Ranbir Bhatia vs Kashmiri Lal

V.K. Jhanji, J.—This is tenant''s revision against the order of the Appellate Authority ordering his ejectment. Ejectment of the petitioner was sought by the respondent on the ground that tenant has removed wall A B C D and converted two rooms into one hall. Allegation was also made that he had constructed three Parchhatis and these alterations had impaired the value and utili''y of the premises. Petition was contested by the tenant who denied having impaired the value and utility of the premises. His case in the written statement was that the tenanted premises are in the same condition in which it were let out to him. With regard to Parcahatis, it was stated that the same were already in existence when he took the premises on rent. The Rent Controller, on appreciation of the evidence on record, returned a finding in favour of the tenant and in consequence thereof petition for ejectment was dismissed. On appeal by the landlord, the order of the Rent Controller was set aside. The Appellate Authority ordered ejectment of the tenant on the ground that he had removed the wall and also constructed Parchhatis thereby impairing the value of and utility of the premises. The order of the Appellate Authority is impugned here in this civil revision.

Counsel for the petitioner read in extenso the evidence on record and also made reference to plans, Exhibits A-5, A-6, A 9 and A-10 to contend that the landlord has miserably failed to prove on record the allegation with regard to impairing the value and utility of the premises by the tenant. The landlord in his statement has admitted that the tenant has constructed only one Parchhati whereas in his original petition, he never made any grievance with regard to construction of Parchhatis but it was only by way of amendment that existence of Parchhatis was brought in. According to him, it was an afterthought as it was to the knowledge of the landlord that the Parchhatis were already in existence and that too were temporary in nature.

On the other hand, learned counsel for the respondent has contended that the order of the Appellate Authority is not liable to be interfered with as the same is based on appreciation of evidence. He also contended that the building has become unfit and unsafe for human habitation and the revision be remanded or a report be called in order to determine as to whether the building has become unfit and unsafe for human habitation. His contention was that this ground was taken in the petition and the landlord failed to prove this before the Rent Controller but nevertheless because of the subsequent events, ejectment on this ground be considered

After hearing the learned counsel for the parties at length and perusal of the record, I am of the considered view that this civil revision deserves to succeed.

The Appellate Authority in order to arrive at a finding that the wall A B C D was removed and a big room was converted from two rooms, relied upon plans, Exhibits A-9, A-10, A-6 and A-5 prepared in this years 1958, 1962, 1965 and 1980 respectively. According to the Appellate Authority, wall was in existence in the years 1958, 1962 and 1965 but the same was not there at the time when plan. Exhibit A-5 was prepared by the draftsman at the time of filing of the petition. In my view, this approach of the Appellate Authority is clearly erroneous. Bare perusal of plans, Exhibit A-9, A-10, A-6 and A-5 shows that they are not according to the scales and thus it cannot be said with certainty that the wall A B C D was in existance. The landlord in his statement has admitted that at the time when he purchased these premises in auction, plan of the premises was prepared. This plan has been withheld by the landlord. No explanation whatsoever has been offered as to why this plan was not brought in evidence. In absence of the plan which was prepared at the time of auction, tenant cannot be ejected on the ground that the walls were in existence before the purchase of the premises by the present landlord and were removed subsequently in order to convert it into one big room. It also worth noticing that the landlord is residing on the first floor and is also carrying on business in the next shop. In his examination, he has not been able to say as to when these walls were removed. It is not believable that the demolition of wall, construction of complete pillars and reseting of the beam thereon to support the existing wall on the first floor were done without the knowing of the landlord who is residing on the first floor and is carrying on business is the next shop. The draftsman who prepared the plan, Exhibit A-5 appeared as AW-7 in his statement, he has admitted that the plan had been prepared on the asking of the landlord and without inspecting the premises. I am not impressed with this argument of learned counsel for the respondent or the reasoning adopted by the Appellate Authority that the wall in the same alignment is existing on the first floor and. therefore, the wall on the ground floor must have been removed by the tenant. As already noticed, plans brought on the record do not clearly indicate that the walls, A, B, C, D was ever in existence. This also finds support from the statement of AW-3, Balwant Singh, qualified draftsman examined by the landlord himself. He, in his statement, stated that while inspecting the building, he found no sign of existence of wail on the floor He also admitted that in case the wall had to be raised, foundation had to be constructed He found no foundation or any mark of any wall. The statement of the landlord read with the statement of expert witness produced by the landlord and on perusal of other evidence on record, I am in agreement with the finding of the Rent Controller that the landlord has failed to establish on record by positive and clinching evidence that the tenant committed such acts which materially impaired the value and utility of the premises. With regard to Parchhatis, it would suffice to say that in original petition, no grievence was made with regard thereto, ft was only by way of amendment that this ground was taken. The Appellate Authoriiy while dealing with the allegation of construction of Parchhatis found that out of three Parchhatis, two had not impaired the value of utility. Parchhati in room No. 3 was found to have put additional burden on the wall and, therefore, was held to hare impaired the value and utility of the premises. Balwant Singh, Draftsman, AW-3 in his statement and report, Exhibit A-7, has admitted that one side of Parchhati in Room No. 3 was resting on racks and only one side was inside the wall which was cut into an inch deep Accepting this statement, this Parchhati cannot be said to be permanent in character as one side rented on the racks and the other side is only an inch deep in the wall, It cannot be laid down that construction of Parchhati must necessarily be deemed to be an act of waster which is likely to impair the value and utility of the building. It depends upon the nature of construction. In the present case, I find that the construction of Parchnati has in no way impaired the value and utility of the premises as alleged by the landlord. This a art form the fact that the landlord has also not been able to prove that Parchhatis. were constructed by the tenant.

Mr. Sarin, learned counsel for the respondent pressed for appointment of the Local Commissioner for determining as to whether the premises have become unfit and unsafe for human habitation subsequent to the filing of the |civil revision in this Court. He made re- ference to P. Venkateswarlu v. Motor and General Traders A. I. R. 1975 S. C. 1489 and a judgment of this Court in Bir Bhan Vs. Smt. Iswar Devi, to contend that revisional Court can take cognizance of the subsequent events and Local Commissioner can be appointed to determine this ground. I find no merit in this contention as well. The ground of building having become unfit and unsafe was taken by the landlord but he failed to prove the same before the Rent Controller. Before the Appellate Authority, no grievance was made with regard to the finding of the Rent Controller on this issue In revision before me, though the counsel has filed an application alongwith report of expert to show that a part of the building has become unfit and unsafe for human habitation. The application for appointment of Local Commissioner as also the report of the expert is being contested by the tenant who has stated that "the respondent is in possession of the first floor of the premises in question, and he himself keep on hammering the portion in his possession with a view to create ground of eviction against the petitioner. The respondent cannot take benefit of his own wrong".

In view of the stand taken by the tenant, I am of the view that it is not case where this Court should appoint a Local Commissioner or take into consideration the alleged subsequent events. If the land-lord has become entitled to eject the tenant because of the subsequent events, he can always file a petition for the ejectment of his tenant before the Rent Controller.

Consequently, the prayer made by the respondent for appointment of Local Commissioner and to take into consideration subsequent events is declined. As a result thereof, the civil revision is allowed, the order of the Appellate Authority is set aside and that of the Rent Controller is restored with no order as to costs.