Jawahar Lal vs Mangu Ram

J.V. Gupta, J.—This revision petition is directed against the orders of the authorities below whereby the adjustment application filed on behalf of the landlord has been dismissed.

The landlord sought the adjustment of his tenant on the sole ground that the building had become unsafe and unfit for human habitation. The said application was filed in the year 1973, i.e., about 14 years back. Since both the authorities below found that the building had not become unsafe and unfit for human habitation, the landlord moved an application in this Court for appointing a local commissioner to find the present condition of the building. Consequently-vide this Court order dated April 23, 1987, Shri D. Khanna, an Advocate of this Court, was appointed as a local commissioner to visit the premises, in dispute. He was directed to inform the counsel for the parties before visiting the building and to find out the present condition thereof as well as the repairs, if any, made by the tenant during the pendency of this petition or otherwise without the permission of the landlord. The local commissioner has submitted a detailed report dated May 8, 1987. With the said report, he has also filed certain photographs taken by him at the spot for which reference has been made in the report. It appears that the local commissioner has taken pains to find out the exact position of the premises as it exists at the spot.

The shop, in dispute, consists of four khans. The local commissioner has discussed the condition of all the khans separately in detail. He has also prepared the rough site plan, Annexure R.1, which contains the signatures also of the persons present. However, objections dated May 29, 1987, have been filed on behalf of the tenant. Along with the said objections, he has also filed certain photographs of the demised premises as well as the site plan prepared by one Rattan Lai Yadav, civil draftsman.

The learned Counsel for the tenant submitted that from the report of the local commissioner, no case was made out that the building was unsafe and unfit for human habitation. Moreover, according to the learned Counsel, no photographs have been filed by the local commissioner with respect to khan No. 1. Even the conclusions with respect to the other khans of the shop, in dispute, are not correct.

After hearing the learned Counsel for the parties and going through the report of the local commissioner, I am satisfied that the building is unfit and unsafe for human habitation and that the tenant is liable to be ejected there from on this ground. Though objections to the said report have been filed on behalf of the learned Counsel for the tenant, yet he was unable to point out any provisions of law where under the same were maintainable. Order XXVI, Rule 8, Code of Civil Procedure, deals with the commissioners to make local investigations. Sub-rule (2) to Rule 10 thereof provides that the report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the Court or, with the permission of the Court, any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Thus, there is no provision for filing objections to such reports made by the local commissioners. Even otherwise, if objections are allowed to be filed to such like reports made by the local commissioners, then there will be no other way to find out the exact position of the site, in dispute. The inspection by the local commissioner is made in the presence of the parties. Therefore, the said report is to be ordinarily accepted by the Court appointing the local commissioner unless any inherent defect could be pointed out therein. In this case, no request was made on behalf of the tenant to examine the local commissioner in this Court touching any of the matter referred to him or mentioned in his report, nor do I find any occasion for the same.

Admittedly, the application for adjustment was filed more than 14 years back. The building is an old one. The landlord himself purchased the same from the original owner in the year 1921. From the report of the local commissioner, it is quite evident that the building is an old one and it is only khan No. 1, which according to the local commissioner was being actually used by the tenant as a cloth shop. Thus, from the facts and circumstances of the case as revealed by the report of the local commissioner, it is quite evident that the building has become unsafe and unfit for human habitation.

Consequently, this revision petition succeeds and is allowed. The impugned orders are set aside and the eviction order is passed against the tenant. However, the tenant is allowed three months'' time to vacate the premises; provided all the arrears of rent, if any, are paid and an undertaking, in writing, that he will vacate the premises after the expiry of the said period of three months and hand over their vacant possession to the landlord, is given before the Rent Controller, within one month from today and the future rent is paid monthly regularly by the tenth of every month, in advance.