Rattan Lal vs Ch. Panna Lal

S.S. Sudhalkar, J.—This revision petition is filed by the tenant against whom the Rent Controller passed the order of eviction, which was confirmed by the Appellate authority. The eviction petition was filed by the respondent on the ground of non-payment of rent, and that the shop i.e, the premises from which the eviction is sought for, has become unsafe and unfit for human habitation. The courts below upheld the pleas of the respondent that the shop has become unfit and unsafe for human habitation.

I have heard learned counsel for the parties.

Counsel for the respondent took up a preliminary objection that he concurrent that the concurrent finding of facts by both the courts below cannot be challenged in a Revision petition. However, if a finding of facts is perverse or without any basis from the evidence, nothing stops the Court from going into the question. Therefore, what is to be seen is whether the findings arrived at are based on evidence or not?

In this case, both the parties have led their evidence. The respondent-landlord has examined himself at AW-1, Lachhman Singh, a retired Civil Engineer at AW-2, Shri Prem Re hani Building Inspector of Municipal Committee, at AW-3 and Shri Chhote Lal, mason at AW-4.

The petitioner has examined himself at RW-3 and has also examined Shri Mohd. Inam, mason at RW-1, Shri H.C, Goel, Retired Superintendent (B&R) at RW-2.

The Courts below have come to the finding that the shop has become unfit and unsafe for human habitation. When the mater was pending before the Appellate authority, Shri Pardeep Garg, Advocate, was appointed as Local Commissioner to inspect the building in question and he has given his report.

Counsel for the petitioner has argued that the condition of the buildings stated by the Commissioner, cannot be said t o be such that it is unfit and unsafe for human habitation. He has referred t o the report wherein the Commissioner has stated that the front door of the shop is made of the old iron sheet (rusted) and is in broken condition and the same is fixed on old wooden frame. This certainly will not make the building unfit and unsafe for human habitation. In the report, it is further stated that the ceiling is in three parts. The first part of the ceiling consists of the old wooden rafters/tors our of which one Karri was repaired with patches of wood as shown in the site plan. First part of the ceiling of the shop is covered with tin and wooden blanks(planks?) and all the karries and tors were old and some of the karries were quite thin and were of different size. In the second portion of the ceiling, there were 13 karries out of which one is tor and this portion of ceiling was covered with wooden fattis/plants out of which 1/2 portion was covered with sheets which is quite visible from the ground. There was termite action in one of the karries and on some portion of the wooden beam towards the Eastern side. There was extra wooden beam which rested on the brick pillar.

According to the report of the Local Commissioner, the third part of the ceiling consisted of 13 karries/rafter out o f which six are tors and two rafters were of iron angle which seemed to be new and rest were wooden karries. The said part of the ceiling was covered with old small wooden fattis and there was see-through hole as shown in the rough site plan and this portion was sagged. The wooden beer in between the first and the second portion of the ceiling is rested on a brick pillar and similarly there is another brick pillar in between the second and third portion of the ceiling All the karries and tors were of different size and were not in alignment. Even the brick pillars as shown in the rough site plan, were not in alignment, with each other.

According to the report, the wall of the shop was made of big bricks which are laid in mud mortar. It is also stated in the report that there was also small gap at the joints of North-Eastern corner of the wall and similarly there was another small gap at the joint of West Southern corner of the shop. The walls were white-washed in yellow colour. The front wall i.e. Northern wall f rom outside was having two brick in decaying condition. There was a small crack in Eastern wall just below the wooden beam between first and second portion of the ceiling. The rest of the report is regarding the floor of the shop and the parapets having already fallen.

