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2003 DIGILAW 76 (PNJ)

Darshan Kumar v. Mahesh Kumar

2003-01-16

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is a tenant petition filed under sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (in brevity the Act), challenging concurrent findings of facts recorded by both the Courts below holding that the demised premises have become unfit and unsafe for human habitation and therefore, the tenant/petitioner is liable to be evicted. Accepting the report of Sh. G.S. Consel, opining that the building has been rendered unfit and unsafe on account of various reasons, the learned Appellate Court affirmed the findings recorded by the Rent Controller vide his order dated 3.3.1998. Sh. G.S. Consel had appeared as AW1 who proved his detailed report Ex. A-1 and site plan Ex. A-2. The views of the Appellate Authority in this regard read as under :- "When Sh. G.S. Consel Expert PW-1 visited the house on 4.10.94 with the permission of the Court, he examined the whole building including the room in possession of the appellant and gave detailed description of the walls, electric fitting, floor, doors, windows, terrace, foundations, smoke chimney, and stair-case in his detailed report the copy Ex. A-1 and the site plan Ex. A-2 produced in the file. It has been categorically found by the expert that the walls from outside are neither cement plastered nor cement pointed. However, the part of the western wall marked as X X-1 and Y and Y-1 in the map No. 4 has been subsequently repaired with the modern standard size bricks laid in mud mortar. The eastern and southern walls of the disputed premises are made of standard size bricks laid in mud mortar and wooden battons have become old and their ends are deteriorated and rotten and showing sags downwards. The wooden beam of the roof of verandah has deteriorated and damaged and thus has been supported by an additional support of iron girder. As regards floors cement pointed of the floor is uprooted and the brick-paving is existing in uneven surface and has thus become unserviceable, the electric wiring is in a deteriorated condition and the almirahs are broken and are missing from their original place of the almirahs. All window panes are broken and the doors are totally damaged. All the ventilators are in broken condition." 2. The Appellate Authority has come to the conclusion that Sh. All window panes are broken and the doors are totally damaged. All the ventilators are in broken condition." 2. The Appellate Authority has come to the conclusion that Sh. Bakshish Singh, Local Commissioner, who visited the spot at the instance of the respondent submitted his report Ex. R-1 but he failed to rebut the report submitted by Sh. G.S. Consel, because Sh. Bakshish Singh RW1 did not mention the condition of each and every door, windows, ventilator, almirah, floor, roof, walls, electric fitting etc. It has further been concluded that when Sh. G.S. Consel appeared as a witness and he with-stood the searching cross examination conducted on him. Sh. Bakshish Singh RW-1, however, admitted as a witness that the building in question is built of `B class construction and that Nanak Shahi bricks used in raising construction were in vogue about 70 years ago. Sh. Bakshish Singh also admitted that the building is around 60 years old and it has out-lived its age. He also admitted that there were some holes of one inch by one inch on the western wall. On the basis of various other admissions made by Sh. Bakshish Singh-RW1, the appellate Court accepted the report submitted by AW1 Sh. G.S. Consel. The report of Sh. G.S. Consel reads as under :- "In view of my visual inspection and observations made with regard to the facts and the existing condition of the house building in dispute and of the remaining building on the ground floor as fully detailed above and description in the detailed plan of the house building under report, floor wise, I have come to the conclusion positively and definitely that the premises in dispute including the remaining building of the house building No. B.6/572 MCH is highly dilapidated and has outlived its lives and has passed all the stages of its repairs, the cracks have devolved in the walls and the walls have gone out of plumb. The dilapidated and deteriorated and some parts of it have collapsed. The bricks have Kallar effected. This wall can fall down at any moment causing danger to the life of the occupier. The joinery work of the premises in dispute has totally damaged and become unserviceable. Roofs leak in the rainy season. The dilapidated and deteriorated and some parts of it have collapsed. The bricks have Kallar effected. This wall can fall down at any moment causing danger to the life of the occupier. The joinery work of the premises in dispute has totally damaged and become unserviceable. Roofs leak in the rainy season. The premises in dispute as well as the remaining building has become unfit and unsafe for human habitation and the entire house building from bottom to top requires its reconstruction." 