Harbans Lal and Others vs Vinod Kumar

N.K. Kapoor, J.—This is tenant''s revision petition. Vinod Kumar landlord filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'') for ejectment of the tenants on the grounds, namely, non payment of rent; premises in dispute having become unfit and unsafe for human habitation - the building being an old structure constructed about 100 years back and that most of the building has fallen down. In addition thereto, eviction was sought on the ground that the tenant has changed the user of the premises in dispute from hotel to fruit shop without the written consent of the landlord and that the tenant has committed such acts as are likely to impair the value and utility of the demised building by effecting unauthorised structural changes. Not only this, Harbans Lal tenant has parted with possession of the demised premises in favour of Ashwani Kumar and Rajinder Kumar (petitioners No. 2 and 3 in the present revision petition).

The tenants contested the application and filed written statement denying the allegations of the landlord.

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

Whether the demised premises has become unfit or unsafe for human habitation? OPA

Whether respondent No. 1 has changed the user of the premises in dispute? OPA.

Whether the respondent has committed such acts as are likely to impair materially the value and utility of the premises in dispute? OPA.

Whether respondent No. 1 has sub let the premises in dispute to respondents No. 2 and 3? OPA.

Relief.

Rent Controller examined issues No. 1 and 3 together and held that the premises in dispute consisted of one big hall and one room behind the hall and that the roof had fallen down which the tenant had reconstructed having divided the same into two shops. Roof of one shop is constructed with wooden planks whereas the roof of the other shop is constructed with in sheets and so the roof of the newly constructed shops is of temporary nature and can fall at any time. Rent Controller further held that the tenant has made material changes/alterations in the premises in dispute. Accordingly, the Tribunal held that the building is unfit and unsafe for human habitation and the value and utility of the building in dispute has also diminished on account of these material alterations and changes. Accordingly, both these issues were decided in favour of the landlord and against the tenant. Under issue No. 2, the Rent Controller held that the tenant has changed the user of the premises in dispute. Issue No. 4 was decided against the landlord. Resultantly, the application for ejectment was accepted and a direction was issued to the tenant to vacate and hand over the vacant possession of the premises in dispute to the landlord within three months from the passing of the order.

The tenant-respondents in the eviction petition filed appeal before the appellate authority for setting aside the order of the Rent Controller dated 12.11.1986. The appellate authority heard the arguments and on the request of learned counsel for the tenant chose to inspect the building as to whether the building as a whole is unfit and unsafe for human habitation. An inspection note was recorded on 21.10.88. When the appeal came up for further hearing, counsel for the tenant made a statement that the appeal be dismissed as withdrawn and they be given time till 30.6.1989 to hand over its possession to the landlord. This was not objected to by the learned counsel for the landlord and so the appellate authority dismissed the appeal having been withdrawn. However, Harbans Lal tenant was permitted to remain in occupation of the demised premises till 30.5.1989 as mutually agreed by the respective counsel.

Despite having withdrawn the appeal, the present revision petition has been filed challenging the order of the appellate authority that the same is violative of Order 23 Rule 3 of the CPC (for short ''the Code''). According to the petitioners, the appeal had been disposed of in terms of the compromise and since the same is not in conformity with Order 23 Rule 3 of the Code, the order of the appellate authority deserves to be set aside. The petitioners denied the compromise and the time sought to vacate the premises. According to the petitioners, a request, in fact, had been made to the Court to allow them sufficient time to approach this Court. This Court noticed the contention raised by the learned counsel for the petitioners and admitted the revision petition and dispossession was stayed till further orders.

Learned counsel for the petitioners argued that the order of the appellate authority that the appeal be dismissed as withdrawn in the context of the facts on record is, in fact, as per alleged compromise. Joint statement of the parties was recorded which cannot be said to be in accordance with Order 23 Rule 3 of the Code. Moreover, the impugned decision of the appellate authority is not based upon the inspection note. That way the order of the appellate authority deserves to be set aside and case remanded to the appellate authority for fresh adjudication.

