M/s. Jethu Mal Jiwan Ram vs Gita Ram

Sukhdev Singh Kang, J.—This revision petition is directed against the order of the Appellate Authority under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ''the Act'') dated September 19, 1984, whereby the appeal of the Petitioner against the order dated November 7, 1983 of the Rent Controller, Panipat, rejecting the application of the Petitioner u/s 12 of the Act, had been dismissed.

Brief facts giving rise to the filing of the revision petition may be stated thus.

Massrs Jetha Mal Jiwan Ram, the present revision Petitioner, in the Court of the Rent Controller, filed an application u/s 12 of the Act for permission to carry out urgent repairs of the demised premises. It was pleaded that the Petitioner was a tenant on the ground floor-godown, bearing Municipal No 342/4. Respondent-landlord had constructed a shed on the roof of the godown, resting on the pucca-brick pillars in the front and back portions. It was averred that the southern wall of the godown was joint with one Des Raj. The Respondent-landlord intentionally demolished the shed over the roof of the godown. The pillars fell on the roof and broke two karies of the roof and the third one is hanging. The malba of the demolished shed is also lying on the roof of the godown. It was pleaded that the landlord in collusion with Des Raj got demolished substantial portion of the wall on the southern side and reduced its width to a great extent thereby causing damage to the wall Des Raj had reconstructed his shop by demolishing more than one-half width of the wall. It was further pleaded that the landlord had failed to carry out necessary repairs. Rather on August 24, 1983, he filed an ejectment application against the Petitioner which was pending in the court. So, it was prayed that the Petitioner be allowed to carry out necessary repairs and costs thereof may be ordered to be deducted from the rent which is payable to the Respondent. He also prayed that the landlord should be directed to remove the malba, lying on the roof of the godown

This application was resisted by Pt. Gita Ram, landlord Respondent.

Both the parties led evidence. The learned Rent Controller visited the spot and found that four karies (Wooden rafters) along with the part of the roof thereon had already fallen and two wooden rafters were partly broken. One girder was resting on the wall of the adjoining shop towards southern side That wall had been recently constructed by the owner of the shop On the upper portion there were cracks on the two pillars. The wall on the first floor which was about six feet in height towards south had fallen and the bricks were still lying on the roof of the godown in question. It was an old construction and there were minor cracks in the wall.

After perusing the pleadings of the parties and the evidence led by them and taking into account the inspection note, the learned Rent Controller, came to the conclusion that as a result of the construction of the new wall of his shop by Des Raj, the upper portion of the wall had fallen on the roof of the demised premises. The wall had become very weak. There were cracks in two out of the three pillars. The four rafters and part of the roof had already fallen. Two of the rafters were partly broken. The teamed Rent Controller recorded a positive finding that in order to make the demised premises habitable, it will be necessary to reconstruct (he entire wall of the go down towards the southern side and the part of the roof of the demised premises. By carrying out repairs of the wall towards the southern side it will not make the demised premises fit for human habitation. The tenant-Petitioner went up in appeal and the same was dismissed by the Appellate Authority on September, 19, 1981. Taking into account the fact that the wall on the first floor had fallen and the four rafters in the roofs having fallen and the walls having bulged out, as stated by the landlord, the learned Appellate Authority came to the conclusion that there did not appear to be any scope for interference in the orders passed by the learned Rent Controller, declining the request of the Respondent for carrying out urgent repairs.

Shri R. L. Sarin, the Learned Counsel for the Petitioner, has vehemently argued that there is no bar to the tenant in filing an application for repairs, during the pendency of the petition for ejectment filed by the landlord on the ground that the premises had become unfit for human habitation. In support of this contention he has relied upon a decision of this Court in Balbir Singh Vs. Hari Ram, . There is no quarrel with this proposition. As a matter of law, an application u/s 12 is not barred when a previous petition for ejectment by the landlord is pending.

Mr. Sarin then contended that by replacing the roof the premises shall be rendered habitable He contended that the law was settled in this behalf that the replacement of the roof of the premises in dispute does not amount to reconstruction of the premises and is included within the expression "repairs". He has referred to me a few of decisions of this Court in Chandu Lal v. Bar Lal (1966) 68 P. L. R. 36 (S. N.), Shri Ved Parkask v. Shri Khushi Ram (1973) R. C. R. 252, Dr Jagmohan Singh v. Smt Bimla Devi (1975) 77 P. L. R. 643, and Dharam Pal v. Janki Nath Sharma (1985) 87 P. L. R. 312. These cases have been decided on the facts and circumstances of their own. If they lay down an abstract proposition of law that the replacement of a roof in no case amounts to reconstruction, then I have my reservations regarding the correctness of this view. It is not necessary to go into this question because in the present case it is net only the roof which is considered by the authorities below to be in a dilapidated condition, they have also come to the conclusion that in order to make the demised premises habitable it will be necessary to reconstruct the entire wall of the godown towards the southern side and mere repairs of this wall will not render the demised premises fit for habitation.

Mr Sarin has not been able to refer to any decision of this Court, whore it may have been held that even when a wall of the demised premises has to be reconstructed to make the premises habitable, it will amount only to repairs. The view taken by the learned Rent Controller and the learned Appellate Authority is perfactly in consonance with law. Their orders do not suffer from any infirmity.

There is no merit in this revision petition and the same is dismissed. There shall be no order as to costs.