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2016 DIGILAW 1492 (HP)

Baldev Dutt v. Rajesh Sharma

2016-07-27

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary. The petitioner aggrieved by the judgment dated 16.5.2011, passed by learned Appellate Authority (III), Shimla in Rent Appeal No. 8-S/13(b) of 2009, has preferred this petition, with a prayer to quash and set aside the same. It is seen that vide impugned judgment learned Appellate Authority has dismissed the appeal and affirmed the order of eviction of the respondent-tenant passed by learned Rent Controller (III), Shimla in Rent Case No.1/2 of 2002. 2. The eviction of the respondent-tenant from the demised premises i.e. upper storey, Puran Cottage, Lower Lakkar Bazaar, Shimla, was sought on the ground that the same being more than 100 years old and having outlived its life is in dilapidated condition, hence required for rebuilding and reconstruction. 3. The petition was resisted and contested by the petitioner on the grounds, inter alia, that the building is in good and habitable condition, hence neither unfit nor unsafe for human habitation. The landlord himself was in possession of upper two storeys of the building. He had carried major repairs of the building. Therefore, the contention to the contrary that the demised premises have become unsafe and unfit for human habitation was denied being wrong. 4. On the pleadings of the parties, following issues were framed: 1. Whether the premises under the occupation of the respondent has become unsafe and unfit for human habitation? OPP 2. Whether the premises in occupation are bonafide required by the petitioner? OPP 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the petitioner is estopped to file the present petition by his own acts, deeds, conduct, lapses, admissions, acquiescence and omissions? OPR. 5. Whether the petition lacks of material and better particulars? OPR. 6. Relief. 5. Learned Rent Controller, on appreciation of the evidence produced by the parties on both sides, has arrived at a conclusion that the demised premises being old and in dilapidated condition were unsafe and unfit for human habitation and as such required to be vacated for the purpose of reconstruction and rebuilding. Issues No.1 and 2, as such, were answered in favour of the petitioner-landlord. The remaining issues qua maintainability, estoppel and the petition lacks in material and better particulars, however, were answered against the respondent-tenant. 6. Issues No.1 and 2, as such, were answered in favour of the petitioner-landlord. The remaining issues qua maintainability, estoppel and the petition lacks in material and better particulars, however, were answered against the respondent-tenant. 6. Learned Appellate Authority has dismissed the appeal preferred by the respondent-tenant and affirmed the order of eviction passed by learned Rent controller vide judgment under challenge before this Court in the present appeal. 7. The legality and validity of the impugned order has been questioned on the grounds, inter alia, that cogent and reliable evidence to show that the building is old and has outlived its life, hence not fit for human habitation, has not been produced by the petitioner-landlord. The evidence as has come on record has allegedly been misread and misconstrued and the findings qua eviction of the respondent-tenant from the demised premises have been based on surmises and conjectures. 8. Having gone through the record and on analyzing the rival submissions, it is proved from the testimony of PW-2 Vivek Karol, who is a Civil Engineer, hence an expert witness, that by appearance the building looks to be more than 100 years old having the walls of plumbs. He has also noticed cracks both vertically and horizontally throughout the building at the time of its inspection. The wooden planks used for flooring of rooms were also found to be rotten. As per his report Ext.PW2/A, the building was required to be reconstructed after laying down new foundations. In cross-examination conducted on behalf of the respondent-tenant, nothing material lending support to his case could be elicited. The suggestion that the reconstruction can be done even without demolition of the demised premises was, however, denied being wrong. 9. Petitioner-landlord has himself stepped into the witness box as PW-3 and has deposed what he averred in the petition. His testimony also substantiates the dilapidated condition of the demised premises. PW-1 Vivek Gupta is an Architect. He has proved the copy of Plan Ext.PW1/A of the proposed construction. According to him, the reconstruction has been planned on old lines. The plan, as per version of this witness, was submitted for sanction to Municipal Corporation. 10. No doubt, the respondent-tenant while in the witness box as RW1 has stated that the demised premises are in good condition and fit for human habitation. According to him, the reconstruction has been planned on old lines. The plan, as per version of this witness, was submitted for sanction to Municipal Corporation. 