appellate Authority, Ludhiana dated 3.10.1986 dismissing the appeal of the petitioner-tenant against the order of his eviction passed by the Rent Controller, Ludhiana, dated 13.3.1985. 2. The petitioner is a tenant in property No.B-II/412, Bazar Ludhiana owned by the respondent-landlord at an annual rent of Rs. 500/- since 4.2.1947. The landlord sought the eviction of the tenant on the ground that the demised premises had become unfit and unsafe for human habitation. In support of his claim, the landlord examined an expert Mr. Satya Dev Gupta, a retired Executive Engineer, who gave his detailed report, Exh.A1 and also filed site plan, Exh.A2. The tenant also furnished reports of experts; namely, Mr. B.C. Katyal and Mr. Both Raj Dhall, both retired S.D.Os. Statements of Mr. Satya Dev Gupta and Mr. B.C. Katyal were also recorded and they were also made available for cross-examination. However, Mr. Bodh Raj Dhall was not produced by the tenant for cross-examination. On a consideration of the evidence led by both the parties, the Rent Controller accepted the report of the expert of the landlord Mr. Satya Dev Gupta and upheld the claim that the premises in question has become unfit and unsafe for human habitation. Consequently, he allowed the application and directed the petitioner-tenant to put the landlord into possession within two months from the date of his order. 3. Aggrieved by the order of the Rent Controller, the tenant filed an appeal before the Appellate Authority, Ludhiana. During the pendency of the appeal, the landlord filed an application before the Appellate Authority complaining that the tenant was making additions and alterations and was carrying out repairs in the property to defeat his claim. It was specifically pointed out that the tenant was in the process of cement plastering the walls from inside. It was also alleged that the tenant was fixing false wooden ceiling below the ceiling of the shop to conceal its condition and to prevent the mud falling down from the roof on account of leakage during the rainy season. The tenant filed reply to this application and stated that during the pendency of the appeal, a neighbour while repairing the intervening wall, had damaged the same. The same was, therefore, repaired and brought to its original state. He denied having brought about any change. The tenant filed reply to this application and stated that during the pendency of the appeal, a neighbour while repairing the intervening wall, had damaged the same. The same was, therefore, repaired and brought to its original state. He denied having brought about any change. The Appellate Authority passed an order on the application of the landlord on 25.10.1985 and directed the Rent Controller to visit the spot and submit his report after inspection. The Rent Controller submitted his report on 28.1.1986 observing as under;- "3. After having a personal look on the intervening wall (as reported in the reference order dated 25.10.1985), there were 3 very small patches in which some cement was filled. The said patches, were not of the nature, depicting that the wall in question was damaged one. No other defect or repair in the wall in question was found, which could be considered of to conclude that the wall in question was in a damaged condition. Any addition or alteration was also not visible. However, the over all position of the wall in question was quite well and safe." On this report, objections were filed by the landlord in which it was stated that the report of the Rent Controller was not complete. It was claimed that he had been shown various cracks in the other walls which had not even been mentioned in the report. It was, therefore, prayed that the report be either excluded from consideration or a fresh report be sought from him. The petitioner-tenant filed a reply dated 6.3.1986 to the aforesaid objections resisting the prayer of the landlord. 4 The Appellate Authority observed that the report of the Rent Controller was not complete and, therefore, could not be treated to be a report in respect of the condition of the entire shop. He however, observed that it stood proved that the southern wall had patches filled with cement and that the tenant himself had admitted that the wall on southern side had been repaired by him to put it in its original condition. The Appellate Authority appraised the evidence on record and upheld the claim of the landlord that the building in question had become unfit and unsafe for human habitation. For this purpose, the Appellate Authority placed reliance on the report of the landlords expert Mr. Satya Dev Gupta in preference to the report of the tenants expert Mr. The Appellate Authority appraised the evidence on record and upheld the claim of the landlord that the building in question had become unfit and unsafe for human habitation. For this purpose, the Appellate Authority placed reliance on the report of the landlords expert Mr. Satya Dev Gupta in preference to the report of the tenants expert Mr. B. Katyal. He observed that from the aforesaid report of Mr. Satya Dev Gupta, it was apparent that the building was about 100 years old and its walls had developed huge cracks which were 7 to 11 high and 3" to 4" wide. It was also observed that a part of the portion of the wall had been covered by the tenant with a curtain and