Gurdip Singh vs Firm Gopi Chand Prem Kumar

Ashok Bhan, J.—Aggrieved against the ejectment order passed by the authorities under, the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), petitioner-tenant (hereinafter referred to as the tenant) has filed this revision petition. The facts giving rise to this petition are :-

Firm Gopi Chand Prem Kumar alleging itself to be a Hindu Joint Family through its Karta Prem-Kumar landlord-respondent (hereinafter referred to as the landlord filed) ejectment petition seeking eviction of the tenant from a shop shown red in the site plan (Ex.A7) situated within the urban area of Moga on the grounds:

i) Arrears of rent from March 1985 till the filing of the petition; and

ii) that the demised shop being very old, its roof required replacement and was thus unfit and unsafe for human habitation.

In response to the notice issued, tenant entered appearance and tendered on the. first date of hearing Rs. 315/- as rent at the rate of Rs. 45/- per month from March 1985 to September 30; 1985, Rs. 10/- as interest and Rs. 25/- as costs but asserted that he had already paid rent upto June 30, 1985 and reserved his right regarding payment of rent prior to June 1985. Landlord accepted the amount of tender and stated that the rent from March 1, 1985 to June 30,985, was demanded in the ejectment petition through inadvertence and the same be adjusted in the future rent. The ground for ejectment, on the basis of arrears of rent has thus become redundant. The only ground which survives for consideration is as to whether the demised premises has become unfit and unsafe for human habitation. Landlord in his ejectment petition made the following assertions:-

"(b) That the demised shop is very old built and its roof required replacement and was thus unfit and unsafe for human habitation. It could fall at any time and cause loss to human life and property but the respondent began to effect material alterations therein without the consent of the applicant who filed a suit for permanent injunction restraining the respondent from making material alteration in the shop. The Court of Shri H.R. Kaushik the then, Sub Judge 1st Class, Moga issued temporary injunction under Order XXXIX Rules 1 and 2 C.P.C. restraining . the respondent from effecting any alteration in the shop in dispute and appointed Shri Raj Kumar Goel, Advocate a local Commissioner to visit the shop and report. The local commissioner submitted his report which clearly shows that the respondent had effected heavy material alterations in the shop in dispute without any right. He replaced the roof and put four girders."

Tenant filed the written reply to this assertion and denied its correctness. According to him, the roof of the shop did not require replacement nor he had replaced the same. He denied that the property in dispute was unfit and unsafe for human habitation. It was admitted by him that the landlord had filed a suit for permanent injunction but the report of the Local Commissioner was not factually correct.

Landlord put in replication in which the allegations as contained in the written reply were controverted and the averments made in the eviction petition re-asserted.

On the pleadings of the parties, the following issues were framed by the Rent Controller:-

Whether the respondent is liable to be ejected from the shop in dispute on the grounds as alleged in para No.3 of the application? OPA

Whether the petition as framed is not maintainable? OPR

Whether the applicant has no locus standi to file the present petition? OPP

Relief.

Rent Controller decided all the issues in favour of the landlord. Ejectment petition succeeded and the tenant was directed to put the landlord in possession of the demised shop within one month from the passing of the order.

Tenant filed an appeal which was also rejected by the Appellate Authority. It was noticed by the Appellate Authority that the landlord filed a suit for permanent injunction on 5.6.1985 restraining the tenant from making any material alterations in the shop. Temporary injunction under order 39 Rules 1 and 2 C.P.C. restraining the tenant from effecting any alterations in the shop was granted on the same date. Trial Court had appointed one Shri Raj Kumar Advocate, as Local Commissioner. Raj Kumar Goel (AW2) visited the shop on 6th and 7th June, 1985 and found that the shop was closed and made his reports Exs. A2 and A3. On 9.6.1985 when the Local Commissioner went to the shop, the same was again closed. On his asking, the shop was opened and after the inspection, he made his report Ex. A1. Ex. A4 is also his report. As per report Ex. A1 the landlord had carried out the repairs of the roof and had also placed four iron girders; that the whole repair in the shop was fresh. In the ultimate, it was concluded that the condition of the shop at the time of inspection was good except the roof at entrance where there was a breakable line from one side to the end. Appellate Authority held that tenant could not be permitted to take advantage of his own wrong and aggressiveness as he had repaired the shop in spite of the injunction issued against him not to do so in the civil suit filed by the landlord. It was found that the repairs had been carried out by the tenant on 6th and 7th of June, 1985. Appeal was dismissed. Tenant being aggrieved has filed the present revision petition.

Counsel for the parties have been heard.

Clause a (iii) to Sub-section (3) of Section 13 of the Act reads as under:-

" In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation."

In this case, the ejectment was sought on the ground that the building is required by the landlord for carrying out repairs as it had become unsafe and unfit and unfit for human habitation. From the averments made in the pleadings which have been reproduced verbatim in the earlier part of this judgment, it is clear that on the day the ejectment petition was filed, tenant had already carried out the alleged repairs. The words "demised shop is very old built and its roof required replacement and was thus unfit and unsafe for human habitation. It could fall at any time and caused loss to the human life and property but the respondent began to effect material alterations therein without the consent of the applicant who filed a suit for permanent injunction restraining the respondent from making any material alteration in the shop," is in the past tense and further that "the respondent had effected heavy material alterations in the shop in dispute without any right" indicate that the tenant had already carried out the repairs in the shop in dispute. The ejectment u/s 13(3) (a) (iii) of the Act on the ground that the building is unfit and unsafe for human habitation and the same is required for carrying out repairs has to exist on the date the petition is filed. In this case, the ground for ejectment that the building was required for carrying out repairs as the same had become unsafe and unfit for human habitation did not exist and on this ground ejectment of the tenant could not be ordered. It may be true that tenant forcibly without taking recourse to Section 12 of the Act, carried out the repairs but that by itself would not entitle the landlord to evict the tenant. The requirement of the building to effect the repairs no longer subsisted. Question as to whether the repair effected by the tenant at his own cost without taking recourse to Section 12 would alter the situation was answered in the negative by their Lordships of the Supreme Court in Shadi Singh Vs. Rakha, . In the aforesaid case, landlord ad filed an application u/s 13(3) (a) (iii) of the Act for ejectment of the tenant from the demised premises on the ground that the building was required for reconstruction as it had become unsafe and unfit for human habitation. Rent Controller ordered the eviction of the tenant. On appeal, Appellate Authority reversed it and held that the tenant had already carried out repairs and the shop had become safe and habitable and so the need for ejectment no longer subsisted. Landlord filed a revision petition in this Court which was allowed and the order of the Rent Controller ordering ejectment of the tenant was restored. On further appeal under Article 136 of the Constitution of India in the Supreme Court of India, the order passed by the Supreme Court of India, the order passed by the High Court was reversed. The appeal was allowed and the order of the Appellate Authority was restored. It was held that the Appellate Authority was justified in concluding that the tenant had already carried out the repairs, the shop became safe and habitable and, therefore, need for ejectment no longer subsisted. In the present case, on the date the ejectment petition was filed, the cause that the building was required for carrying out repairs as it has became unsafe and unfit for human habitation did not exist as the tenant had already carried out the repairs as per averments made in the ejectment petition.

For the reasons stated above, it is held that ground for ejectment of the tenant on the plea that the building that become unsafe and unfit for human habitation and the same was required for carrying our repairs by the landlord did not exist on the date the petition was filed and the ejectment order passed against the ejectment petition filed by the landlord is dismissed with no order as costs.