The appellate authority has observed inn its judgment that no objection has been raised by any of the parties to the report of Local Commissioner, now was request made to call him in the witness box and therefore, the factual observations made by the Local Commissioner were not questioned by any of the parties and therefore, there was no reason for not relying on the repot. So far these observations are concerned, it is not shown as to how it cannot be said to be correct. Learned counsel for the petitioner argued that the shop has a common wall with two other neighbours'' shops and therefore, it cannot be said that this particular shop is likely to be unfit and unsafe for human habitation. However, this argument cannot be accepted. Some walls may be common but that does not mean that because the other ad-joining shops are standing, this p articular ship cannot be said to be unfit and unsafe for human habitation.

Both the parties have examined their own witnesses as experts. The Court has to consider the evidence coupled with the Local Commissioner''s report . Learned Counsel for the petitioner argued that the Local Commissioner''s report that two bricks on the front side and two bricks on the back side were in decaying condition and this does not mean that the premises is unfit and unsafe. He has also stated that the termite action has been seen by the Learned Commissioner in one of the karries and this itself cannot make the building unsafe and unfit. He has also argued that the Commissioner has stated that there (sic) see-through holes whereas AW-# stated that there were seven holes. However, this cannot be said to be discrepancy. The shop is in the possession of the petitioner and possibility of other holes being close cannot be ruled out. The petitioner has stated in his cross examination that he has got the walls brushed in yellow colour four months prior to his de position.

Counsel for the petitioner argued that the roof is in the three parts and all the three parts cannot be said to be dangerous. It has been argued by the learned counsel for the respondent that the part of the roof had sagged and regarding the bricks support, he argued that it had to be added to prevent the roof from a falling, however, it cannot be said to be a permanent ar-rangement. He has also relied on the photograph, which is in records of the Rent Controller. It is mark ''A'' The said photograph shows the condition of the shop from front side. It has been argued by the counsel for the petitioner that this photograph is not exhibited and there-fore, it cannot be looked into. Learned counsel for the respondent has argued that this photograph was shown to the witness of the respondent. He has read the cross-examination of RW-2 Shri H.C. Goel and he had stated that he had gone to visit the shop in photograph Mark ''A'' As per his deposition he had gone to see the shop in question. From this admission, learned counsel requested that the photograph may be read into evidence. From the admission in the cross-examination, it is certain that the shop, which is shown in the photo, was seen by the witness and when this is the position, the fact that the photograph was of the shop, can be said to have proved.

The photograph shows that the wall in between this shop and the neighbour''s shop is having a vertical crack which is quite a big one and is clearly visible. The state of parapet can also be seen. The same being in a bad condition will not by itself make shop unfit and unsafe for human habitation but it goes to goes to show the process of "aging" of the shop. It can be seen that the upper surface of the parapet is un-even showing that some bricks on the upper surface are missing.

AW-2 has stated that there was wooden planks on the wood beams fitted on the roof which is covered with polythene sheet and mud is placed on the same. He has also stated that the condition of wooden berms is very much dilapidated. The roof of the shop is slanted. This shows that there is slant in the roof which is corroborated by sagging mentioned by the Local Commissioner. In the report of the Commissioner, the ceiling is said to be having there parts. Counsel for the petitioner has argued that if one of the parts is bad, the other portion cannot be said to be unsafe. However, there is no evidence there is no evidence to show that the condition of the ceiling can be separately considered. There may be three spans in the ceiling but there i s no evidence to show that if one span or part crumbles, the others will not.

Learned counsel for the petitioner has cited the case of Daulat Ram v. Sadhu Ram and another, reported as 1990 (1) RCR 34 (P&H) : 1990 H.R.R. 173. It has been held therein that when the khan of the building was in a damaged condition and alleged to have developed cracks and had been given support of a beam, the roof was made of wooden beams, batons and sikri on which earth was put, the building was said to be not unfit and unsafe for human habitation particularly when with a small cost of Rs.50/-or Rs.100/- it roof could be repaired. He has also relied on the case of Piara Lal v. Kewal Krishan Chopra reported as 1988(2) RCR 32 (SC) : 1988 HRR 502. In that case, the Supreme Court had held that when one room in the rear side of the leased premised had fallen down and there was no evidence on record to prove whether the entire building or a substantial portion of it was in a damaged condition, mere falling down of of in one room is not sufficient to warrant a finding that the entire building had become unfit and unsafe for human habitation. There is no dispute regarding this principle laid down by the Supreme Court and this Court in the above mentioned cases. However, in the present case, it is not shown that the parts of the roof can be considered separately and that the sagging of roof in one part will not mean that the roof on the other parts of the shop had not become dilapidated. The reason being that in the case of Piara Lal (supra), each roof was having its separate walls to support it. This is not shown to be the case here.

