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2005 DIGILAW 392 (PNJ)

Kalra Trunk House v. Sukhdev Mitter

2005-03-16

VINEY MITTAL

body2005
Judgment Vinay Mittal, J. 1. The tenants are petitioners before this Court. They have impugned the orders dated March 11, 1987 passed by the Rent Controller, Zira and orders dated February 22, 1989 passed by the Appellate Authority, Ferozepur. Vide the aforesaid orders, the learned authorities below have ordered the ejectment of the tenants. 2. The ejectment of the tenants was sought by the landlord-respondent on the ground of non-payment of arrears of rent; change of user of the premises without the consent of the landlord; and the shop having become unfit and unsafe for human habitation. The landlord claimed that the rent of the shop had not been paid with effect from October 10, 1982. It was claimed that originally the shop in question had been let out and was being used for the purposes of selling and manufacturing of tin trunks and patties (boxes). However, later on the tenants had installed lathe machine and a welding set in the premises in question. This act was claimed to be change of user. On that basis, it was further claimed that the aforesaid act had impaired the value and utility of the premises in dispute. The landlord further claimed that the roof of the shop in dispute had become unfit and unsafe and could fall at any time. It was made of shatiries, ballas and sirkies. The aforesaid sirkies had become useless due to old age. Some ballas were hanging and had left their original place. The shatiries had also been damaged by the white ants. Due to this condition of the shop the rain water falls in it. The tenants had covered the roof with tarpaulin. Even the walls are affected. Accordingly, it was claimed that the building has become unfit and unsafe for human habitation. 3. The learned Rent Controller held that shop had become unfit and unsafe for human habitation. It was further held that by installation of the lathe machine and welding set, a mechanical process has been started by the tenants which mounted to change of user. The learned Rent Controller also held that the tender made by the tenants on the first date of hearing is not valid. Accordingly, the ejectment of the tenants from the premises in question was ordered. 4. The tenants filed an appeal before the appellate authority. The learned appellate authority re-appraised the entire evidence. The learned Rent Controller also held that the tender made by the tenants on the first date of hearing is not valid. Accordingly, the ejectment of the tenants from the premises in question was ordered. 4. The tenants filed an appeal before the appellate authority. The learned appellate authority re-appraised the entire evidence. On such re-appraisal, the learned appellate authority found that the tender of arrears of rent by the tenants on the first date of hearing was legal and valid. The finding recorded by the learned Rent Controller in this regard was reversed. However, the learned appellate authority also found that by installation of the lathe machine and welding set, the tenants had changed the user of the premises in question. The finding with regard to the condition of the building was, however, re-affirmed. Accordingly, it was held that the building in question had become unfit and unsafe for human habitation. On that ground, the appeal filed by the tenants was dismissed. 5. The tenants have accordingly approached this Court through the present petition. 6. I have heard Shri M.L. Sarin, the learned Senior Advocate with Ms. Alka Sarin, the learned counsel for the petitioners and Shri Arun Jain, the learned counsel for the respondent and have also gone through the records of the case. 7. Shri M.L. Sarin, the learned senior counsel appearing for the tenants has assailed the orders of the authorities below by contending that both the grounds of ejectment are not proved. It has been contended that the tenants had taken the premises in question for the purposes of manufacturing and selling of tin trunks and patties. On that basis, the learned senior counsel maintains that the landlord had himself given premises for manufacturing purposes. Thus, the installation of a lathe machine and welding set, which were only tools required for manufacturing, could not be taken to be a change of user by the tenants. It has been argued by the learned senior counsel that the findings recorded by the authorities below with regard to condition of building were also liable to be set aside as there was no basis for holding that the building in question had become unfit and unsafe for human habitation. The learned senior counsel has referred to various statements of the witnesses and the other evidence on record to support the aforesaid contention. The learned senior counsel has referred to various statements of the witnesses and the other evidence on record to support the aforesaid contention. Shri Sarin has also placed reliance upon the statement of RW1, building expert to contend that the aforesaid expert had opined that the building in question was absolutely fit for human habitation. 