the expert was not allowed to remove the curtain to examine the condition of the wall. It has also been observed that in the cross-examination only general suggestions were put to the expert and none of his findings were specifically questioned. On the other hand, the tenant had not made Mr. Both Raj Dhall available for cross-examination because in his examination-in-chief, he had supported the allegation of the landlord about the depression of the roof. The other expert of the tenant Mr. B. Katyal was duly made available for cross-examination and the Appellate Authority found various discrepancies and contradictions in his statement and the statement of the tenant. For example, the expert in his statement claimed that he had used one wooden stair to inspect the roof whereas the tenant stated that he had used the regular staircase. Again, the expert claimed to have inspected the wall which had been concealed by putting a curtain by the tenant while the tenant maintained that it was not so done as the expert had not asked him to remove the curtain. In view of the contradictions in the testimonies of the tenant and his expert, the Appellate Authority concluded that no reliance could be placed on the report of the tenants expert Mr. B.C. Katyal. Accordingly, the finding of the Rent Controller that the shop in question had become unfit and unsafe for human habitation was upheld. 5. Mr. H.L. Sibal, appearing on behalf of the petitioner, contested the findings of the authorities below. He contended that the authorities below have wrongly preferred to rely on the report of the landlords Expert Mr. B.C. Katyal. Accordingly, the finding of the Rent Controller that the shop in question had become unfit and unsafe for human habitation was upheld. 5. Mr. H.L. Sibal, appearing on behalf of the petitioner, contested the findings of the authorities below. He contended that the authorities below have wrongly preferred to rely on the report of the landlords Expert Mr. Satya Dev Gupta who had clearly admitted that he had not inspected the walls in the adjoining properties. According to him, since three walls of the shop were common with the adjoining properties, the expert could not have expressed any opinion without inspecting the walls from the other side. He further contended that even the Rent Controller in his report dated 28.1.1986 has supported his case that the building was quite well and safe. He further contended that once the Appellate Authority has chosen to direct the Rent Controller to inspect the property and to submit his report on its condition, the report of the Rent Controller ought to have been accepted and in case the Appellate Authority was of the view that the report was not complete, it would not leave the matter at that and ought to have insisted on a complete report from the Rent Controller for adjudicating the dispute. Mr. Sibal also contended that the very fact that the building is subsisting for the last 18 years and is being used by the tenant for his business itself belies the claim of the landlord that it is unfit and unsafe for human habitation. 6. Mr. M.L. Sarin, appearing on behalf of the respondent-landlord supported the orders of the authorities below. At the very outset, he took a preliminary objection that on the basis of appraisal of the entire material on record, a concurrent finding of fact has been recorded by both the authorities below that the shop in question was unfit and unsafe for human habitation. Accordingly, he contended that the said finding could not be interfered with in the revisional jurisdiction of this Court. For this purpose, he placed reliance on the judgments of this Court in Sunder Dass and Anr. v. Avinash Chander Sood,1 1992(1) Rent Control Reporter 18 and Brij Lal v. Shiv Mohan and Anr.? 1996(2) Rent Law Reporter 450. Mr. Accordingly, he contended that the said finding could not be interfered with in the revisional jurisdiction of this Court. For this purpose, he placed reliance on the judgments of this Court in Sunder Dass and Anr. v. Avinash Chander Sood,1 1992(1) Rent Control Reporter 18 and Brij Lal v. Shiv Mohan and Anr.? 1996(2) Rent Law Reporter 450. Mr. Sarin also pointed out that the report of the Rent Controller dated 28.1.1986 submitted before the Appellate Authority does not advance the case of the tenant. According to him, this report had been sought on the complaint of the landlord that the tenant was making additions and alterations and carrying out repairs in the property during the pendency of the appeal inasmuch as the intervening wall with the adjoining shop was being plastered with cement. Seen in this context, Mr. Sarin pleaded that the report supported his case inasmuch as it was found that there were three patches in which cement had been filled. The report only referred to the condition of the intervening wall and not of the entire shop. The learned counsel further pointed out that in the objections against the report, the landlord himself had prayed that in case the condition of the entire shop was required to be considered, the Rent Controller be called upon to submit a fresh report. This prayer had been resisted by the tenant in his reply to the objections. Thus, it was claimed that no fault could be found with the approach of the Appellate Authority to base his conclusions on the evidence on record in the from of the reports of the two experts. 