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2019 DIGILAW 133 (HP)

Dayawant Singh v. Ram Murti Aggarwal

2019-01-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. This review petition is directed against the judgment dated 2/5.11.2018 passed in Civil Revision No. 83 of 2010, whereby the petition has been disposed of with the following observations: "14. AW-2 the landlord and AW-3 Nika Ram have also admitted that they have not received any notice from Municipal Corporation, Shimla qua the building being unsafe or unfit for human habitation. As per their version, the building rather is joint property of all the owners being not partitioned amongst the owners who are 3-4 in number. 15. There is also no cogent and reliable evidence to show as to what is the exact age of the building. While in the petition, its age is given as 100 years, according to respondent-tenant its age is 60-65 years. The suggestion in this behalf put to AW-2 and AW-3 is denied by them being wrong. The fact remains that what is the exact age of the building 'C_hor_View' is not proved satisfactorily on record. It is not the case of the respondent-landlord that he himself constructed this building. Therefore, how he could have given the age of the building as 100 years is not understandable. The spot inspection report Ext. PW-4/A having been prepared on the basis of inspection conducted behind the back of the petitioner-tenant cannot be believed to be true. Otherwise also, such self-styled reports are being produced in evidence by the landlords in the cases of this nature. The evidence as has come on record by way of statement of petitioner-tenant Satpal and also that of RW-2 Suresh Kumar and RW-3 Bhupinder Singh that without getting the whole building vacated, its repair is not possible, is nearer to the factual position. They, however, have no objection in case the landlord reconstructs their portion of building by maintaining a gap between the wall of their side by raising construction of new wall. The further observations in the impugned order that obtaining the consent of other co-owners is a matter between them and the landlord, lead to the only conclusion that the judgment passed is not executable." 2. The further observations in the impugned order that obtaining the consent of other co-owners is a matter between them and the landlord, lead to the only conclusion that the judgment passed is not executable." 2. Now, the respondent-landlord has filed this review petition for review of the judgment ibid on the grounds inter-alia that while deciding the review petition and giving findings on the issue of demolition/reconstruction of common wall, this Court has relied upon the judgment dated 26.7.2018 (wrongly mentioned as 5.11.2018), which law allegedly has become res-integra on the basis of the judgment delivered by the Hon'ble Apex Court in 2002, Jagat Pal Dhawan v. Kahan Singh, 2002 (2) RCR 613 and Inder Pal Thakur v. Hukam Chand and others, 1997 SLC(3). Also that the age of the petitioner himself is 89 years and as such, the age of the building is 100 years. It has also been urged that a petition for ejectment of the tenant cannot be thrown merely on the ground that the landlord has no sanctioned plan. He has, therefore, sought the review of the judgment on this score alone. 3. In the considered opinion of this Court, the ground as taken by the review-petitioner for review of the aforesaid judgment is not tenable for the reason that neither there is any mistake apparent on the face of the record nor the same disclose sufficient reason so as to take in its sweep, a ground analogous to those specified in the statutory provisions. There is no material error, manifest on the face of the order, undermining its soundness or resulting into miscarriage of justice. Review is not an appeal in disguise entitling the party to be reheard, simply because the party wants a decision to be otherwise. The law laid down by the Apex Court in Jagat Paul Dhawan and Inder Pal Thakur's cases supra is not at all attracted in the given facts and circumstances of the case, where the question is not that of the consent of owners of the adjoining buildings and rather co-owners in the same building which has been sought to be demolished for re-building and construction. Besides, a portion of the building is occupied even by the tenants also. Besides, a portion of the building is occupied even by the tenants also. The review petitioner has failed to satisfy as to how a building having internally common walls providing support to the structures within it can be demolished without causing harm or damage thereto. 4. In view of the above, review petition is dismissed. Pending applications, if any, shall also stand disposed of.