Joginder Kishore Puri vs Dr. Bhagwan Dass

Hemant Gupta, J.—The landlord is in revision aggrieved against the order passed by the learned Appellate Authority whereby the appeal filed by the tenant against the order of eviction passed by the learned Rent Controller was accepted and the eviction petition of the landlord was dismissed. It is the case of the petitioner that the shop consisting of two rooms, as detailed in the heading of the petition, was rented out to the tenant-respondent at a monthly rent of Rs. 15/-. The petitioner sought ejectment of the tenant on the ground that the rent of the demised premises has not been paid since 1.9.1984 and that the demised premises has become unfit and unsafe for human habitation as the building is of about 80-85 years old and it has outlived its age. There are cracks in the walls. The premises in dispute is extremely in dilapidated condition and beyond repair. It is alleged that a major portion of the roof of the rear room has fallen down due to rains and it has completely become unsafe and unfit for human habitation. The roof of the room at first floor is also in damaged condition and leaking.

The tenant denied the allegations and asserted that the building in question is quite safe and fit for human habitation. No part of the building is cracked one or in dilapidated condition. No part of the roof has fallen. It is also alleged that there is no cracks in the walls. It was pointed out that the petitioner has threatened the respondent-tenant that he will demolish or damage the roof of the shop in dispute by force.

In order to prove the grounds of eviction, the landlord examined AW-1-S.C.Vermani, a building expert and examined himself as AW-2 and also examined AW-3 Amrit Lal Anand and AW-4 Anil Kumar. He also produced on record the report of the Local Commissioner, Exhibit A-1 and the site plan Exhibit A-2 and the photographs Exhibit A-3 to A-7. The report of the Local Commissioner, Exhibit PX and also the site plan, Exhibit PY prepared by Sukhwinder Pal Singh, Advocate, were also produced on record. The tenant examined himself as RW-1 and has examined Joginder Singh Walia as RW-2, Surinderjit Singh RW-3, Raghubir Singh RW-4, Mann Singh, Chartered Engineer RW-5 and Harvinder Kumar RW-6.

The learned Rent Controller relied upon the report of Sukhwinder Pal Singh, Advocate, Exhibit PX and the site plan Exhibit PY and held that the shop is in dilapidated condition and unsafe and unfit for human habitation and consequently, passed an order of eviction of the tenant. It was found that the back portion of the rear roof was not demolished by the petitioner and his son, but the same has fallen at its own and that the entire building has become unsafe and unfit for human habitation. However, the learned Appellate Authority reversed the findings recorded by the learned Rent Controller.

It was found by the learned Appellate Authority that AW-1 S.C.Vermani has deposed in his report that two Ballas of the rear room had fallen at the time of his inspection. He has further stated that none of the Shatir had fallen down except the Ballas and there are two big girders in the front room and two on the back room. Reference is made to the statement of the landlord who has deposed that only 4 or 5 Ballas of the roof of the back room of the shop in dispute had fallen down in October, 1986 and he cannot tell that how many Ballas fell thereafter. He deposed that no girder had fallen. Similar is the statement of Amrit Lal AW-3. The Court found that if some Ballas on the first floor have fallen, it cannot be said that the whole building has become damaged. It has been further found from the testimonies of Surinderjit Singh Walia-RW-3 and S.C.Vermani, AW-1 that the landlord is residing on the first floor. The Court found that if the landlord is residing at the first floor then the building cannot be said to be unsafe and unfit for human habitation and consequently, dismissed the eviction petition.

I have heard learned Counsel for the parties and perused the record.

From the perusal of the record, it transpires that there are four reports of the Experts on record of the learned trial Court. The first, in point of time is of Raghbir Pal Singh Bajwa, Advocate, dated 1.10.1986, Exhibit R-8. Sh.Bajwa was appointed as Local Commissioner in a suit for permanent injunction filed by the tenant. He has reported that the disputed roof of the shop namely roof of the back room is made of wooden Ballas, Wooden Fatties and iron girders and that the roof was intact good and safe at the time of his visit. Next is the report dated 25.4.1987, Exhibit A-1, submitted by Shri S.C.Vermani, an expert produced by the landlord. He has deposed that the portion of the back wall towards the Coal Depot of Shri Roshan Lal Puri was found to be unplastered and exposed to weather and it is badly decayed and damaged with the result that serious signs of dampness, decays and damages etc. were visible from the inside faces of the walls in the rear portion of the back room. Due to the falling down of a part of the roof of the back room, the malba/debris of the same still lying at the site. The room was virtually lying vacant. A few cracks of about 1/16 in width and 2 to 6 feet in length were also visible from the inside faces of the walls as denoted by the word `C'' on the plan in respect of portion on the first floor. The battens of the rear roof had fallen down and the remaining are likely to fall due to building being very old. In this way, major portion of the roof has fallen down.

