Hans Raj vs Avtar Singh and Others

V.K. Jhanji, J.—This is landlord''s revision petition.

Petitioner (hereinafter referred to as (''the landlord'') filed an ejectment petition against Kapur Singh (since deceased, and now represented by his legal heirs) for his ejectment from the demised premises on the grounds of non-payment of rent; impairing the value and utility of the premises; premises having become unfit and unsafe for human habitation; change of user, and also on the ground of subletting of the premises to Avtar Singh, his son

During the pendency of ejectment petition and before filling of the written statement, Kapur Singh died and his legal representatives were brought on record. She ejectment petition was contested only by his son, Avtar Singh, who filed written statement and denied the allegations made in the ejectment petition.

The Rent Controller allowed the ejectment petition and passed an order of ejectment against the respondent. On appeal filed by the respondent, the appellate Authority set aside the findings of the Rent Controller and in consequence thereof, dismissed the ejectment petition. The revision petition has now been preferred by the landlord challenging the order of the appellate Authority.

Mr. V. K. Jain, Sr. Advocate, learned counsel for the landlord submitted that the demised premises were divided into two parts by raising a wall and therefore, the tenant has materially impaired the value and utility of the premises. He further submitted that demised premises are in a dilapidated condition. In support of this argument, he referred to the statement of A.W.1-V. K. Arora, Advocate, who was appointed as Local Commissioner by the Rent Controller vide ex-parte order 9-5-1977. I am afraid to accept the argument of learned counsel for the landlord in view of the statement of Kashmira Singh, A. W. a qualified Overseer, who inspected the demised premises in the presence of respondents. The said Kashmira Singh was examined by the landlord himself not only admitted in his statement that there was no wall dividing the demised premises into two parts, but also admitted that there is not even a single hole in the tin sheets, and that the roof suffers from no leakage. He also accepted the suggestion that the demised premises are fit for habitation and are not likely to fall. In view of the statement of Expert, the Appellate Authority rightly arrived at a finding that the tenant has not materially impaired value and utility of the premises and the premises are for human habitation.

Learned counsel for the landlord in order to press the ground of change of user contended that originally the premises were rented out to sell hand-pump material and not for manufacturing purposes, whereas the tenant has now installed a lathe, drilling machine, welding set and diesel engine which amounts to change of user.

Admittedly, at the time when the premises were let out, no rent-note was executed specifying the user for which, the premises were let out. However, it has come on record that right from the beginning, the premises are being used for the purpose of tubewell and pump-fitting and sale of its material. In the year 1967, tenant, Kapur Singh, entered into partnership with his son, Aytar Singh, and partnership-deed dated 3rd of December, 1967, Exh. R-5/P was executed to which, landlord. Hans Raj is one of the attesting witnesses. In the said partnership deed, it is clearly mentioned that the business of partnership was/is and shall be of tubewell and water-pump spare parts. It has also come on record that the drilling machine and welding set were installed in the year 1967. R.W. 9, Avtar Singh, respondent, has categorically stated in his cross-examination that the drilling machine is being used for threading/making holes in the pipes, which earlier was being done manually. Moreover, this very business is being carried on since the inception of tenancy and therefore, it would be rather too late for the landlord to urge that the premises were not let out for this purpose. Learned counsel for the petitioner has failed to point out any evidence on record to show that by installing drilling machine and lathe, the tenant has in any way damaged the property of the landlord. I am in agreement with the reasoning adopted by the appellate Authority that by installing these machines, the tenant has not changed the user of the premises. Therefore, the order of the appellate Authority under revision calls for no interference.

During the pendency of the revision petition, the landlord filed two miscellaneous applications; one for the appointment of a Local Commissioner in order to see the condition of the demised premises and the other one under Order 41, rule 27, Code of Civil Procedure, for summoning the file of Taxation Officer-cum-Assessing Authority, Patiala, relating to the return filed by the tenant for showing that tenant is engaged in the business of manufacturing Centrifugal pumps. Learned counsel for the petitioner at the time of arguments, pressed both these applications and wanted this Court to appoint a Local Commissioner and summon the afore-mentioned file. After hearing the learned counsel for the petitioner, I find no merit in both these applications. During the course of trial before the Rent Controller, the landlord himself examined a qualified Engineer who not only submitted his detailed report, but also appeared as a witness and therefore, there is no necessity to make any further investigation. As far as the other application under 41, rule 27, CPC is concerned, the order attached to the application relates to the year 1982-83, whereas application for ejectment was filed on 9-5 1977 and therefore, the same cannot be allowed. Moreover it was not the case of the landlord in his ejectment petition that the tenant is carrying on the business of manufacturing Centrifugal Pumps in the demised premises.

No other point was urged by the learned counsel for the petitioner.

Consequently, I find no merit in the revision petition and the same is accordingly dismissed, but with no order as to costs.