10. No doubt, the respondent-tenant while in the witness box as RW1 has stated that the demised premises are in good condition and fit for human habitation. He, however, is not an expert witness, hence his testimony to this effect cannot be taken to belie the evidence as has come on record by way of the testimony of expert witness PW-2 Vivek Karol. RW-2 Sandeep Kumar admits that the building in question is built of Dhaji walls. However, he expressed his inability to tell that its age is 100 years. He admits that in case the building has to be reconstructed, the same is required to be vacated as a whole. He also admits that photographs Ext.P-10 to P-15 are of the building in question, which according to them, is tilted in one side. 11. If coming to the statement of RW-3 Rajesh Kumar, he tells us that age of the building is 100 years. His testimony that the same is in good condition cannot also be believed to be correct. RW-4 L.P. Gupta, an expert witness, examined by the respondent-tenant though tells us that the building is in good condition, hence worth living, however, in the same breath he has also not ruled out the requirement of its repair, which, however, according to him, can be done without disturbing the possession of the respondent-tenant. This witness, however, seems to have not deposed the actual and factual position on the spot, as is apparent from his cross-examination, because in reply to most of the questions put to him, he expressed his ignorance. Above all, he also admits the age of the building as 70/80 years old. 12. In the nature of the evidence produced by the parties on both sides, it cannot be said that both the Courts below have misread or misconstrued the same, because the evidence produced on both sides, reveal that the age of the building is 100 years and the same is built of Dhaji walls. Therefore, it can reasonably be believed that such an old building being in dilapidated condition is not fit for human habitation. Therefore, it can reasonably be believed that such an old building being in dilapidated condition is not fit for human habitation. Both Courts below have, therefore, not committed any illegality or irregularity in evicting the respondent-tenant from the demised premises on the ground that the same are bonafide required by the petitioner-landlord for reconstruction. 13. With the change in law, i.e. amendment in H.P. Rent Control Act, which extends a right in favour of the tenant qua re-entry in area equal in size in his possession in the old building on its reconstruction, the order of eviction of the respondent-tenant cannot be said to have caused any prejudice to him. Rather, he should have handed over the vacant possession of the demised premises to the petitioner-landlord for rebuilding and reconstruction of the building in question, reserving his right of re-entry on reconstruction thereof. The reply to the application registered as CMP No.1072 of 2011 filed on behalf of the petitioner-landlord reveals that the Municipal Corporation has sanctioned the plan qua reconstruction of the demised premises. The sanction order Ext.R-2 has also been annexed to the reply which reveals that the plan has been sanctioned on 15.1.2011. Had the possession of the demised premises been delivered by the respondent-tenant to the petitioner-landlord, its reconstruction would have been complete by this time. The revision petition, therefore, being devoid of any merit is dismissed. 14. It is expected from the respondent-tenant now to hand over the vacant possession of the demised premises to the petitioner-landlord at the earliest, enabling him thereby to complete the reconstruction thereof at an early date. In that event, the respondent-tenant shall have a right of his re-entry in the area which is in his possession, of course on the terms and conditions to be agreed upon on the completion of the construction and before his re-entry as tenant. I am drawing support in this regard from an order of the Apex Court in Special Leave to Appeal (C) No.5832 of 2014, titled Deepak Boot House and another Vs. Piare Lal Sood, decided 9.2.2015 which reads as follows: “We are not inclined to interfere with the order passed by the High Court. I am drawing support in this regard from an order of the Apex Court in Special Leave to Appeal (C) No.5832 of 2014, titled Deepak Boot House and another Vs. Piare Lal Sood, decided 9.2.2015 which reads as follows: “We are not inclined to interfere with the order passed by the High Court. However, we only want to keep it on record that the agreement, so to be entered into between the parties, after the construction is done by the landlord, the tenants will have the option of reentry on the new terms and tenancy on the basis of the mutual agreement which should be reasonable to both the parties. The special leave petition is disposed of accordingly.” 15. In view of what has been said hereinabove, this revision fails and the same is dismissed.