Bhagat Ram vs Baij Nath

D.V. Sehgal, J.—This revision petition by the tenant-Petitioner is directed against the judgment dated Nov. 10, 1979 passed by the Id. Appellate Authority, Jalandhar, u/s 15(3) of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act''), whereby an order of ejectment from the shop in dispute passed against him by the Id. Rent Controller was affirmed and his appeal was dismissed.

The landlord-Respondent filed an application for ejectment of the Petitioner u/s 13 of the Act on the ground that the shop in dispute has become unsafe and unfit for human habitation. It is more than 100 years old. It is in a dilapidated condition. The roof of its back room has fallen and the other roof is in a dangerous condition and he intends to reconstruct the whole building after demolishing the same. It is necessary to mention that a few days prior to the aforesaid application the Petitioner filed an application u/s 12 of the Act praying for issuance of a direction to the Respondent to make necessary repairs and to replace the roof of the back room of the shop in dispute. Both these applications were tried to together by the Id. Rent Controller He reached at a finding that the building of which the shop in dispute is a part is an old structure which is dilapidated. A part of the shop in dispute has become unsafe and unfit for human habitation and, therefore, accepted the application of the Respondent, ordered the ejectment of the Petitioner and dismissed the application of the Petitioner u/s 12 of the Act vide his judgment dated Nov. 20, 1978. An appeal filed by the Petitioner was dismissed by the Id. Appellate Authority vide judgment under revision. This is how the Petitioner has approached this Court.

I have heard the ld. Counsel for the parties and have also gone through the pleadings and the evidence on the record of the Rent Controller The ld. Counsel for the Petitioner relying on a S.B. judgment of the Karnataka High Court in Khajabi and Ors. v. Muruja Saheb 1985 (1) R.C.R. 664, contended that it; is the duty of the landlord to keep the building in a reasonably good repair and if the landlord fails in his duty the tenant has a right to make the repairs and deduct the cost of such repairs from the rent. Where the roof of the building has decayed and it requires replacement the landlord should replace the same as it comes within the meaning of the word "repair". She further submits that the Petitioner had filed application u/s 12 of the Act prior in time. The subsequent application u/s 13 of the Act filed by the Respondent was merely a counter blast. I, however, find no force in this submission. A DB of this Court in Balbir Singh Vs. Hari Ram, , by reference to the provisions of Sections 12 and 13(3)(c), which are pari materia with the provisions of the Act, held that a decision u/s 13(3)(c) will be binding on the parties, as it will finally determine the question of eviction. If the landlord fails he pay not legitimately be able to obstruct the proceedings u/s 12 for permission for repairs claimed on behalf of the tenant. If the tenant fails to resist the eviction under this provision, then he has no case for repairs u/s 12 cannot be invoked by him. It is, therefore, not correct to say that any order u/s 12 of the Act has an over-riding effect over the orders u/s 13(3)(c). The building, if becomes once unsafe or unfit for human habitation, it confers a right pn the landlord for eviction of the tenant and that right cannot be defeated by the tenant on his own, or by his seeking an order u/s 12 even if the landlord, has not come earlier to the Court seeking eviction u/s 3. In view of this binding precedent of the DB, I find no force in the contention raised by the Id. counsel for the Petitioner.

Now coming to the merits of the case, it has been concurrently found by the authorities below that the shop in dispute has become unfit and unsafe for human habitation. The first room of the shop is being used by the Petitioner for milk vending business. A Local Commissioner was appointed who reported that this room is in safe condition. On an inspection of the second room, which is a part of the tenancy, he reported that its roof was unsafe and in a dilapidated condition, At the top of this room there were two big poles. In addition there were cracks in the roof and one of them was major There were other cracks also. Four wooden rafters had cracked and they were supported by other wooden rafters. There were three other rafters which were unsafe and cracked. The wooden planks were broken and cracked. The roof could collapse at any time. In this room, support of small bricks given to the roof was not sufficient, and even the iron girder was of no help. The walls of this room on the West and North sides are cement plastered. These are old and built of old type material, i,e, small bricks and mud. On the eastern side of this room there was a pucca arch which serves as partition between this room and the adjoining shop, The northern wall is made of Nanakshahi bricks and mud plaster. The wall has dampness and the mud plaster has fallen at 3/4 places. The Local Commissioner also pointed out that the contiguous part of the building of which the shop is a part but which is not under the tenancy of the Petitioner is also in a dilapidated condition. There are some wooden rafters which have been placed for giving support to other rafters which have given way. There are major holes in this roof. Even the Petitioner admitted that wooden pillar had been fixed to support the roof of the back room as some ballas had given way. He admitted that the roof of the adjoining room on the back of the shop has fallen.

It is by now well settled that where a part of the premises in dispute has become unsafe and unfit for human habitation, the mere fact that extensive repairs can make the same fit would not stand in the way of the landlord in getting the ejectment of the tenant. The present is a clear case where the premises have become unsafe and unfit for human habitation. The bigger building owned by the Respondent of which the shop is an integral part, according to the evidence on the record, is old and dilapidated. Its age is more than 100 years. The entire building is made of Nanakshahi bricks. It requires to be demolished and rebuilt right from its foundations. It has been held by a DB of this Court in Sampran Kaur and Another Vs. Sant Singh and Another, , that where a substantial part of the building of which the demised premises is a part become unfit and unsafe for human habitation, the landlord has a right to seek eviction of the tenant from such demised premises to enable him to demolish the entire building and re-construct the same. The ratio of Sampuran Kaur''s case (supra) full applies to the facts of the case in hand. I, therefore, affirm the finding recorded by the authorities below to the effect that the shop in dispute has become unsafe and unfit for human habitation. Consequently, there was no occasion for allowing the application of the Petitioner u/s 12 of the Act for carrying out repairs to the shop in dispute and for replacement of its roof.

As a result of the above discussion, I find no force in this revision petition which is hereby dismissed leaving the parties to bear their own costs.

At the request of the ld. Counsel for the Petitioner, three months'' time is allowed to the Petitioner to vacate the premises in dispute on the condition that he deposits the entire amount of arrears of rent alongwith future rent for three months within one month from today in the Court of the Rent Controller for payment to the landlord-Respondent. On his failure to do so, the Respondent shall be entitled to take out execution and take possession of the demised premises forthwith.