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2007 DIGILAW 182 (PNJ)

Hirdey Ram v. Jai Bhagwan

2007-01-31

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. The challenge in the present revision petition is to the order of ejectment passed by the learned Appellate Authority on the ground of non-payment of rent as well as for the reason that the building has become unfit and unsafe for human habitation. 2. The respondent (hereinafter to be referred as `the landlord) sought ejectment of the petitioner (hereinafter to be referred as `the tenant) on the ground that the tenant is in arrears of rent w.e.f. 1.3.1979 to 31.3.1983 at the rate of Rs. 80/- per month and that the premises in dispute are quite old and in dangerous and dilapidated condition and has become unfit and unsafe for human habitation. The tenant asserted that the rate of rent is Rs. 40/- per month and he has already paid the rent for the period claimed by the landlord. He also denied that the building has become unfit an unsafe for human habitation. 3. On the application filed by the landlord for appointment of the Local Commissioner, the learned Rent Controller appointed Shri Sumer Chand, Overseer Jagadhari, Yamuna Nagar, as Local Commissioner to visit the spot and to submit his report regarding the condition of the building, floor and the walls. The report of the said Local Commissioner is tendered into evidence as Exhibit PX along with site plan Exhibit PY attached thereto. The landlord also examined himself as AW-1. To rebut such evidence, the tenant appeared as his own witness and also produced RW-2 Shri S.P. Gupta, an expert, to prove the nature of the building. 4. The learned Rent Controller dismissed the ejectment petition holding that the rate of rent is Rs. 40/- per month and that the tender made by the tenant is valid. However, in respect of the ground of eviction that the building has become unfit and unsafe for human habitation, the learned Rent Controller found that there are two contradictory reports. Report Exhibit PX is somewhat detailed report in comparison to the report Exhibit RW-2/A but the evidence produced by the landlord is lacking relevant basic facts of the condition of the building, and thus, the landlord has failed to prove that the building has become unfit and unsafe for human habitation. 5. Report Exhibit PX is somewhat detailed report in comparison to the report Exhibit RW-2/A but the evidence produced by the landlord is lacking relevant basic facts of the condition of the building, and thus, the landlord has failed to prove that the building has become unfit and unsafe for human habitation. 5. The learned Appellate Authority reversed the finding of the learned Rent Controller in respect of arrears of rent as well as on the ground of eviction being that the building has become unfit and unsafe for human habitation and passed an order of eviction thereon. The learned Appellate Authority relied upon report Exhibit PX to hold that the building has become unfit and unsafe for human habitation. It was found that expert Shri S.P. Gupta, RW-2, has not inspected the spot in the presence of the landlord. The report Exhibit PX was prepared by the Local Commissioner appointed by the Court. The Court also considered the fact that as per report Exhibit PX the wall of the roof has cracks at two places; two roof beams have cracks; the walls of the second room have also cracks; doors, lintel and beams have rusted; dehliz and stairs have fallen and the house is more than 100 years old; and the roofs also leak in the rainy season. 6. In the present revision petition, learned counsel for the landlord has not pressed the arrears of rent as the ground of eviction but supported the order of eviction passed by the learned Appellate Authority which is to the effect that the building has become unfit and unsafe for human habitation. 7. Learned counsel for the tenant has vehemently argued that mere old age of the building is not sufficient to return a finding that the building has become unsafe and unfit for human habitation. The expert in his report Exhibit PX has not given any details of the cracks on the walls or roof and such details alone would have been relevant to assess whether such cracks can be repaired or not. It is further argued that the finding that Dehliz and staircase has fallen down cannot be taken into consideration for the reason that such was not the assertion of the landlord nor it is the case of the landlord that substantial part of the building is unfit and unsafe for human habitation. It is further argued that the finding that Dehliz and staircase has fallen down cannot be taken into consideration for the reason that such was not the assertion of the landlord nor it is the case of the landlord that substantial part of the building is unfit and unsafe for human habitation. Even if falling of the Dehliz and staircase is to be taken into consideration, such fall of the building is not indicative of the fact that entire building has become unfit and unsafe for human habitation. Learned counsel for the tenant relies upon Sohan Lal (died) and others v. Amar Nath and others, 1992(1) RCR(Rent) 543 : 1992(2) PLR 273 and Tek Chand v. Rattan Lal and others, 2003(1) PLR 512. 