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2005 DIGILAW 255 (PNJ)

Des Raj v. Rekha Sharma

2005-02-11

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. Tenant Des Raj has filed this revision petition to challenge the judgment and decree dated February 14, 2004 passed by the Appellate Authority, Sangrur, whereby the two ejectment petitions filed by the landlord have been allowed and his ejectment order from the shop in dispute has been ordered, whereas the petition under Section 12 of the East Punjab Urban Rent Restriction Act, 1949 , filed by the tenant for seeking a direction to the landlord to carry out the repairs, has been dismissed. 2. Two ejectment petitions under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short `the Act) were filed by the landlord for ejectment of the tenant-petitioner from the demised shop and the third petition under Section 12 of the Act was filed by the tenant in order to seek direction to the landlord to carry out necessary repairs in the said shop before the Rent Controller, Malerkotla. The Rent Controller dismissed the petitions filed by the landlord on the ground that the demised shop was not unfit and unsafe for human habitation and allowed the petition filed by the tenant under Section 12 of the Act, by passing the judgment and decree dated 22.5.2003. However, the appeals filed by the landlord have been accepted by the Appellate Authority, Sangrur, vide judgment and decree dated 14.2.2004 and the ejectment of the tenant-petitioner has been ordered on the ground that the shop in dispute was unfit and unsafe for human habitation. It is against the judgment and decree passed by the Appellate Authority that the tenant- petitioner has filed the present revision petitions. 3. It has been contended by the learned counsel for the petitioner that the Local Commissioner appointed by the Additional Senior Sub Judge, Malerkotla, had reported on 23.9.1994 that the roof of the shop had been dismantled by human hand, whereas the condition of the remaining portion of the roof of the shop was in good condition. He has also placed reliance on Bharat Singh v. Ashok Kumar, 2003(2) RCR(Rent) 208 (P&H); Daulat Ram and another v. Pt. He has also placed reliance on Bharat Singh v. Ashok Kumar, 2003(2) RCR(Rent) 208 (P&H); Daulat Ram and another v. Pt. Laxmi Narain and others, 2004(1) Civil Court Cases 427 (P&H); Lekh Raj Muni Lal, 2001(1) RCR(Rent) 168 (SC) and Piara Lal v. Kewal Krishan Chopra, 1998 Civil Court Cases 424 (SC), to contend that merely because the roof of the shop was in a damaged condition does not mean that the shop had become unfit and unsafe for human habitation. 4. The contentions raised by the learned counsel for the petitioner have vehemently been controverted by the counsel appearing on behalf of the respondent. 5. The fact goes undisputed that Shri A.S. Sarao, Advocate., was appointed Local Commissioner, with the consent of the counsel appearing before the Appellate Authority, who visited the spot on 6.2.2004 and submitted the report dated 10.2.2002 wherein he stately found as under :- "1. That 25 bags containing some grains were lying in the shop roof of which was in a dilapidated condition. The half portion of the roof of the shop consisting of 11 batons was in existence; whereas the other half of the roof was having only 6 batons. 2. That the back room of the shop was also in a dilapidated condition. Half of the roof of the back room consisting of 18 batons was in existence and the other half of the roof was missing. 3. That the roof of the first floor of the shop as well as of the back room of the shop was in a dilapidated condition also. The half roof of the first floor of the shop and of the back room were also missing and the other half of the roof of the first floor of the shop consisting of only 13 batons in one half and 4 batons in the other half of the roof was in existence and the other half roof of the first floor of the back room was in existence consisting of 10 batons only. 4. That there was no electric meter/connection in the shop. The shop is not worth running any business any more and the shop has become totally unfit for human habitation, there being no roofs. 5. 4. That there was no electric meter/connection in the shop. The shop is not worth running any business any more and the shop has become totally unfit for human habitation, there being no roofs. 5. That the Chubaras on the first floor are also damaged and have totally become unsafe and repair of the shop is not possible with a meagre amount and to make the Chubaras worth use, all the roofs will have to be reconstructed afresh. 6. That on enquiries made from the neighbouring shop-owners and people collected near the shop at the time of inspection by the Local Commissioner it came to notice that no business was being run in the shop by Des Raj and only 4/5 days earlier the said 25 bags were stacked in the shop in view of the impending visit of the Local Commissioner on 6.2.2004. 