8. On the other hand, Shri Arun Jain, the learned counsel appearing for the landlord has defended the orders of ejectment passed by the authorities below. It has been contended by Shri Jain that the premises in question had been let out for the purposes of selling and manufacturing of tin trunks and patties. However, no mechanical process was required for the aforesaid purpose. Now by installing the lathe machine and welding set, a mechanical process had been started by the tenants which was a new process and, therefore, not only the tenants had changed the user of the premises in question but the aforesaid act had impaired the value and utility of the premises. Additionally, the learned counsel has also supported the ejectment of the tenants on the ground that the building had become unfit and unsafe for human habitation. Shri Jain has also paced reliance upon the report of Local Commissioner Ex.A5 to support his contention that the building had become totally unfit and unsafe for human habitation. Shri Jain has also relied upon the statement of AW1, the building expert produced by the landlord and the report submitted by him to contend that the building in question had become totally useless and unfit for human habitation. 9. I have given my due and thoughtful consideration to the rival contentions of the learned counsel for the parties. 10. Firstly, let us examine the change of user. The landlord had himself pleaded in the ejectment application that the shop in question was taken for the purposes of manufacturing and selling of tin trunks and patties. Although it was claimed that the lathe machine and welding set have been installed in the shop later on and on that basis, it was claimed that the tenants had changed the user thereof but the aforesaid fact was specifically denied by the tenants in their reply filed to the ejectment application. Although it was claimed that the lathe machine and welding set have been installed in the shop later on and on that basis, it was claimed that the tenants had changed the user thereof but the aforesaid fact was specifically denied by the tenants in their reply filed to the ejectment application. It was maintained by them that they were still doing the business of manufacturing and selling of tin trunks and patties but the said business had been extended and for that purpose they had installed a lathe machine and welding set which was required by them for the aforesaid manufacturing process. Thus, it was maintained by the tenants that the aforesaid expansion of business of manufacturing did not amount to any change of user. While appearing as his own witness, landlord Sukhdev Mitter, AW5 in his cross-examination also admitted that the shop had been let out to the tenants for manufacturing of tin trunks and patties and iron angles are used while preparing the patties. However, he denied that lathe machine, drill machine and welding set are required for manufacturing the tin trunks and patties. On the other hand, it was claimed that the aforesaid tin trunks and patties could be manufactured without using the welding set, drill machine and lathe machine. Thus, it is apparent that the admitted position between the parties is that the work of manufacturing of tin trunks and patties is still being carried out by the tenants in the premises in question, for which purpose the shop had been originally let out. The only controversy between the parties is with regard to the installation of lathe machine and welding set. In my considered opinion, the mere installation of lathe machine and welding set would not amount to any change of user of the premises in question. Admittedly, the premises had been let out for manufacturing purposes. The aforesaid purpose is still being continued by the tenants. With the passage of time, certain additional machines have been installed for the aforesaid manufacturing process. Mere installation of certain additional machines, in my considered opinion, cannot be taken to be a change of user. The landlord has also tried to seek ejectment of the tenants on the ground of impairment of value and utility of the shop. However, no evidence whatsoever has been led by the landlord in this regard. Mere installation of certain additional machines, in my considered opinion, cannot be taken to be a change of user. The landlord has also tried to seek ejectment of the tenants on the ground of impairment of value and utility of the shop. However, no evidence whatsoever has been led by the landlord in this regard. Thus, the mere fact of installation of the additional machinery cannot bring the case of the tenants within the mischief on the ground of change of user. The authorities below have been merely influenced by the installation of the aforesaid machines, without taking into consideration the original purpose for which the shop in question had been let out. Thus, the findings recorded by the authorities below in this regard are not legally sustainable. Accordingly, the aforesaid findings are reversed and it is held that there has been no change of user of the premises in dispute by the tenants. 