8. After hearing learned counsel for the parties, I do not find any patent illegality or material irregularity in the impugned order passed by the learned Appellate Authority which may warrant interference by this Court in exercise of its revisional jurisdiction. The report of the Local Commissioner appointed by the Court and admitted in evidence without any objection from the landlord shows the condition of the building. The Local Commissioner has given the condition of each room and explained the same in the site plan as well. In room No. 1 where the roof beam was resting has cracks towards street at two places, two of the roofs tore were having cracks. In room No. 2, there is no door, window and ventilator has no chaukhats but had a big pit measuring 2x2-1/2 filled with mud and earth and patches were repaired. The roof condition could not be seen as the room was badly affected with smoke. The walls had cracks, door, ventilators and beams were rusting. The beam of room No. 3 was found cracked. The beam shutters of room No. 4 fell down in the room when the bolt of the room was opened. There were cracks in the wall. In room No. 5, two karries were found replaced with four karries found cracked. The beam wall had three cracks from each side and four from inside. In respect of room No. 6, it was reported that the floor was plastered with cement and no door and window sills exists. Even the iron bars in the window were rotton due to passage of time. There were signs of roof leakage around. The beam wall had three cracks from each side and four from inside. In respect of room No. 6, it was reported that the floor was plastered with cement and no door and window sills exists. Even the iron bars in the window were rotton due to passage of time. There were signs of roof leakage around. The wall has given way, one beam has shifted its place by two inches. The wall of street side has an inclination of about 5" towards gate. Cracks were found at the point of beam load. In respect of room No. 8, it was found that the main entry door arch was cracked and the outer wall was also in cracked position. The main door was replaced by the tenant. The portion of the building mentioned at serial No. 9 of the report was found to be newly raised platform built by the tenant with old material obtained from the building. As per landlord, this is the portion of Dehliz and stairs and its material after demolition was used in platform. The Local Commissioner found that the structure of the building is more than 80 years old and the building is built with small bricks with lime morter and repairs is done with mud-morters. All the roofs are having either cracked tore or batoons. The doors are eaten by the passage of time. The walls cannot bear the load of even the beams and have cracks. The wall towards gate is bent upon up to 5". The condition of the building is very deplorable and is unfit for human residence. Even the tenant is using only two rooms out of six rooms and the other four rooms are lying vacant whereas room No. 3 is used as godown. 9. To rebut such evidence, report Exhibit RW3/A has been produced by the tenant. He has reported that the walls of the building are 20 inch thick and are made of old bricks in lime morter and plastered as well. Some patches of lime plaster have also been repaired. He has reported that the walls in spite of old age have not lost its physical strength and can easily withstand the load of the roof. In respect of the floors, it was found that there ware two patches but are easily repairable. Some patches of lime plaster have also been repaired. He has reported that the walls in spite of old age have not lost its physical strength and can easily withstand the load of the roof. In respect of the floors, it was found that there ware two patches but are easily repairable. The wood work was found to be of shisham wood but reported that it requires petty repairs. The said expert has found room No. 3 locked as the same is in possession of the landlord. After giving details of the Karris, it was concluded that the condition of the roof is quite sound and safe and that the building in dispute even having the age of 60 years is still quite safe and fit for human habitation. In cross- examination he has admitted that it is not possible to show the points of the defects in the building. Similarly, it is not possible to pin point the condition of the doors and roof. He has reported that two walls of the Dehliz were in existence. The tenant appearing as RW-1 has admitted that the roof leaks during rainy season. 10. The comparison of the reports leave no manner of doubt that the report produced by Shri Sumer Chand, an expert appointed by the Court as Local Commissioner, is exhaustive. In fact, it has been so found by the learned Rent Controller as well. The said report gives vivid description of the condition of the walls, roof and floor of each part of the building. May be, the said report is silent regarding the extent of cracks but the said fact alone will not be sufficient to hold that the building is fit for human habitation. He has concluded that the building is in deplorable condition. The said Local Commissioner has not been called for the purposes of cross-examination by the tenant. It was required of the tenant to call the Local Commissioner for the purposes of cross-examination as held by a Division Bench of this Court in Balbir Dewan v. Naveen Chander, AIR 1989 Punjab and Haryana 257. On the other hand, the report given by Shri S.P. Gupta is cryptic and vague. The said report has been discarded by the learned Appellate Authority. EVen the learned Rent Controller has not given any credence to such report. On the other hand, the report given by Shri S.P. Gupta is cryptic and vague. The said report has been discarded by the learned Appellate Authority. EVen the learned Rent Controller has not given any credence to such report. The learned Appellate Authority has considered the oral evidence as well to return a firm finding of fact that the building in dispute has become unfit and unsafe for human habitation. It is not the age alone which has been taken into consideration by the learned first Appellate Authority to return a finding that the building has become unfit and unsafe for human habitation. In fact, such finding has been returned on the basis of detailed report of the Local Commissioner appointed by the Court and the oral evidence led by the parties. It is a question of fact in each case whether the building has become unfit and unsafe for human habitation. The evidence on the record supports the finding recorded by the learned first Appellate Authority that the building is unfit and unsafe for human habitation. 11. In view of the above, I do not find any ground to interfere with the impugned order passed by the learned Appellate Authority. 12. Dismissed. However, the order of eviction shall not be executed for a period of three months from today.