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2013 DIGILAW 225 (PNJ)

Ashok Kumar v. Ramesh Kumar

2013-02-19

JASWANT SINGH

body2013
Jaswant Singh, J. 1. Petitioner(tenant) is in revision under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act') against the findings returned by both the Authorities below, whereby ejectment application filed by predecessor of respondents(landlords) Ram Parkash on the ground of building becoming unfit and unsafe for human habitation was allowed by the learned Rent Controller, Khanna vide its order dated 28.04.2008 and the findings thereof were affirmed by the learned Appellate Authority, Ludhiana vide its order dated 28.09.2012. In brief, the facts of the case are that predecessor of respondents(landlords) namely Ram Parkash filed an ejectment application on the ground that the shop in question has become unfit and unsafe for human habitation and it can fall at any time. It was stated in the application that the entire ceiling of the shop has been covered by the petitioner(tenant) with Polythene Tarpaulin in order to prevent earth from falling from the ceiling and to prevent rainy water from falling inside the shop. Numerous other instances were mentioned in the ejectment application to support his plea. Apart from this, various other grounds were also taken by the respondent(landlord) in his ejectment application including that of personal necessity. 2. Upon notice, the petitioner(tenant) denied all the grounds that were taken by the respondent(landlord) and prayer was made for dismissal of the petition. 3. Replication was filed, wherein the entire contents of the petition were reiterated and those of the written statement were denied. 4. From the pleadings of the parties issues were framed. Both sides lead their evidence in support of their respective claims and after appreciating their evidence learned Rent Controller allowed the ejectment application only on the ground of property being unfit and unsafe for human habitation and all other grounds were rejected by the Rent Controller and in appeal, the findings of the learned Rent Controller, Khanna were affirmed by the learned Appellate Authority, Ludhiana. Hence the present revision petition. 5. I have heard learned counsel for the petitioner(tenant) and have gone through the case file very carefully with his able assistance. 6. Learned Counsel for the petitioner(tenant) has argued that both the Authorities below have erred in law in ignoring the fact that the petitioner(tenant) had led affirmative evidence to show that the property in question was fit for human habitation and was in sound condition. 6. Learned Counsel for the petitioner(tenant) has argued that both the Authorities below have erred in law in ignoring the fact that the petitioner(tenant) had led affirmative evidence to show that the property in question was fit for human habitation and was in sound condition. It was argued that the building expert examined by the respondent(landlord) had admitted in his cross examination that he had not mentioned any dimensions about the cracks stated in his report. It was further argued that perusal of the entire report of the building expert would reveals that he has cited his pay master and same is absolutely hollow in terms of substance. It was also argued that a building expert was also examined by the petitioner(tenant) who has fully supported his case and still both the courts below have discarded the report on conjectures and surmises and hence the findings returned by both the courts below are liable to be set aside and the present petition deserves to be allowed. In support of his case, learned Counsel for the petitioner has stated that it has been held by this Court in Smt Phoolan Rani v. Smt. Pushpa Wati & Ors. : 1992(2)RCR 383 that a building which is 70 years old and has developed a few cracks do not lead to a presumption that the building has become unfit and unsafe for human habitation. Similar view has been taken in Daulat Ram v. PL Laxmi Narain : 2003(2) RCR 353, Surinder Singh Babra v. Bhushan Kumar Sharma : 2003(2) RCR 615 & Shankar Lal v. Madan Lal & Ors. : 2011(1) R.C.R. (Rent) 139 : 2010 (2)HLR 462. 7. After hearing learned Counsel for the petitioner(tenant) and perusing the paper book, this Court is of the opinion that present revision petition is devoid of any merit and the same deserves to be dismissed. 8. A perusal of the paper book reveals that the respondent (landlord) had examined S.K. Malhotra, building expert, who had proved his report on record as Ex. A-3. As per his report, the shop in question and the adjoining shop owned by Ram Parkash landlord(now deceased) is a monolithic structure i.e. both the shops have been built at one time and damage to one part affects the other part because this is one structure and thus the entire building is unfit and unsafe for human habitation. A-3. As per his report, the shop in question and the adjoining shop owned by Ram Parkash landlord(now deceased) is a monolithic structure i.e. both the shops have been built at one time and damage to one part affects the other part because this is one structure and thus the entire building is unfit and unsafe for human habitation. A perusal of the record further reveals that the said report was made by the building expert after spot inspection and both the courts below went through the entire report which was supported by technical reasoning. The credentials of this witness cannot be suspected because he is a retired public servant from PWD, Punjab Government who specializes in construction and maintenance of residential and non residential buildings and other Civil Engineering Projects. He issues safety certificates of building declaring them unfit when required. A perusal of the record reveals that details of the damages caused to the building which has rendered it unfit and unsafe have been mentioned in the said report which are corroborated with photographs which were also produced by this witness and also now form part of the record. The cracks which have been explained in the report by this witness are also visible in the photographs and perusal of the said cracks itself show the shabby condition of the building which might fall at any time. The learned Appellate Authority has further observed that the roof of the building started sagging i.e. it is bending downwards by weight. It has not been disputed by the learned Counsel for the petitioner that roof of the adjoining shop has already fallen down and tenant of that shop vacated the same and furnished an affidavit to this effect in favour of the respondent (landlord). It is also admitted fact that both the shops are monolithic structure. It has come on record that roof of the shop in dispute also fell down during the pendency of the appeal and, therefore, the petitioner (tenant) filed an application under Section 12 of the Act before the learned Rent Controller, Khanna for repair of the roof of the shop. Considering all the facts including the report of the building expert as well as the local commissioner Sh. Considering all the facts including the report of the building expert as well as the local commissioner Sh. B.S. Dhaliwal, Advocate, who also stated in his report regarding there being three visible cracks in the wall and two other cracks are seemed to have been repaired, this Court does not find any reason to interfere in the concurrent findings of both the courts below, especially when it has also been observed by both the courts and not disputed by the counsel for the petitioner that false ceiling of black plastic polythene tarpaulin has been fixed by the tenant. These facts themselves show that the building has become unfit and unsafe for human habitation and the cracks that are there on the walls might not be to serious to cause damage to the shop itself but the overall building is to be seen so as to come to a conclusion whether the building has become unfit and unsafe for human habitation or not. In the present case there are not only cracks in the building but the roof of the building has also fallen down and these facts themselves lead to an irresistible conclusion that the building can fall down at any moment and cause danger to human life. The judgments that have been relied upon by learned Counsel for the petitioner(tenant) pertain to those buildings where only the cracks are there which are minor in nature and same do not endanger the building itself. However, in the present case as stated earlier, there are not only cracks in the building but there are other instances of roof having fallen down, which creates enough evidence against the petitioned tenant) that the building is in a very poor condition and can fall down at any moment. 9. No other point was urged before me during the course of arguments. In view of the above, finding no merit in the present revision petition, the same is hereby.