The area marked as `C'' is a wall measuring 14`x 3 in length of the room on the front of first floor as well as wall of a lobby and wall of the bath room on the first floor. The Expert has found disintegration of bricks underneath the roof of the front room of the demised shop. In respect of the roof of the back room, it was reported that the roof is consisted of brick tiles/wooden planks supported by 14 Nos. of wooden battens in each span resting over two rolled steel girders. The full length of the back span had already collapsed, whereas a part of the brick tiles terracing at the top of the roof was sticking at the site. It was very risky to stand over the same at the first floor as it could fall down at any time. This was giving a very ugly and dangerous look. The malba of the fallen down roof was still heaped there. It has been found that the floor of the roof at the first floor was sinking, risky and in bad condition. The floors consist either of cement concrete or bricks and these are worm off and damaged at some places. The doors and windows are of soft wood. The said Expert, while appearing as AW-1 on 1.9.1987, has deposed that the first floor of the building is lying vacant. Some portion of the roof of the rear room had fallen. The mortar of the joints of the masonry wall was taken out to ascertain the strength and adhesiveness. It was found that it was crumbling. He has deposed that there are two rooms in the shop. The roof of the shop in the front room consists of jack arches made out of pucca bricks. He has also deposed that four Ballas had fallen down of the back room. Thus, the report suggests that the entire building is having cracks. Roof of the rear back room is fallen. Except for the shop portion, the entire building is in bad condition.

There is another report prepared by Sh.Mann Singh, Chartered Engineer examined by the tenant. He has inspected the site on 23.1.1988 and prepared a report dated 31.1.1988, Exhibit RW-5/2. His report dated 31.1.1988 is to the effect that the walls of the shop are quite thick and are in plumb. There is no crack in any wall. The mud mortar is found to have sufficient adhesiveness. The roof of the front portion is found to be in good condition. Whereas in the back portion 5 battens have fallen down, but the reason for the damage is leakage of water from the roof and from the drain as mentioned in sub para (h) of the report. He has concluded that the fallen battens and planks are to be replaced and the roof repaired without disturbing the rest of the roof.

The landlord moved an application on 26.7.1988 pointing out that one room of the demised premises has already fallen due to heavy rain and, therefore, sought appointment of a Local Commissioner. Shri Sukhwinder Pal Singh, Advocate was appointed as Local Commissioner who has given his report dated 9.8.1988, Exhibit PX. The relevant portion of the report, showing the condition of the demises premises, is reproduced as under:

xx xx xx xx 4. That in the front room of shop in dispute of Dr.Bhagwan Dass, I noticed some cracks in the upper portion of the side wall which I have indicated in the rough Site Plan attached. I requested Suraj Parkash to open the lock of the door to reach the rear portion of the shop in dispute, but he refused to open the lock. Then the petitioner requested me that the actual position can be seen by going through his house. I went to the upper portion of that house to see the actual and factual position regarding the second room or back portion of the shop in dispute.

From my inspection, I observed that the back room had three garders, out of which the portion of the roof of two back garders had completely fallen alongwith the wooden planks and malba thereon. The garders are still hanging in the wall. I further observed that some BALAS had fallen from over the third garder also.

It is also mentioned that there was a first storey over the rear room of the shop in question, near about half portion of that had fallen. There is likelihood of falling of the upper wall of that portion at any time and may prove dangerous to the inhabitants. Wooden Planks and the Malva of the roof were lying in heaps behind and inside the shop in dispute, on the site walls, there was bricks which appeared to be very old, were lying by the side of the walls having fallen from the shop in dispute when the rear portion of the shop in dispute had collapsed.

That in the end, I am of the considered opinion that my faithful and true observation, the condition of the shop in question has been so dilapidated that it has not only become unfit for inhabitation of human beings but also has become very injurious and dangerous to adjoining buildings and their inhabitants.

xx xx xx xx

The Local Commissioner has shown cracks on the side walls of the shop and has reported that the roof of the rear portion has fallen down. Another Local Commissioner was appointed by this Court vide order dated 21.2.2007. He has reported that the first room in possession of the tenant is in good condition. Whereas, the second room is in dilapidated condition. Its roof has almost fallen. The fallen roof alongwith other material is lying stored in this room and the tenant is not using this room. Two iron garders are lying in the room. The Local Commissioner has produced 11 photographs in respect of the premises in dispute. With the said evidence on record in respect of the condition of the building, it is apparent that there is no dispute that the roof of the back portion has fallen down in the year 1988. The Expert of the landlord has reported cracks in different walls of the first floor of the building. The Local Commissioner appointed by this Court has reported cracks on the side walls of the shop portion in possession of the tenant. The photographs produced by the Local Commissioner appointed by this Court show the walls of the back room without any roof.

The argument that it is the landlord who has caused loss to the roof of the room remains unsubstantiated. The roof of the room has fallen down during the pendency of the eviction petition. There is no reliable evidence which shows that it was an act of the landlord which caused damages to the building. The learned Appellate Authority has considered the report of Shri S.C.Vermani, AW-1 alone, but has not taken into consideration the report of the Local Commissioner appointed by the learned trial Court, which was relied upon by the learned Rent Controller. Even if the report of the Experts produced by the parties is ignored, the report of the Local Commissioner appointed by the trial Court leads to irresistible conclusion that the tenanted premises is unfit and unsafe for human habitation.

Admittedly, the premises let out consists of two portions. One portion has fallen down. The other portion was found to have cracks in the year 1988. Thus, it cannot be said that the building is fit for human habitation. The finding recorded by the learned Appellate Authority that the tenant is not liable to be evicted as the building is fit for human habitation suffers from patent illegality and irregularity which cannot be sustainable in law.

Consequently, the present revision petition is allowed. The order passed by the learned Appellate Authority is set aside and that of the learned Rent Controller is restored. The respondent is granted three months time to hand over the vacant possession of the tenanted premises to the landlord, failing which the landlord is entitled to execute the order of eviction.