7. I have heard the counsel for the parties and gone through the records. Both the authorities below have appraised the evidence produced by the parties and have recorded a concurrent finding of fact that the building had become unfit and unsafe for human habitation. The reports of the experts of the landlord as well as of the tenant have been discussed in detail and valid reasons have been given for placing reliance on the report of the expert of the landlord and for rejecting the report of the tenants expert. The reports of the experts of the landlord as well as of the tenant have been discussed in detail and valid reasons have been given for placing reliance on the report of the expert of the landlord and for rejecting the report of the tenants expert. It has also come on record that the tenant had covered a substantial part of one wall with a curtain and the experts were not allowed to remove the curtain to assess the condition of the said wall. It has also been correctly pointed out that the report submitted by the Rent Controller during the appellate proceedings had to be read in the light of the complaint of the landlord that the tenant was carrying out certain repairs in the intervening wall of the shop. Read in that context, it is clear that Rent Controller has stated that certain patches has been filled with cement. His report does not anywhere refer to the general condition of the shop. Since reports of the experts about the general condition of the shop were available on record, it was not necessary for the Appellate Authority to seek the report from the Rent Controller, who was even otherwise not a technical expert. The objection of the learned counsel for the petitioner that the report of Mr. Satya Dev Gupta cold not be relied upon as he had recorded a finding that the three walls of the shop in dispute were not common with the adjoining shops without inspecting the walls from the other side is without any merit. In the cross-examination he has duly supported his finding by stating that "Because there were not all as and pitches in the wall in side the shop, on that account I say that the walls are not common". Thus, when it is proved that the walls were not common, it was not necessary for him to inspect the same from the other side. Thus, I am of the view that both the courts below have recorded a concurrent finding that the shop in question is unfit and unsafe for human habitation after appreciation of evidence. Such a finding cannot be interfered with in the revisional jurisdiction of this Court as held in the cases of Sunder Dctss and Brij Lal (supra). Thus, I am of the view that both the courts below have recorded a concurrent finding that the shop in question is unfit and unsafe for human habitation after appreciation of evidence. Such a finding cannot be interfered with in the revisional jurisdiction of this Court as held in the cases of Sunder Dctss and Brij Lal (supra). No material has been brought to my notice to show that the finding is vitiated or is contrary to the evidence of law. It is trite law that under these circumstances this Court cannot reappraise the evidence to reverse the finding of fact concurrently arrived at by the trial court and the first appellate court. In Shiv Lal v. Sat Parkash and Anr. 1993 Supp(2) Supreme Court Cases 345, it has been held by the Apex Court that while exercising jurisdiction under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, the High Court does not act as a regular third appellate court and an interfere only within the scope of the Sub-section. The High Court cannot re-examine the evidence on record to reverse the concurrent finding of fact recorded by the courts below. Similarly, in Praveen Kumar and Ors. v. Suresh Chand and Ors. A.I.R. 2001 S.C. 4779(2), the Supreme Court has observed that in the exercise of its revisional jurisdiction the High Court can interfere only if the trial Court is shown to have committed any jurisdictional error or it is shown that its decision would have resulted into any manifest injustice. No such case has been made out before me. Merely because the tenant has continued to occupy the tenanted shop for the last 18 years cannot be a ground to interfere in the concurrent finding of fact recorded by the two courts below that the building had become unfit and unsafe for human habitation. The continuation of the tenant was merely because of a stay order by this Court. Further, even a dilapidated building can be sustained for some years with some repairs and maintenance. In Madan Gopal v. Sheela Devi 1999(2) R.L.R. 707 this Court has held that if the ground of eviction on account of building having becoming unfit and unsafe becomes available to the landlord then it cannot be effected or defeated by any further act of the tenant. 8. Accordingly I find no merit in this revision petition which is dismissed. In Madan Gopal v. Sheela Devi 1999(2) R.L.R. 707 this Court has held that if the ground of eviction on account of building having becoming unfit and unsafe becomes available to the landlord then it cannot be effected or defeated by any further act of the tenant. 8. Accordingly I find no merit in this revision petition which is dismissed. However, in the circumstances of the case, there shall be no order as to costs.