Amar Nath Alias Mothu vs Kishen Kaur and another

I.S. Tiwana, J.—This revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) is directed against an order of the Appellate Authority dated 19th of July, 1980, whereby the eviction of the petitioner-tenant has been ordered on the ground that the demised premises in his possession has become unsafe and unfit for human habitation.

Briefly, are the facts leading to the passing of the impugned order as follows.

Kishan Kaur (landlady) respondent filed an application u/s 13 of the Act, against the petitioner and Balwinder Singh her son with the allegations that two portions rented to them separately had become unsafe and unfit for human habitation and the tenants had not paid the rent due to her. Balwinder Singh did not put in appearance in spite of service and thus was proceeded ex-parte. After recording the evidence on behalf of the parties, the Rent Controller ordered the eviction of Balwandir Singh from the portion in his possession and dismissed the application of the land-lady qua the petitioner It may be mentioned here that on the first day of hearing the petitioner had tendered the arrears of rent due from him and thus, this ground of eviction pleaded against him became non-existent. With regard to the other issue, the Rent Controller recorded a finding that the building in pos session of the petitioner had not become unsafe and unfit for human habitation.

This order of the Rent Controller dated 12th October 1978 was successfully assailed by the land-lady before the Appellate Authority. The Appellate Authority, vide its order dated 24th September, 1979 set aside the finding recorded by the Rent Controller and remanded the case back for decision afresh after inspecting the spot and affording an opportunity to the parties to lead additional evidence. This order of remand passed by the Appellate Authority was challenged by the petitioner in Civil Revision No. 2603 of 1979 in this Court, and the same was allowed by me on 18th December, 1979 in view of the Division Bench decision of this Court Damodar and others v. Hari Singh anothers (1979) 81 P.L.R. 370, holding that the Appellate Authority had no jurisdiction to remand the entire case to the Rent Controller for decision afresh. By the time this order was passed by me on 18th December 1970 the Rent Controller, Shri A.S. Sodhi, bad on 2nd November 1979 inspected the spot and recorded an inspection note. None of the parties led any additional evidence in support of their respective claims. Before the Rent Controller could dispose of the case on merits in pursuance of the remand order passed by the Appellate Authority on 24th September, 1979 the said remand order was itself set aside by this Court. In the light of the order of this Court dated 18th December 1979, the Rent Controller sent back the file to the Appellate Authority along with his inspection note. The Appellate Authority after considering the merits of the case in the light of the inspection note recorded by Shri A.S. Sodhi Rent Controller, on 2nd November 1979, passed the impugned order.

Mr. Goel, Learned Counsel for the petitioner vehemently urges that the order of the Appellate Authority is patently illegal and erroneous in view of the fact that the said authority has drawn some inferences and assumptions from the evidence on record which aye unsustainable in law and has also based its conclusion primarily on the inspection note recorded by Shri A.S. Sodhi, Rent Controller, on 21st November 1979, which evidence has to be taken as non-est or nonexistent in view of the order of this Court dated 18th December, 1979. In short, the submission is that once the remand order passed by the Appellate Authority had been quashed, any thing done or the evidence recorded in pursuance of that remand order has to be ignored and cannot be taken notice of. To me, the submission of the Learned Counsel, appears to be full of merit. It is patent from a reading of the order of the Appellate Authority that while preferring the evidence led on behalf of the respondent land-lady in support of her claim that the demised premises had become unsafe and unfit for human habitation, the said Authority has placed primarily reliance on the inspection note recorded by Shri A.S. Sodhi. It is in the light of this note that the evidence of the petitioner has been criticised and discarded. Besides this, it is also well-established that the Appellate Authority has drawn a patently erroneous assumption or inference from the fact that since the portions in possession of Balwinder Singh and the land lady had become unsafe and unfit for human habitation, the premises in possession of the petitioner should also be assumed to be in the same state of affairs and it must be held to be unsafe and unfit for human habitation. This inference drawn by the Appellate Authority is wholly unfounded and without any basis. For these reasons the findings recorded by the Appellate Court, to my mind, becomes perverse and cannot possibly be sustained.

The Learned Counsel for the respondent however, urges that besides the note of the Rent Controller, Shri A.S. Sodhi, there is yet enough of evidence on record on the basis of which findings recorded by the Appellate Authority can be sustained. The Learned Counsel further urges that since Mr. A.S. Sodhi had visited the spot in the presence of the counsel for the parties, who failed to raise any objection at that time, the inspection note recorded by him should not be ignored and rather should be treated as part of the evidence. The last submission made by the Learned Counsel cannot possibly be accented for the reason as already indicated that once a remand order has been set aside that anything done in pursuance thereof has to be ignored and taken as non-est Again, as already indicated, the entire evidence of the petitioner has been judged and weighed by the Appellate Authority in the light of the inspection note recorded by the Rent Controller, which note has to be ruled out of consideration.

For the reasons recorded above, the impugned order of the Appellate Authority is set aside, as a necessary consequence of the above discussion, the case has to he sent back for decision afresh in the light of observations made in this order and in accordance with law. This is, however, made clear that the observations made in this order would, not in any way restrict the jurisdiction of the Appellate Authority to call for any report or allow the parties to lead any other evidence, if it so likes. The said Authority is also directed to dispose of the matter within three months from the date of the receipt of the records. The parties through their counsel are directed to appear before the Appellate Authority on 20th July, 1981. The office is directed to send the records immediately.