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2007 DIGILAW 1426 (PNJ)

Surta v. Kailash Chand

2007-08-01

SATISH KUMAR MITTAL

body2007
Judgment Satish Kumar Mittal, J. 1. This is tenants petition under Section 15 (6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as `the Act), directed against the judgment passed by the Appellate Authority, ordering ejectment of the petitioner on the ground that the demised shop has become unfit and unsafe for human habitation. 2. The brief facts of the case are that the demised shop is in possession of the tenant since 1957-58 on monthly rent of Rs. 32/-. In the year 1973, the respondent-landlords filed the ejectment application against Desu (who died during the pendency of the petition and whose son Surta, the present petitioner, was substituted as his legal representative) on the grounds of non-payment of rent and the demised shop having become unfit and unsafe for human habitation. It was pleaded by the landlords that the demised shop is very old and was constructed with bricks and earth having wooden battens that the walls, floor and roof of the shop were completely in dilapidated condition. It was also pleaded that floor of the demised shop was one foot lower than the road in front of the shop and that many cracks had developed in the walls. Thus, the case of the landlords was that the demised shop was in dilapidated condition and had become unfit and unsafe for human habitation. 3. The tenant contested the said ejectment application. The arrears of the rent, as claimed by the landlords, along with costs and interest, as assessed by the Rent Controller, were tendered on the first date of hearing. Regarding the condition of the shop, it was pleaded that the demised shop is in good condition and is perfectly safe and fit for human habitation. 4. In support of their case, the landlords examined PW1 Prem Chand, PW2 C.L. Sehgal, a building expert, and PW3 Kailash Chand. The landlords also placed on record report of the building expert as Ex.A1. On the other hand, the tenant examined himself as RW1, Raje Ram as RW2 and Lekh Raj, building expert, A.S. RW.3, and placed on record report of the building expert as Ex.RW.3/A. 5. The landlords also placed on record report of the building expert as Ex.A1. On the other hand, the tenant examined himself as RW1, Raje Ram as RW2 and Lekh Raj, building expert, A.S. RW.3, and placed on record report of the building expert as Ex.RW.3/A. 5. The Rent Controller, after considering the evidence led by the parties, dismissed the ejectment application, while coming to the conclusion that in view of the evidence available on the record, it has been established on record that repairs were carried out by the tenant, which made the demised premises fit and safe for human habitation. Therefore, in view of the judgment of the Supreme Court in Shadi Singh v. Rakha, 1992(2) R.C.R.(Rent) 7 : (1992- 2)102 PLR 163, the ejectment order cannot be passed against the tenant on the ground that the demised premises is in dilapidated condition. 6. On appeal by the landlords, the aforesaid order of the Rent Controller has been set aside and it has been held that in spite of the alleged claim of the tenant that the demised premises was repaired by him, the same is still in dilapidated condition; and unfit and unsafe for human habitation. The Appellate Authority has arrived at this conclusion on the basis of the pleadings of the parties and the evidence led by them. It has been observed that the tenant has not specifically controverted in the written statement the allegations of the landlords that the demised premises is old one and was constructed with bricks and earth having wooden battens; that the walls, floor and roof of the demised shop were completely in damaged and dilapidated condition; that the floor of the shop was one foot lower than the level of the road in front of it; that there were so many cracks in the walls; and that even support had been given to the wooden battens fixed in the roof to avoid its falling down. In the written statement, the tenant has simply denied the averments and stated that the demised shop was in good condition; and fit and safe for human habitation. No specific reply regarding the condition of the roof, floor, walls and battens etc. was given. Secondly, the Appellate Authority came to the conclusion that the Rent Controller has not properly considered and appreciated the report Ex.Al given by AW2 Sh. No specific reply regarding the condition of the roof, floor, walls and battens etc. was given. Secondly, the Appellate Authority came to the conclusion that the Rent Controller has not properly considered and appreciated the report Ex.Al given by AW2 Sh. C.L. Sehgal, the building expert produced by the landlords. It has been observed that from the said report, it is clear that the demised premises is still in dilapidated condition and the same is unfit and unsafe for human habitation. It has also been observed that report of the building expert produced by the tenant i.e. Ex.RW.3/A observing that the building is in good condition is not reliable, as the said report was given by the expert after more than one year of the inspection of the spot and at the fag end, when the case was going to be decided. It has also been found that the said report Ex.RW.3/A does not establish that the building is fit and safe for human habitation. The Appellate Authority has also come to the conclusion that the judgment of the Supreme Court in Shadi Singhs case (supra), relied upon by the Rent Controller, is not applicable to the facts and circumstances of the instant case, as in the instant case, the tenant never claimed that he had repaired the shop and made it fit for human habitation. On the other hand, from the evidence on the record, it has established that the demised shop is still unfit and unsafe for human habitation. 7. Learned counsel for the petitioner-tenant argued that the Appellate Authority has committed grave illegality while reversing the judgment of the trial Court. He submitted that by giving much emphasis to the report Ex.A1 given by PW.2 C.L. Sehgal, the Appellate Authority has come to the conclusion that the building is still unfit and unsafe for human habitation. Learned counsel contends that as per the statements of AW.2 and AW.3, the wooden battens were replaced by the tenant, therefore, the observation made by the Appellate Authority that the wooden battens are in dilapidated condition is totally contrary to the evidence on the record. Learned counsel further submitted that the report Ex.A1 given by PW.2 C.L. Sehgal cannot be considered and relied upon, as before inspecting the spot, the said expert did not give any information or notice to the tenant. Learned counsel further submitted that the report Ex.A1 given by PW.2 C.L. Sehgal cannot be considered and relied upon, as before inspecting the spot, the said expert did not give any information or notice to the tenant. He further submitted that the Appellate Authority has wrongly discarded the report Ex.RW.3/A, given by the expert produced by the tenant, on the ground that it was given after more than one year of the inspection of the spot and just shortly before decision of the petition. 