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2004 DIGILAW 690 (PNJ)

Dev Raj v. Rattan Lal

2004-07-13

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The petitioners are aggrieved against the order of ejectment passed by the courts below on the ground that the tenanted premises are unfit and unsafe for human habitation. 2. The petitioner is a tenant over a room (Chaubara) on the first floor for the last many years. The ground floor of the premises in dispute is in possession of the landlord. The landlord sought ejectment of the petitioner from the first floor tenanted premises on the ground that the entire building is unfit and unsafe for human habitation and until and unless the tenant vacates the first floor of the tenanted premises, the property in question cannot be reconstructed. 3. In support of the plea that the building has become unfit and unsafe for human habitation the landlord has examined his attorney Deepak Singal as PW1, Prem Sagar Photographer, as PW2, Sohan Lal Sharma, Sub Divisional Officer, B&R as PW3 who has proved his report Exhibit P-21 and Map Exhibit P-22 as well as Sh. Subhash Chand, a neighbour shopkeeper, as PW4. The landlord has also examined Sh. Shiv Ram, Clerk Nagar Palika as PW5 who has produced the original notice of the municipal committee. On the other hand, to controvert such allegations of the landlord, the tenant has examined RW1 Vijay Kumar who has proved his report Exhibit R-2, and Dev Raj son of the tenant, who appeared as RW2. 4. After considering the evidence on the record learned Rent Controller returned a finding after relying upon the report of the expert produced by the landlord and taking into consideration the photographs produced by the photographer and the notice of the Municipal Committee that the property in question has become unfit and unsafe for human habitation. In appeal the learned appellate authority reappreciated the entire evidence. It noticed that Dev Raj RW2, son of the tenant, admitted in cross-examination that the tenanted premises is 100 years old and made up of small bricks. The roof of the building was repaired about 15 years ago and the walls of the Chaubara are not plastered. There are holes in the wall and bricks are taken out of the wall. The roof of the shop of Rattan Lal is made of Karis. The roof of the building was repaired about 15 years ago and the walls of the Chaubara are not plastered. There are holes in the wall and bricks are taken out of the wall. The roof of the shop of Rattan Lal is made of Karis. The learned Appellate Authority also examined the evidence of the expert Sohal Lal Sharma (PW3) produced by the landlord as well as the statement of the expert Vijay Kumar (RW1) produced by the tenant and concluded that the condition of the walls and roof of the demised premises clearly show that the building is beyond repairs and unfit and unsafe for human habitation. It found that the expert produced by the tenant has not taken the photographs of the premises but when he was confronted with the photographs taken by the landlord, he admitted that the bricks shown fallen out from the walls in the photographs are correctly shown. The expert also admitted that he guessed the condition of the walls of the shop from the gap left between the racks placed in the shop and the wall. The learned Appellate Authority found that the expert produced by the tenant cannot be believed. It concluded that the condition of the shop on the ground floor is worse and it may not bear the load of the upper room (Chaubara) of the tenanted premises. If the ground floor is unfit and unsafe for human habitation and not the tenanted premises even then the petitioner is liable to be evicted as the condition of the building is to be seen collectively. 5. Before this Court, learned counsel for the petitioners relied upon the judgment of this Court in the case of Jita Ram and Anr. v. Sham Lal and Anr., (1993-1)103 P.L.R. 291 as well as in the case of Bhim Sain Nardosh Kumar and Ors. v. Raj Pal, (1992-2)102 P.L.R. 102, to contend that the ejectment of the petitioner was sought by filing petition more than 10 years ago and since the demised premises are still in existence, the contention of the landlord that the building has become unfit and unsafe for human habitation cannot be said to be proved. v. Raj Pal, (1992-2)102 P.L.R. 102, to contend that the ejectment of the petitioner was sought by filing petition more than 10 years ago and since the demised premises are still in existence, the contention of the landlord that the building has become unfit and unsafe for human habitation cannot be said to be proved. Learned counsel for the petitioners also relied upon the decision of this Court in the case of Labh Chand Om Parkash v. Krishan Lal and Ors., (1990-1)97 P.L.R. 87 to contend that if the fall of a room was not of a sufficient portion the tenant cannot be evicted. Still further, the learned counsel for the petitioners relied upon M.S. Bhatnagar v. O.N. Agarwal, 1983(2) Rent Control Reporter 618 and Dina Nath v. Kesko Ram, 1986 (Sup.) Rent Control Reporter 427, to contend that where the building has become unfit and unsafe for human habitation the testimony of the witnesses produced by the party is not of much assistance. A Local Commissioner should be appointed to find out the condition of the building. Therefore, it is contended that the application filed by the petitioner for the appointment of Local Commissioner before the learned Appellate Authority could not have been dismissed. 