Defending the order passed by the appellate authority and even contesting the maintainability of the present revision petition, the counsel for the respondents argued that the revision petition was not maintainable. According to the counsel, the appeal filed by the present petitioners was dismissed as withdrawn as per statement of the parties and their counsel which makes the order of the Rent Controller final as per Section 15(4) of the Act. Since no grievance has been made to the valid order passed by the Rent Controller, the revision is wholly incompetent. Otherwise too, the petitioners contention that the matter has been disposed of on the basis of compromise is also against facts on record. The appellate authority after having heard the arguments chose to inspect the building and so visited the spot in the presence of the parties. The inspection note forms part of the record. As per this inspection note, the building was found to be in dilapidated condition which could fall at any time. The petitioners having become aware of the inspection note, on their own thought it more appropriate to seek more time from the Court for vacating the premises. It is in this context that Sarv Sh. Harbans Lal and Ashwani Kumar and their counsel Sh. Viresh Nanda made a statement on 24.10.1988. Since only request was made by the petitioners for some more time to vacate and hand over the vacant possession of the premises in dispute, the statement made by the petitioners was accepted by the counsel for the respondent. Thus, in fact, there was no compromise between the parties. Rather voluntary statement has been made by the petitioners and their counsel which was accepted by counsel for the respondent. This way reliance upon Order 23 Rule 3 of the CPC is wholly misplaced.

I have heard learned counsel for the parties and have perused the order of the Rent Controller. The order of the appellate authority, inspection note of the appellate authority as well as statement made by the parties. The findings recorded by the Rent Controller have not been challenged in the revision petition. The appellate authority after hearing the arguments of the learned counsel for the parties agreed to inspect the demised premises with a view to verify the contentions raised by the parties in respect of their stand. The appellate authority vide inspection note dated 21.10.1988 observed as under:-

" The southern portion of this room was also in a dilapidated condition. The mud mortar was falling and the wooden battons in the roof appeared to be very weak and sagging. The room behind the second room was used as a store and wooden packages were lying in it and it was also in a dilapidated condition. However, its walls were not completely visible because of the packages lying there and darkness. The entire portion ABCY was giving a shabby look and showing that it was not used by the tenant except for keeping the wooden packages because of its unsafe nature.The first floor over the rear portion XBCY was lying un-occupied and in shambles. The walls had cracks. The portion of the roof had fallen and the floor had also sagged. It is likely to fall at any time. The roof of the first floor had big cracks and had sagged to a great extent. It is also likely to fall at any time.The visual inspection shows that the demised premises as a whole is very weak, old and in a dilapidated condition."

The statement of Sarv Sh. Harbans Lal and Ashwani Kumar appellants (now petitioners) and Sh. Viresh Nanda counsel for the Appellant reads as under:-

" We concede that the building of which demised premises is a part has become unfit and unsafe for human habitation. The appeal may be dismissed as withdrawn and we may be allowed time till 30.6.1989"

Similarly, statement of counsel for the respondent Sh. Balraj Mohan reads as under:-

" I have heard the statement of the appellants and their counsel and the same is acceptable. The appellants be allowed time till 30.6.89 to vacate the premises and appeal dismissed."

It is in pursuance to this statement that the appeal was ordered to be dismissed as withdrawn. However, the tenant was permitted to remain in occupation of the demised premises till 30.6.1989 on the expiry of which he is to deliver back vacant possession to the landlord. Order 23 Rule 1 of the Code deals with withdrawal of suit or abandonment of part of the claim. The plaintiff can at any time after the institution of the suit can abandon the suit or abandon any part of his claim. Statement of Sarv Sh. Harbans Lal and Ashwani Kumar is only to the effect that the building has become unfit and unsafe for human habitation i.e. to say they were merely conceding what Rent Controller has found as a fact and it is precisely for this reason that they did not wish to press the appeal, but merely sought time to deliver back the vacant possession of the premises in dispute. Even the statement of counsel for the respondent is only to the effect that he has no objection if time is granted by the Court to deliver back the vacant possession of the property in dispute on or before 30.6.1989. Thus, I am of the view that such a statement/statements do not constitute a compromise under Order 23 Rule 3 of the Code. Since the appeal had been withdrawn by the petitioners on their own, the order passed by the appellate authority dismissing the appeal as withdrawn cannot be termed to be illegal calling for any interference in the revisional jurisdiction of this Court. Thus finding no merit in this revision, the same is dismissed. The petitioners are, however, granted two months time to deliver back the vacant possession of the property in dispute to the landlord subject to their paying all the arrears of rent including the rent for these two months within a fortnight from the passing of the order. No costs.