8. On the other hand, learned counsel for the respondents-landlords submitted that the Appellate Authority, after taking into consideration and appreciating the evidence led by both the parties, recorded a finding of fact that the demised shop has become unfit and unsafe for human habitation. He submitted that the said finding of fact is not liable to be interfered in the revisional jurisdiction of this Court. He further submitted that the Rent Controller without properly appreciating the evidence available on the record has wrongly dismissed the ejectment application, while relying upon Shadi Singhs case (supra), when the said decision was not applicable to the facts and circumstances of this case. He submitted that though the tenant has replaced 3 or 4 wooden planks before inspection by the expert of the landlords, but in spite of that the demised shop was still in dilapidated condition and the said fact has been proved from the report Ex.A1, which has been duly proved by PW.2 C.L. Sehgal Learned Counsel submitted that the Appellate Authority has rightly taken into consideration each and every evidence produced by the parties and after appreciating the same has come to the conclusion that the demised shop is unfit and unsafe for human habitation and then passed the order of the ejectment. The said order of ejectment, which is based upon finding of fact is not liable to be interfered. 9. After hearing the arguments of learned counsel for the parties and pursuing the judgments, passed by both the courts below as well as record of the case, I do not find any merit in this petition. As per the evidence available on the record, it has not been disputed that the demised shop is an old building, which was constructed with bricks and earth having wooden battens. As per the evidence available on the record, it has not been disputed that the demised shop is an old building, which was constructed with bricks and earth having wooden battens. It has also not been disputed that floor of the demised shop is one foot lower than the level of the road in front of it. It is also admitted case of the parties that when in the year 1960, there was flood in Gohana, the shop remained under the flooded water for 3/4 days. As per the report Ex.A1, given by PW.2 C.L. Sehgal, Building Expert, who inspected the shop on 28.12.1990, most of the bricks of the wall had developed Shorakallar and cracks and arches on openings. At some portions, the walls had also gone out of plumb. According to him, the shop had two Khans. The inner Khan was being used for storage of waste material and the said Khan was found to be completely in dilapidated condition. It has been reported that the wooden batten and planks had been affected by the mud and white ants and some of the battens were sagging and had left the bearing on the wall. The said expert also found that few battens were appearing to have been replaced recently before his inspection. If those battens had not been replaced, the roof was bound to fall. It has been further found that brick floor of the shop has become uneven due to long wear and tear. It has been observed that building had already lived its life and was in dilapidated condition. 10. I do not find any ground to discard the aforesaid report given by PW.2 C.L. Sehgal. It cannot be ignored on the ground that before visiting the spot, notice was not given to the tenant, because the shop was inspected by the expert in the presence of the tenant. I have also perused the report Ex.RW.3/A, given by the Building Expert produced by the tenant. In this report, the expert did not give report regarding condition of the battens. Even he has not stated that some of the battens had been replaced by the tenant. The report given by this expert is totally vague. This report was submitted on 13.10.1992, whereas he inspected the shop on 11.5.1991. No reason is forthcoming for so much delay in preparation and submission of the report to the court. Even he has not stated that some of the battens had been replaced by the tenant. The report given by this expert is totally vague. This report was submitted on 13.10.1992, whereas he inspected the shop on 11.5.1991. No reason is forthcoming for so much delay in preparation and submission of the report to the court. Thus, in my view, the Appellate Authority has rightly discarded this report and has not given it more weightage in comparison to the report prepared by PW2. When the tenant appeared in the witness box as RW.1, he had specifically stated that he had not replaced any batten and the building was fit for human habitation. Even in the cross examination, he denied having carried any repair in the demised shop. When he himself has denied that he has not repaired the shop and there is no evidence on the record that after the said report, the building is fit and safe for human habitation, it cannot be said that the tenant is not liable to be evicted from the demised shop, as he has made the building fit for human habitation by carrying necessary repairs. 11. Thus, it has been rightly held by the Appellate Authority that the judgment of the Supreme Court in Shadi Singhs case (supra) is not applicable to the facts and circumstances of this case. Thus, in my opinion, in the instant case, the Appellate Authority, on the proper consideration and appraisal of the evidence adduced by both the parties, has come to the conclusion that the demised shop has become unfit and unsafe for human habitation. I do not find any justification in disturbing the said finding of fact in the revisional jurisdiction of this Court. The power of revision under Section 15(6) of the Act to interfere in the finding recorded by the Rent Controller or the Appellate Authority is very limited. It can be exercised in case the finding recorded by the courts below are perverse or without evidence or the finding is based on perfunctory and superficial approach adopted by the Courts below. In the instant case, I do not find that the finding recorded by the Appellate Authority is perverse or contrary to the evidence on record. It can be exercised in case the finding recorded by the courts below are perverse or without evidence or the finding is based on perfunctory and superficial approach adopted by the Courts below. In the instant case, I do not find that the finding recorded by the Appellate Authority is perverse or contrary to the evidence on record. The Appellate Authority has considered each and every evidence led by the parties and after appreciating the same, it has come to the conclusion that still the demised shop is in dilapidated condition and is unfit and unsafe for human habitation. Therefore, in exercise of the revisional power of this Court, I do not find any ground to interfere in the impugned judgment passed by the Appellate Authority. Dismissed. Petition dismissed.