6. However, I am unable to accept any of the contentions raised by the learned counsel for the petitioners. The landlord has sought ejectment on the ground that the building has become unfit and unsafe for human habitation by filing ejectment petition on 27.2.1994. The rights of the parties that have to be seen as it exist on the said date. The parties have led exhaustive evidence regarding the condition of the building as on the said date. The expert produced by the petitioner has deposed that the shop portion is in dilapidated condition as there are holes in the wall and bricks have oozed out. It has also found that the expert examined by the tenant has inspected only the first floor and reported that it is in good condition. Though he stated that he has inspected the shop on the ground floor but he stated that he has not seen the shop of Rattan Lal and reported about the condition of the wall after examining the gap between the racks and the wall. Though he stated that he has inspected the shop on the ground floor but he stated that he has not seen the shop of Rattan Lal and reported about the condition of the wall after examining the gap between the racks and the wall. The said stand of the expert produced by the petitioner has not been believed whereas the testimony of the expert produced by the landlord has been found to be trustworthy. It is the concurrent finding of fact recorded by both the authorities below on the basis of evidence on the record including the expert produced by the parties that the entire building is unfit and unsafe for human habitation. 7. In Jita Rams case (supra) and in M/s Bhim Sain Nardosh Kwnarss case (supra), the ejectment petition was dismissed by the Courts below and it was the landlord who was in revision petition before this Court. In the landlords revision petition, it was held that the premises are not proved to be unfit and unsafe for human habitation in view of the fact that in spite of considerable time having been elapsed since the filing of ejectment petition, still the building is in existence. Both these cases relied upon by the learned counsel for the petitioners are clearly distinguishable as in the present case it has been found that the building has become unfit and unsafe for human habitation. The right of the landlord to seek ejectment accrued on the date when approached the learned Rent Controller by filing eviction petition Under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. 8. The learned counsel for the tenant-petitioner has argued that the Chaubara is in a good condition and therefore, the tenant cannot be ordered to be ejected. He relied upon M/s Labh Chand Om Parkashs case (supra). A Division Bench of this Court in the case of" Sardarni Sampuran Kaur etc. v. Sant Singh etc., 1982 Current Law Journal 233 has held that if a major portion of the integrated building has become unfit and unsafe for human habitation, the tenant on a portion which may not be strictly speaking unfit and unsafe for human habitation can be ordered to be ejected as the definition of the building contained in Section 13 of the Act include a large integrated building. In M/s Lal Chand Om Parkashs case (supra), it was found that the portion which has fallen is a small portion whereas the cases referred to in the said case were of the cases where major portion of the building has become unfit and unsafe for human habitation. Therefore, even the said judgment, in fact supports the contention that if major portion of a large integrated building has become unfit and unsafe for human habitation then eviction order shall follow. 9. The argument of learned counsel for the petitioners that the Local Commissioner should have been appointed to inspect the premises in dispute is again devoid of merit. [n the absence of any other evidence, the Court could appoint a Local Commissioner to report regarding the condition of the construction. But once the parties have led their respective evidence in respect of the nature and condition of the building the report of the Local Commissioner would be another piece of evidence. The authorities under the Rant Act are not to provide evidence to the parties in support of their respective pleas. 10. Since both the authorities below have found that the entire integrated premises have become unfit and unsafe for human habitation, I do not find that the order of ejectment passed by the authorities below suffer from any patent illegality or material irregularity warranting interference by this Court in exercise of its revisional jurisdiction. Dismissed in limine.