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2023 DIGILAW 1654 (PNJ)

Savita Rani v. Sanjay Gupta

2023-05-05

RAJBIR SEHRAWAT

body2023
JUDGMENT Rajbir Sehrawat, J. (Oral) CM-8141-CII-2023 This is an application filed by the respondent under Order 41, Rule 27 CPC read with section 151 CPC for placing on record additional documents. No ground is made out to place on record the additional documents. Accordingly, the application stands dismissed. CR No.2483 of 2016 The petitioner has filed this petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, praying for setting aside the order dated 20.01.2016 passed by the Appellate Authority, Ambala vide which the order dated 14.07.2015 passed by the Rent Controller, Ambala, evicting the respondent from demised premises, was set aside, with a further prayer for upholding the order dated 14.07.2015 passed by the Rent Controller, Ambala; along with certain other prayers. 2. The brief facts, giving rise to the present petition are that the petitioner had filed eviction petition Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973; against the respondent regarding the property bearing house tax No.3636, Timber Market, Ambala Cantonment. It was stated that earlier Smt. Indro Wati, widow of Madan Mohan was the owner of said property. After her death the petitioner being widow of predeceased son and also by virtue of the last Will dated 22.11.2002 became the owner of the premises. The respondent had taken a portion of the said property, i.e., two rooms on monthly rent of ^5,000/- per month for a period of 11 months in the year 2002. However, in the year 2009 the respondent-tenant stopped paying the rent and the rent for the period from 01.04.2009 to 31.03.2012 became outstanding. Still further the tenanted premises had become unfit and unsafe for human habitation and was in dilapidated condition being a construction of more than about 100 years old. Asserting these facts, the eviction petition was filed against the respondent-tenant. The parties led their respective evidence, including examining the experts along with their reports. During the pendency of the petition the assessed rent was paid by the respondent. Therefore, the said ground was not retained as a ground for eviction of the respondent. However, vide order dated 14.07.2015 the Rent Controller ordered eviction of the respondent on the ground of the building in question having become unfit and unsafe for human habitation. 3. Challenging the said order respondent-tenant had filed appeal before the appellate authority. Therefore, the said ground was not retained as a ground for eviction of the respondent. However, vide order dated 14.07.2015 the Rent Controller ordered eviction of the respondent on the ground of the building in question having become unfit and unsafe for human habitation. 3. Challenging the said order respondent-tenant had filed appeal before the appellate authority. The said appeal has been accepted and the order of eviction, passed by the Rent Controller, has been set aside vide order dated 20.01.2016. It is challenging the said order passed by the appellate authority that the revision petition has been filed by the petitioner-landlord. 4. Arguing the case learned counsel for the petitioner has submitted that the findings recorded by the lower appellate authority are perverse. Evidence led by the petitioner has been totally ignored. It had come in the report of the expert examined by the petitioner that there were cracks measuring 3 to 5 inches in width. Despite that the lower appellate court has recorded that there are no cracks in the building. It is further submitted that the lower appellate court has gone wrong in law in recording factually incorrect findings that no photographs were taken by the expert of the petitioner from inside the building. In fact, there are as many as three photographs taken from inside and all those photographs show either the crack or the repair made by respondent to conceal the cracks. Beyond that the photographs could not be taken because the respondent-tenant had not permitted to take the photographs; firstly, by not opening the shop and secondly; because of the reason that wooden logs were made to stand alongside the walls to hide the same. Therefore, the conclusion arrived at by the lower appellate court in this regard are baseless, as well as, against the material on record. The counsel for the petitioner has further submitted that this court has held in judgment rendered in the case of Sardarni Sampuran Kaur and another v. Sant Singh and another, 1982 RCR (Rent) 413 that if the substantial part of the building is damaged or unsafe for human habitation, then also the eviction has to be ordered irrespective of the degree of damage to the specific portion of the building. The counsel has further submitted that the Statute uses the words 'unfit' or 'unsafe' for human habitation. These two terms are joined by the conjunction 'or'. The counsel has further submitted that the Statute uses the words 'unfit' or 'unsafe' for human habitation. These two terms are joined by the conjunction 'or'. Therefore, even though the building may not be unsafe for human habitation, but otherwise if it is unfit then also the eviction has to be ordered by the Rent Controller. The counsel has also relied upon the judgment rendered by this Court in the case of Dr. Piara Lai Kapur v. Kaushalya Devi & another, (1971) ILR 2 P& H, 552 to buttress his arguments. The counsel has further submitted that although the court below has laid much emphasis on the report submitted by the expert examined by the respondent-tenant, however, the said expert has not even taken photographs from inside the shop in question. Therefore, his report cannot be relied upon to come to the conclusion whether the building, as such, is unfit or not. So far as the first floor of the same building is concerned even the expert examined by the respondent has reported that the said portion is in shabby condition with broken plasters and dampness. In the end the counsel for the petitioner has submitted that when the respondent-tenant had not permitted the expert of the petitioner to take much photographs from inside then the first floor of the said building, which was in possession of the petitioner herself and was inspected and it was found that the first floor of the said building was having large scale damage and cracks. Therefore, the building was substantially unfit for any use or unsafe for human habitation. The Rent Controller had rightly ordered the eviction. Therefore, the order passed by the lower appellate court deserves to be reversed. 