7. That no need for taking photographs was felt essential as the factual/actual position of the building in dispute was visible to the naked eye." 6. A close perusal of the afore-quoted report of the Local Commissioner Shri A.S. Sarao goes to reveal that the condition of the demised shop has become completely dilapidated and it has become thoroughly unfit and unsafe for human habitation and is not worth running any business any more. There was no electric meter or electric connection in the shop. There was also no roofs over the shop. The Chaubaras on the first floor have been damaged and have become totally unsafe and the repair of the shop is not possible. The Local Commissioner further reported that his inquiries revealed that no business is being run in the shop by Des Raj petitioner and only 4-5 days earlier he had placed 25 bags in the shop in view of the impending visit of the Local Commissioner. In view of this report of the Local Commissioner, who was appointed on the consent of the counsel of both the sides, the argument that the Appellate Authority wrongly held that the shop was unfit and unsafe for human habitation is without any basis. The ratio of the afore-mentioned authorities relied upon by the learned counsel for the petitioner is not applicable to the facts appearing in the present case. The ratio of the afore-mentioned authorities relied upon by the learned counsel for the petitioner is not applicable to the facts appearing in the present case. In Bharat Singhs case (supra) the demised shop was in bad condition and supported by three `Karis since the inception of the tenancy, whereas in the present case, such is not the position. In Daulat Rams case (supra) the landlord had led evidence with regard to unfitness of a portion in occupation of the tenant. However, no evidence was led that rest of the building was also unfit for human habitation. Besides this, the landlord had also allegedly demolished 3/4th of the room of the latrine being used by the tenant. In this situation, it was held by this Court that in the absence of evidence that entire building is in dilapidated condition, the tenant cannot be ordered to be evicted. Similar is the position in Piara Lals case (supra) wherein it was held by the Honble Supreme Court that falling down of the roof in one room by itself is not sufficient to warrant a finding that the entire building had become unfit and unsafe for human habitation. In the present case, in view of the report of the Local Commissioner dated 10.2.2004 there does not remain any shadow of doubt that the demised shop is unfit and safe for human habitation. The petitioner has already abandoned the shop and is no longer running any business therein in view of its dilapidated condition. Had it been not so, the petitioner- tenant would not have stopped running business in that shop. 7. The last argument raised by the learned counsel for the petitioner is to the effect that in the report dated 23.9.1994 submitted by the Local Commissioner earlier appointed by the trial Court it was mentioned that the roof of the shop had been dismantled by human hand, whereas the condition of the remaining portion of the roof of the shop and the other portion of the demised premises were in good condition. This argument is without any basis in the absence of any independent evidence and also in view of the latest report dated 10.2.2004 submitted by Shri A.S. Sarao, Advocate, who was appointed Local Commissioner on the consent of the counsel appearing for both the sides before the Appellate Authority, Sangrur. This argument is without any basis in the absence of any independent evidence and also in view of the latest report dated 10.2.2004 submitted by Shri A.S. Sarao, Advocate, who was appointed Local Commissioner on the consent of the counsel appearing for both the sides before the Appellate Authority, Sangrur. Moreover, it has been held by the Honble Supreme Court in Lekh Raj v. Muni Lal, 2001(1) RCR(Rent) 168 (SC) that the question whether the roof was damaged by the landlord or was damaged because of the building being old and dilapidated is a question of fact, proof of it could only be through leading evidence and not through a Local Commissioner. In view of this finding of the Apex Court, the argument that the earlier Local Commissioner had reported that the roof of the shop had been dismantled "by human hand" is rejected. 8. In the light of above discussion, I do not find any infirmity in the well- reasoned judgment and decree dated 14.2.2004 passed by the Appellate Authority, Sangrur, and I uphold the same. Consequently, there is no merit in both the revision petitions. The petitions are, accordingly, dismissed.