3. Mr. K.S. Dadwal, learned counsel for the tenant/petitioner has argued that his application for appointment of Local Commissioner has not been decided and therefore, this Court must remand the case to the appellate authority. He has further pointed out that in such a situation even this Court in the exercise of jurisdiction can appoint a Local Commissioner. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Baldev Singh v. Malkit Singh, 2002(1) PLR 519 and Lekh Raj v. Muni Lal, 2001(1) RCR 168. He has further submitted that the finding recorded on the issue of unfit and unsafe are contrary to record. Referring to the cross-examination of Sh. G.S. Consel, AW1 and the statement of RW1 Sh. Bakshish Singh, the learned counsel has submitted that the findings are unsustainable. The learned counsel has urged that once repairs have been effected then the building cannot be considered unfit and unsafe and ejectment orders could not have been passed. In support of his submissions, the learned counsel has placed reliance on Shadi Singh v. Rakha, 1992(2) RCR 7 and Baldev Singh v. Malkit Singh, 2002(1) PLR 519. The learned counsel then argued that neither the owner nor the landlord has stepped into the witness box. The witness who has entered the witness box is a mere stranger and his testimony cannot be relied upon to return the findings that the building has become unfit and unsafe. In support of his submissions, the learned counsel has placed reliance on a judgment of Rajasthan High Court in the case of Ram Parshad v. Hari Narain, 1998(3) SCC 539, and two judgments of the Supreme Court in the case of Ishwar Bhai v. Hari Har Bahera, 1999(2) CCC 1 and Pandu Ram v. Ram Chander, AIR 1981 SC 2235. 4. Mr. 4. Mr. K.S. Cheema, learned counsel for the landlord/respondent has pointed out that the findings of facts recorded by both the Courts below show that the entire building is constructed by the use of Nanak Shahi bricks and it is a B Class construction. The life of B Class construction is 50-60 years and Nanak Shahi bricks were in use about 70 years back. For want of maintenance the entire building has outlived its life and it is admitted by RW-1 Sh. Bakshish Singh that there are holes to the extent of one inch by one inch in one of the walls. The learned counsel has further argued that the findings of facts recorded by the Courts below are unlikely to be interfered by this Court in its revisional jurisdiction under sub-Section (5) of Section 15 of the Act because there is no documentary evidence left out of consideration or any other irrelevant evidence taken into consideration. 5. I have thoughtfully considered the rival contentions raised by the learned counsel for the parties and am of the view that this petition is devoid of merits and is thus liable to be dismissed. The revisional jurisdiction of this Court are limited as is laid down in numerous of the Supreme Court. It is only in cases where findings are perverse in the sense that no reasonable person on the basis of available evidence would come to the conclusion recorded by the Courts below which would result in exercise of revisional jurisdiction under sub-Section (5) of Section 15 of the Act. If the findings are without any evidence, perfunctory and wholly unreasonable then also this Court enjoys jurisdiction to interfere in such type of findings. However, this Court cannot, on re-appreciation of evidence, record a conclusion different than the one recorded by the courts below merely because it has felt that way. The aforementioned view is fully supported by the judgments of the Supreme Court in the case of Vaneet Jain v. Jagjit Singh, 2000(3) PLR 263, Sarla Ahuja v. United Indian Assurance Company Ltd., 1998(8) SCC 119, Shiv Lal v. Sat Parkash, 1994(1) RCR(Rent) 495 (SC) : 1993 (Suppl.) 2 SCC 345, Bhool Chand v. Kay Pee Cee Investments, 1990(2) RCR(Rent) 694 (SC) : 1991(1) SCC 343 and Atma S. Berar v. Mukhtiar Singh, 2003(1) RCR(Rent) 42 (SC) : 2003(2) SCC 3. When the facts of the present case are examined in the light of the principle extracted above from various judgments of the Supreme Court, it becomes evident that the findings recorded by the Courts below are based on evidence. It cannot be concluded that the findings are perfunctory in nature. Merely because a different view is possible would not constitute a valid ground to set aside the findings of facts recorded by the Court below as has been pointed out by the Supreme Court in Atma S. Berars case (supra). The finding that the demised premises had become unfit and unsafe is based on the statements made by Sh. G.S. Consel-AW1, as well as the statement made by Sh. Bakhshish Singh-RW1. The statement of AW2 Bhushan Kumari and AW3 Mahesh Kumar has also been relied upon to support the findings. The Local Commissioner has duly proved his report Ex. A-1 and copy of the site plan Ex. A-2. Therefore, the findings are well founded. 