11. The second ground on which the ejectment of the tenants has been ordered by the authorities below is that the building in question has become unfit and unsafe for human habitation. The landlord in his ejectment petition has specifically pleaded that the shop had become unfit and unsafe for human habitation. It was claimed that the roof of the shop was in such a condition that it could fall at any time. The roof was made by shatiries, ballas and sirkies and, therefore, the aforesaid sirkies have become useless due to old age and earth of roof is falling in the shop. Some ballas are hanging and have left their original places. The shatiries are also damaged by the white ants. The rain water falls into the shop and that the tenants had covered the roof with tarpaulin. It was also claimed that the walls are affected with kullar. In reply to the aforesaid ejectment petition, the tenants merely stated that the shop in question was quite fit and safe for human habitation. The condition of the wooden beams and the sirkies was quite good. The roof and ceiling of the shop were quite good and these could stand for at least 30 years. 12. The learned Rent Controller appointed a Local Commissioner to visit the spot and report. The Local Commissioner, Jagan Nath, Advocate visited the spot on May 2, 1985 in the presence of the parties. His report is Ex.A.5 on the record. The roof and ceiling of the shop were quite good and these could stand for at least 30 years. 12. The learned Rent Controller appointed a Local Commissioner to visit the spot and report. The Local Commissioner, Jagan Nath, Advocate visited the spot on May 2, 1985 in the presence of the parties. His report is Ex.A.5 on the record. The Local Commissioner has reported as follows: "In the presence of both the parties, I observed that the roof of the shop in dispute is damaged at three places and holes are developed, which is covered by placing phatties. At some places, earth was dripping from the roof because of the damage of sirkies. Three ballas are broken and leaning down ward from one side. Most of the ballas are eaten of by wood worm. Two shatiries are also eaten of by wood warm. The sirikes of the roof are also in bad condition. The walls of the shop in dispute have also developed cracks at three places. The respondents have covered the top of the roof of the shop in dispute with white momjama. So, the roof should not leak in rainy season. The ground floor is damaged at the front which is made of bricks. 13. The Local Commissioner also appeared as a witness as AW4. He proved his aforesaid report as Ex.A5. He was duly cross-examined by the tenants. From the cross-examination of the aforesaid witness, nothing could be extracted by the tenants to show that the report Ex.A5 did not reflected the correct position. 14. The landlord as well as the tenants produced their own experts, respectively. Shri Pritam Singh, Assistant Executive Engineer, the expert produced by the landlord, submitted his report as Ex. A3. The aforesaid report shows that there are holes in the roof as the sirki kana is rotten and the earth falls from the roof through the aforesaid holes. It was further opined by the aforesaid expert that wooden phattis had been provided in the roof and some wooden battens were found broken. The top of the roof is kuchha and the same was covered with polythene cover to prevent leakage. The roof is sagging towards the floor. Accordingly, it was opined that the shop in dispute has become unfit and unsafe for human habitation. The tenants also produced an expert Pritam Singh. The top of the roof is kuchha and the same was covered with polythene cover to prevent leakage. The roof is sagging towards the floor. Accordingly, it was opined that the shop in dispute has become unfit and unsafe for human habitation. The tenants also produced an expert Pritam Singh. However, the aforesaid expert stated that the shop was in safe and sound condition. 15. Both the learned counsel appearing for the parties have tried to draw support from the respective experts produced by the landlord and tenants. On that basis, the learned counsel for the tenants has maintained that the building in question was safe and good and could not be termed as unfit in any manner but the learned counsel for the landlord has argued that the building had outlived its age and had become unfit and unsafe for human habitation. 16. In my considered opinion, the report ,of the Local Commissioner Ex.A5 reproduced above duly clinches the matter. It is a case where experts produced by the respective parties, have tried to support their own pay masters. But the report of the Local Commissioner appointed by the Court fully supports the claim of the landlord. The Local Commissioner has given his independent report. The Local Commissioner has also been examined and cross-examined by the parties. The report of the Local Commissioner Ex. A5 clearly shows the damaged condition of the roof. There is absolutely no reason to ignore the aforesaid report submitted by the Local Commissioner. The perusal of the report shows that the building in question has become unfit and unsafe for human habitation. 17. Faced with the aforesaid situation, Shri M.L. Sarin, the learned senior counsel appearing for the petitioners, has argued that the report of the Local Commissioner could not be relied upon to give a finding with regard to the condition of the building. He has argued that the aforesaid Local Commissioner was not a building expert and, therefore, his opinion could not be taken to be an expert opinion with regard to the condition of the building. In support of the aforesaid contention, the learned counsel has relied upon a judgment rendered in Nand Kishore V/s. Ved Parkash, 1999(1) R.C.J. 633. 18. Having duly considered the aforesaid contention of the learned counsel, I find myself unable to agree with the same. In support of the aforesaid contention, the learned counsel has relied upon a judgment rendered in Nand Kishore V/s. Ved Parkash, 1999(1) R.C.J. 633. 