Des Raj vs Promila Kumari

Rajendra Nath Mittal, J.—This revision petition has been filed by the tenant against the Judgment of the Appellate Authority, Kapurthala, dated 4th October, 1978.

Briefly, the facts are that Smt. Promila Kumari landlady filed a petition for ejectment u/s 13 of the East Punjab Urban Rent Restriction Act, inter alia on the ground that the shop in dispute had become unfit and unsafe for human habitation. The petition was contested by the tenant who controverted her allegations. The Rent Controller came to the conclusion that the shop had become unfit and unsafe for human habitation. Consequently he ordered ejectment of the tenant. In appeal by him, the finding of the Rent Controller was confirmed. The tenant has come up in revision to this Court.

The only question that arises for determination is whether the shop has become unfit and unsafe for human habitation. Both the authorities below have concurrently held that it was so.

At the time of motion hearing, the learned Judge directed the Rent Controller to inspect the shop and send his report. Mr. H. R. Nohria, Rent Controller, Kapurthala, in pursuance of the order of this Court after inspecting the shop sent his report dated 21st December, 1978. There are three rooms in the shop. The front room is being used as a shop and the other two rooms as godowns. The learned Rent Controller, in his report, gave descriptions of the walls, the roofs & the plaster in each of the rooms. He has stated that battens and girders have been used in the roofs of the rooms. Regarding the first room he has pointed out that there are small cracks of about one foot in length in three battens, that three battens were of different shape and seemed to have been replaced some time back and that mud plaster at some places was swollen and was likely to fall at any moment. Regarding the second room, he has pointed out the following cracks :--

(1) A crack of about 8 feet in length and 1/4" in width from the roof downwards in the left wall of the room and another crack of about 3 feet length near that crack in the same wall.

(2) A crack of about 8 feet in length and of hair breadth in the right wall.

(3) A crack of about 3 feet in length in the right wall near the back wall.

(4) A crack of hair breadth of about two feet in length in the back wall.

(5) A gap of about 11/2" in the joint of the walls from roof to the ground.

He further pointed out that 2/3 battens in the roof had developed cracks and one batten was lying broken. Some bricks of the ceiling were tilting.

Regarding the third, room, he stated that the mud plaster of all the walls of that room was absent completely. There was a gap of about in each of the joints of the walls from top to bottom. In addition, there were two cracks in the front wall. One of the wooden battens in the roof had a crack.

From the abovesaid report also it is evident that the shop is not fit for human habitation. Consequently, I affirm the finding of the Rent Controller.

Faced with this situation, Mr. Sarin sought to urge that there were tenants on the first floor and against them no application for ejectment had been filed. No such plea was taken in the written statement and no evidence was led in that regard by the tenant. He cannot be allowed to raise the point in revision petition in this Court. However, Mr. Sehgal, learned counsel for the respondent has filed an affidavit of Harpartap Rai Puri, that he had vacated the first floor. Consequently, I reject this submission of the learned counsel.

For the aforesaid reasons, there is no merit in the revision petition and the same is dismissed with costs. Counsel fee Rs. 250/-. However, the petitioner is granted three month''s time to vacate the shop subject to the payment/deposit with the Rent Controller of all arrears of rent, if any and future rent within three weeks. In case he fails to pay/deposit the rent as ordered above, he shall be liable to be ejected forthwith.