Amar Nath vs Kishan Kaur and another

J.V. Gupta, J.—This is tenant''s petition against whom the ejectment application was dismissed by the Rent Controller, but the eviction order was passed by the appellate Authority.

Kishan Kaur, the landlady, sought the ejectment of her two tenants, Amar Nath and Balwinder Singh, who were in occupation of the different portions of the same building. The ejectment was sought on the ground that the building has become unfit and unsafe for human habitation. Amar Nath, petitioner, was the tenant of the portion marked red in the site plan at a monthly rent of Rs. 26/-, whereas Balwinder Singh was the tenant on the portion shown as green in the site plan at the monthly rent of Rs. 45/-. Balwinder Singh was proceeded ex parte, and the application was contested by Amar Nath, tenant. He pleaded that he was tenant since the life time of Bhagat Singh, husband of the landlady, and he was not aware of the fact that Kishan Kaur was the sole owner. He denied that the shop had become unfit and unsafe for human habitation or is in dangerous condition.

The learned Rent Controller found that though the building as such had become unfit and unsafe human for habitation, but the portion in the occupation, of Amar Nath was quite safe and was fit for human habitation, and there was no likelihood of its becoming debris in near future and it could last for considerable long time. In view of this finding, the ejectment order against Balwinder Singh was passed, but no order of ejectment was passed against Amar Nath. Dissatisfied with the same, the landlady filed an appeal. The Appellate Authority himself inspected the building and recorded his inspection note, dated 23rd November, 1981, which reads as under :--

I inspected the spot in the presence of Shri Mansrover Kansal, counsel for the appellant and Shri J. K. Jauhar, counsel for the respondent. The building out of which the shop in dispute has been carved out, consists of a Verandah and two rooms. This is an old building. The roof of the back room was found to be in demolished condition. The back wall of the shop in dispute consists of partly of the wall and partly a portion of the arch. Some of bricks of the pillar were found to be missing forming a hole in the back wall of the shop in dispute. The probable reason for the falling off of the bricks could be the loss of cohension of the mud-plaster. On the north corner of that wall, I fouud that the bricks were getting loose. There were some minor superficial cracks in the northern wall.

After discussing the entire evidence along with the inspection note, the learned Authority came to the conclusion that it established that the roof of the back room had fallen down, and that if the landlady had to construct the back portion, she shall have to demolish and construct new one. If that wall is demolished, the roof of the front room cannot stand. Thus, the landlady as such cannot utilise the building nor can reconstruct the new building unless the portion in possession of Amar Nath tenant is also demolished. In view of this finding, it was held that since the portion inoccupation of Amar Nath is an integral part of the building which as such has become unfit and unsafe for human habitation, the tenant was liable to ejectment. Consequently, the ejectment order was passed Dissatisfied with the same, the tenant has filed this petition in this Court.

5 The learned counsel for the petitioner submitted that the appellate Authority has gone beyond the remand order of this Court in C. R. No. 1969 of 1980, decided on 21st May, 1981, between the parties reported in Amar Nath v. Kishan Kaur 1981 (2) R.L.R. 330. According to the learned counsel, the appellate Authority could only decide as to whether the portion in the occupation of the tenant, Amar Nath, had become unsafe and unfit for human habitation or not. The finding of the appellate Authority that since the other portion of the building of which the demised premises is an integral part, the whole building has become unfit and unsafe for human habitation, was not warranted. Thus, according to the learned counsel, the High Court order has not been followed by the appellate. Authority and the finding arrived at is vitiated It was also contended that even this Court could not take into consideration the condition of the entire building for holding that the demised portion has become unsafe and unfit for human habitation because earlier this Court in the said revision petition between the parties has observed:

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 portion in possession of Balwinder Singh and the landlady has become unsafe and unfit for human habitation, the premises in possession of the petitioner should also be assumed to be in same state of affairs and it must be held to be unsafe and unfit for human habitation. This inference is 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 preverse and cannot possibly be sustained.

In support of this contention, he referred, to Jasraj Inder Singh Vs. Hemraj Multanchand, Nain Singh Vs. Koonwarjee and Others, ; Krishnaswamy Reddiar Vs. Muthu Reddiar, and Scientific Instruments Co. Ltd. Vs. Collector of Customs (Valuation Section) and Another, . It was also contended that the finding of the appellate Authority was wrong and that the portion in the occupation of the tenant was not unfit for human habitation.

After hearing the learned counsel for the parties, I do not find any merit in this petition. In the earlier Civil Revision Petition, after making the said observations reproduced above, the Court directed while remanding the case that. "This, 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." After the said remand, the appellate Authority himself inspected the building on 23rd November, 1981. On the basis of inspection note and the other evidence on the record, a firm finding was given that the building was an old one, the back wall of the shop in dispute consist of partly of the wall and partly a portion of the arch. Some of the bricks of the pillar were found to be missing forming a hole in the back of the shop in dispute. On these premises and taking into consideration the position of the entire building, it was held that the same has become unfit and unsafe for human habitation. The contention that only the portion in occupation of the tenant was to be looked into and not the position of the entire building, has no force in view of the Division Bench judgment of this Court in Sardarni Sampuran Kaur and another v. Sant Singh (1983) 15 P.L.R. 449 wherein it has been held that if the substantial part of the integrated larger building has become unsafe and unfit for human habitation, the tenant can be ejected from the demised premises forming part thereof despite the fact that the particular portion in his occupation may not be so. The principle of resjudicata as such for which the judgments were cited, has absolutely no applicability to the proceedings under the East Punjab Urban Rent Restriction Act. Moreover, in the earlier order of remand by this Court, the Appellate Authority was allowed to call for any report or to allow the parties to lead any other evidence it so liked. Thus the Appellate Authority was not debarred to inspect the spot to find the condition of the building as such on facts as well, the question of res-judicata as contended by the learned counsel for the petitioner, does not arise.

Consequently, this petition fails and is dismissed with costs. However, the tenant is allowed two months'' time to vacate the promises provided all the arrears of rent, if any, and advance rent for two months are deposited with the Rent Controller, within three weeks, with an undertaking in writing that after the expiry of the said period. Vacant Possession will be handed over to the landlord.