Learned counsel for the petitioner has further relied on the case of Harnek Singh of Patiala v. Bir Singh by Lrs. reported as 1989 HRR 574. It has been held there in that where the part of roof of the back room had fallen and the remaining part of the building was supported by wooden bllas and where there was hole filled with bricks, mere falling of part of the roof of open room does not make the whole building unsafe. In view of the reasons given above, this case will not help the petitioners.

Learned counsel for the petitioner has argued that a lintel on the same wall has been laid when AWs were examined the lintel wasnot there. He has referred to the deposition of RW-3. The said witness has stated that about 5-7 days earlier, the lintel has been put on wall which is towards the right side. If the lintel has been laid in the adjoining shop, it cannot ipso facto mean that the roof of the present shop cannot be said to be not in dangerous position. Moreover, it is stated by RW-3 in cross examination (as translated) that Landlord had put lintelled of after dismantling the same. This is in reference to a shop vacated by Baldev RaJ.

Counsel for the petitioner argued that when the repairs are made, the roof cannot now be unsafe. He has relied on the judgment of Supreme Court in the case of Shadi Singh v. Rakha reported as 1992 (2) RCR 7 (SC) : 1992(2) PLR 163 (also reported as 1992 HRR 347). Here in this case, it is not shown by the petitioner that the roof is repaired and hence it is not likely to fall down. The petitioner has examined himself as RW-3. He does not say that the repairs have been carried out to make the roof safe. It has been argued that falling of roof will not make the building unsafe. If a roof has already f allen, the rest of the building may not become unsafe. however, if the roof is still there, likelihood of falling of roof itself will make the building unfit and unsafe for human habitation.

Counsel for the respondent has relied on the case of Raghunath (died) through his L.R.s v. Shri Raghbir Dass Bawa reported as 1991(1) RCR 344 (P&H) : 1999 H.R.R. 181. It has been held therein that when the portion of building had already f allen and there were holes on roof and walls were building out and the impugned order was passed on cogent evidence, the interference in Revision was unwarranted. He has cited the case of Chhabil Dass v. Smt. Saroj Garg and others, reported as 1997(1) RCR 635 (P&H) : 1997 H.R.R. 212. It has been held therein that when the walls had gone out of plumb and roof karries bent down with the load of the roof which vibrated with the movement of human being on the roof, was hazardous not only for the occupants but also for general public, the tenant was liable to be evicted because the building had become unfit and unsafe for human habitation.

On consideration of the position, as mentioned above, the question is whether the Courts below have erred in coming to the finding that the building had become unfit and unsafe for human habitation. This is a Revision Petition. It cannot be said in view of the above position that the Courts below have come to the finding, which is not based o n evidence or that the findings are perverse. The report of the Learned Commissioner is to be read as a whole. It is, by itself, sufficient to show that there was sagging and there were supports given to the roof Giving of temporary supports does not mean repairing. It is no where the case of the petitioner that the building was repaired to make it safe. In addition to the evidence of the Court Commissioner, there is also evidence of the witnesses of respondent though the petitioner has also examined his own witnesses. Counsel f or the petitioner has argued that there is evidence of Expert from both the sides. However, when the evidence of Expert of respondent finds support from the Court Commissioner''s report, I do not find any reason to interfere with the findings arrived at by the Courts below.

This Revision petition, therefore, deserves dismissal and is hereby dismissed.

Petition dismissed.