18. Having duly considered the aforesaid contention of the learned counsel, I find myself unable to agree with the same. The report of the Local Commissioner is only a depiction of things existing at the spot. The aforesaid report is not being relied upon by this Court with a view to take the same as an opinion of an expert but only with a view to find out the existence of certain facts. Once the condition of the shop has been depicted by the aforesaid report, then an inference is liable to be drawn that the building in question has become unfit and unsafe for human habitation. The aforesaid report of the Local Commissioner finds full corroboration from the report Ex.A3 submitted by Pritam Singh, the expert produced by the landlord. On the other hand, report submitted by the expert produced by the tenants merely states in very general terms with regard to condition of the building in question. Thus, the report of the Local Commissioner, coupled with the expert opinion produced by the landlord, clearly leads to an irresistible conclusion that the shop in question has become unfit and unsafe for human habitation. The findings in this regard recorded by the authorities below are absolutely justified and are based upon cogent evidence. 19. Another argument raised by the learned counsel for the petitioners may also be noticed. It has been argued by the learned counsel for the tenants that since the landlord had made a false claim of rent, therefore, his entire case was liable to be rejected. Reliance has been placed by the learned counsel on the judgments of this Court in Fakir Chand and Anr. V/s. Bhagwan Dass (1994-3) 108 P.L.R. 129 and 1999(2) Rent Control Reporter 203 (Chaman Mal V/s. Shiv Shankar Trust, Jagadhri,). 20. I have gone through the aforesaid authorities relied upon by the learned counsel for the tenants. In my considered opinion, the aforesaid authorities have no application to the facts and circumstances of the case. In the aforesaid authorities the Court was examining the question of weight to be attached to the statement of the landlord in support of the ground of ejectment. In my considered opinion, the aforesaid authorities have no application to the facts and circumstances of the case. In the aforesaid authorities the Court was examining the question of weight to be attached to the statement of the landlord in support of the ground of ejectment. It was in those circumstances this Court had held that when the landlord had been found to be not truthful with regard to the rate of rent, then his statement with regard to the other ground of ejectment would also not be accepted. However, in the present case, the claim of the landlord is not based upon his bald statement. The ground of ejectment stands duly proved from the other evidence on record, including the report of the Local Commissioner and the building expert. Thus, the aforesaid authorities are totally inapplicable to the facts of the case in hand. 21. To be fair to the learned counsel for the tenants, reliance placed by him to the judgment of the Supreme Court in 1988 Supreme Court 1432 (Piara Lal V/s. Kewal Krishan Chopra,) may also be noticed. On the strength of the aforesaid judgment, it was argued that even if roof of one room in leased portion had fallen down, still it could not be held that the entire building had become unfit and unsafe. Facts of the aforesaid case are totally distinguishable and, therefore, the law laid down by the Apex court in Piara Lals case (supra) is not at all applicable. In Piara Lals case (supra) a finding of fact had been recorded that it was only roof of one of the rooms on the rear side which had fallen down but the remaining entire building was not shown to be unfit and unsafe. In those circumstances it was held that it could not be concluded that the entire building had become unfit and unsafe for human habitation. In the present case, the entire roof of the premises in question has become unfit and unsafe. Therefore, the law laid down in Piara Lals case (supra) is also not applicable. 22. As a consequence, I have no hesitation in upholding the findings recorded by the authorities below that the building in question has become unfit and unsafe for human habitation thereby entitling the landlord to seek the eviction of the tenants. 23. Therefore, the law laid down in Piara Lals case (supra) is also not applicable. 22. As a consequence, I have no hesitation in upholding the findings recorded by the authorities below that the building in question has become unfit and unsafe for human habitation thereby entitling the landlord to seek the eviction of the tenants. 23. In view of the aforesaid discussion, I find that while the landlord has failed to prove his ground of change of user but it has been clearly proved that the building in question has become unfit and unsafe for human habitation. On that ground, the landlord is entitled to seek the ejectment of the tenants. Consequently, the present revision petition is dismissed. 24. However, the tenants are granted three months time to vacate and hand over the vacant possession to the landlord subject to their paying/depositing all arrears of rent and furnishing an undertaking before the learned Rent Controller, within one month to the effect that they shall hand over the vacant possession within the aforesaid period.