6. The argument of the learned counsel for the tenant/petitioner that the learned Appellate Authority has not considered his application for appointment of a Local Commissioner does not require any serious consideration because already two reports, one by the landlord/respondent and the other by the tenant/petitioner of their respective Local Commissioner are on the record. The appointment of another Local Commissioner at the stage of appeal would be absolutely unnecessary because for adjudication of the claim made in the appeal such a course was not required to be followed. Similar arguments raised before me requesting for appointment of Local Commissioner can also not be accepted. The judgment of this Court in the case of Baldev Singh (supra) relied upon by the counsel for the tenant/petitioner does not advance his case because in Baldev Singhs case the application filed under Order 41 Rule 27 had remained undecided and the judgment has got no bearing on the facts of the present case. Therefore, I have no hesitation in rejecting the afore- mentioned arguments of the learned counsel. The other argument that the findings are contrary to record cannot be accepted for the simple reason that nothing has been pointed out to substantiate that submission. In fact RW1 has himself stated the fact that there are holes of one inch by one inch in the western wall of the premises and the construction is B Class. The other argument that the findings are contrary to record cannot be accepted for the simple reason that nothing has been pointed out to substantiate that submission. In fact RW1 has himself stated the fact that there are holes of one inch by one inch in the western wall of the premises and the construction is B Class. He has also stated that B Class construction could survive upto 50-60 years, therefore, it cannot be concluded that the findings are contrary to the record. 7. The other argument that once the repairs have been effected then the ground that the building has become unsafe and unfit for human habitation is also liable to be rejected because after the building has become unsafe and unfit, a tenant cannot be permitted to defeat that right of the landlord by effecting the repairs of the dilapidated portion. The Appellate Authority has expressed full agreement with the Rent Controller on Issue No. 2 with regard to the building having become unfit and unsafe for human habitation. Moreover, the demised premises is only one room which is a part of the whole building and it is the whole building which has become unfit and unsafe. It is in these circumstances that the Courts below have found that when a building is to be reconstructed then a part of it cannot be left out unless it is shown that the part is entirely separate than the main building. Therefore, the argument is without any substance and is thus liable to be rejected. 8. The last argument of the learned counsel that neither the owner nor the landlord has appeared to support his case is also devoid of any merit because the relationship of landlord-tenant exist between the parties. The dispute between the landlord/respondent and his father has got nothing to do with the tenant/petitioner. In this regard the views of the Appellate Authority read as under :- "I have very carefully perused the notice copy Ex. R-1 in which the father of the respondent was annoyed with the respondent because the respondent has let out room in question to Mahesh Kumar. The respondent is son of his father and it was the respondent, who let out the premises to the appellant and, therefore, relationship of the landlord and tenant existed between the parties. R-1 in which the father of the respondent was annoyed with the respondent because the respondent has let out room in question to Mahesh Kumar. The respondent is son of his father and it was the respondent, who let out the premises to the appellant and, therefore, relationship of the landlord and tenant existed between the parties. If there was some dispute between the respondent with his father, the appellant had nothing to do with it nor the appellant can now take a plea that the respondent is not landlord." 9. The above narration of strained relationship between his father and the landlord/respondent would not constitute a basis for a tenant/petitioner to argue that neither the landlord has appeared in the witness box nor the owner of the demised premises has appeared. Under Section 116 of the Indian Evidence Act, 1872 , a tenant is estopped from denying that the landlord did not have valid title to the property rented out to him. Therefore, there is no substance in this argument and the judgments on these issues relied upon by the learned counsel have no bearing. For the reason stated above, this petition fails and the same is dismissed. Petition dismissed.