5. On the other hand, the counsel for the respondent has submitted that the lower appellate court has rightly reversed the order passed by the Rent Controller. The expert examined by the respondent has categorically reported that there was no significant damage to the building, as such. The cracks though appeared on the surface, however, the same were not through-and-through the wall. The counsel has further submitted that the shop in question is portion of the building having four separate property numbers, therefore, if other portions of the said building are not unfit or unsafe for human habitation, then this portion cannot be said to be unfit per se. The counsel has further submitted that the shop in question is portion of the building having four separate property numbers, therefore, if other portions of the said building are not unfit or unsafe for human habitation, then this portion cannot be said to be unfit per se. Moreover, even the expert examined by the petitioner landlord has admitted that the building is having thick walls of 18 inches and that there are no cracks at the plinth level of the wall. Since the walls of the building are having sufficient strength to bear the load of the building, therefore, the same cannot be said to be unsafe or unfit for human habitation. So far as the malba at the first floor is concerned, that is because of the fact that the petitioner-landlord herself has got demolished the portion of the property. Regarding the said fact the parties are even in litigation in the suit filed by the respondent for restraining the petitioner from demolishing the building. The counsel has also submitted that minor repairs, if any, would not lead to the conclusion that the building is unsafe for human habitation or it is unfit as such. 6. Having heard the counsel for the parties and having perused the case file this court finds substance in the arguments raised by counsel for the petitioner. The facts regarding tenancy are not even in dispute. The ground of non-payment of rent as a ground of eviction, undisputedly ceased to exist. The parties are in contest only on the ground of the building being unfit and unsafe for human habitation. To prove his case the petitioner has got the report of Structural Engineer, who has taken the photographs and has given the detailed report explaining the damage to the building. The photographs placed on record clearly show that there are wide cracks on the arch of the main gate itself. These cracks are visible with the bare eyes on the outer side. So far as the inner side is concerned, the photographs show that an attempt to fill up the said cracks and to paint the same has been made. The said attempt to repair the cracks is also visible with the bare eyes. These cracks are visible with the bare eyes on the outer side. So far as the inner side is concerned, the photographs show that an attempt to fill up the said cracks and to paint the same has been made. The said attempt to repair the cracks is also visible with the bare eyes. So far as the report of the expert examined by the respondent-tenant to the effect that the cracks are only superficial, is concerned, there is no material to suggest the same. No reason has been disclosed by the expert examined by the respondent to base his conclusion that the cracks in the wall are not through-and-through. The expert does not claim to have scanned the wall with any technology. Moreover, in the cross-examination he has not even denied the fact that he had not even taken the photographs from inside, except one photograph of one wall of the shop. This avoidance on the part of the expert, who was supposed to be neutral, itself shows that he cannot be relied upon so far as the aspect of structural strength of the building is concerned. On the contrary; the photographs taken by the expert examined by the petitioner show that there are extensive cracks in different walls. The expert has also exposed the attempt of the respondent-tenant to create an illusion of fitness by concealing the repairs by using the distress painting material. From the bare eyes as well; attempt to paint the roof or the roof material, as pointed out by the expert examined by the petitioner, is visible. Strips of the dropping paint or the paint like retro-material are visible on the walls at the places where the expert of the petitioner has reported as the repairs having been done by the respondents. 7. Otherwise also the condition of the first floor of the building is very much relevant to assess the condition on the ground floor. Effect of the unfitness of building would be seen in more pronounced scale at the highest portion of the building. First floor of the building shows that there are cracks in all the walls. The cracks on the first floor would not be possible unless there is damage at the ground floor or the foundation as well. Effect of the unfitness of building would be seen in more pronounced scale at the highest portion of the building. First floor of the building shows that there are cracks in all the walls. The cracks on the first floor would not be possible unless there is damage at the ground floor or the foundation as well. The material of walls on the first floor would be moving only in case the ground floor material of the walls or the foundation has given way. To the same effect is the report of the expert examined by the petitioner as well. Seeing the condition of first floor as well, it can be safely said that the building is substantially damaged. 8. So far as the argument of the counsel for the respondent that the expert of the petitioner has also deposed as to the wall of this building being 18 inches wide and being strong, is concerned, that cannot be taken at any extra value for the simple reason that once the cracks are there; even the 18 inches wall is bound to give way. Moreover, once the arch of the building which supports the load of the building over it in the area of the main gate bears the cracks, then nothing can be sure as to for how long the building will survive. The building, in any case, is rendered unsafe for human habitation besides being unfit. Even the bare perusal of the photographs of the building, taken from outside and inside, makes it clear that this building gives an impression of abandoned building and it has outlived its life and utility. The photographs of the building are clear testimony to this fact. 9. Qua the litigation between the parties regarding stay against the petitioner it deserves to be noticed that all those litigations are based upon presumption that the building is fit for habitation and that the respondent is occupying the same as tenant. Once the tenancy was continuing the petitioner could seek any injunction against the petitioner. However, once the strength of the building shows its unfitness then the very basis of the said litigation and the injunction against the petitioner is rendered otiose. 10. In view of the above, the findings recorded by the court below are held to be perverse and without any basis. The same are set aside. However, once the strength of the building shows its unfitness then the very basis of the said litigation and the injunction against the petitioner is rendered otiose. 10. In view of the above, the findings recorded by the court below are held to be perverse and without any basis. The same are set aside. The findings recorded by and the order passed by the Rent Controller is restored. 11. Since the order of eviction passed by the Rent Controller has been upheld, therefore, the respondents have become liable to vacate the demised premises with immediate effect. However, to grant reasonable time to the respondent to vacate the premises in question, it is ordered that respondent shall vacate the demised premises within a period of one month from today. Accordingly, the respondent is directed to vacate the premises on or before 05.06.2023. If the premises is not vacated on or before 05.06.2023 then the petitioner shall be entitled to take possession of the said premises with the police help without requiring any further orders from any court. It is further ordered that if any item/article(s) are found lying in the premises in question on or after 06.06.2023; the same shall be deemed to have been forfeited in favour of the petitioner-landlord and she shall be entitled to appropriate the same as her own property.