Tulsi Dass and Others vs Smt. Bachan Mala

J.V. Gupta, J.—This is tenants'' petition against whom eviction order was passed by both the authorities below.

The landlady Smt Bachan Mala sought the ejectment of her tenants Tulsi Dass and Nirmal Dass sought the ejectment of her tenants Tulsi Dass and Nirmal Dass from the premises in dispute on the ground that the building had become unfit and unsafe for human habitation. According to the landlady the premises were earlier rented out on a monthly rent of Rs. 80/- plus house tax but with effect from Ist of September, 1981, the rent of the disputed premises was fixed at Rs. 250/- per month including the house tax. This was done with the consent of the parties. It was pleaded that the tenants had committed or caused to be committed such acts as were, likely to impair materially the value and utility of the demised premises; they had raised walls and pillars on the roof of a part of the demised premises; that they had installed a "lana" much(sic) ne on the roof in the shed, as a result of which additional weight had come on the walls and roof which were already very weak and not in a position to bear such additional weight. It was also stated that the tenants had constructed a grave (Kabar) in the Sahan from the stairs and thereby the frequent use of the stairs had been obstructed. Several dozen of big cracks had appeared in the walls. The joints had separated and thus the entire building had become unfit and unsafe for human habitation and it could fall down at any time. Even the tenants, in order to save themselves had put up 15/20 support to the roof in order to save it from falling down. In the written statement the tenants denied the said allegations. It was pleaded that earlier an ejectment application dated 7.6 1977 was filed on this very ground vide copy Exhibit R1, but therein the parties on 20.8 1981 as the rent was enhanced from Rs. 80/- to Rs 250/- per month with effect from September, 1981, and the ejectment application was dismissed as withdrawn. The present application, fifed on 3.9.1982 was not a bonafide one. Nothing has happened after the dismissal of the earlier application as withdrawn.

The case was fixed for arguements before the learned Rent Controller, on 8.5.1986 when an application was moved on behalf of the landlady for inspection of the soot by the Rent Controller himself. On that application, learned Counsel for the tenants made the following statement:

I have no objection if the spots inspected by the Court before deciding the case.

Accordingly, the Rent Controller himself inspected the spot on 8 5.1986 and decided the case on 9.5.1986. He came to the conclusion that:

In the present case, the battens of the roof have bent down and there are cracks in some of the battens and majority of the battens of roofs are resting on the support and in case the support is removed, the roof will immediately fell down.

It was, therefore, concluded that in these circumstances, there can be no conclusion except that the premises had become unfit and unsafe for human habitation. In appeal the learned Appellate Authority affirmed the said finding of the Rent Controller and thus maintained the impugned order.

The learned Counsel for the tenant Petitioners submitted that the application filed by the landlady was not bonafide because in the earlier ejectment application, which was filed on 7.6-1977, same ground that the building his become unfit and unsafe for human habitation was taken but the application was got dismissed as withdrawn when the tenants agreed to enhance the rent from Rs. 80/- to Rs. 250/- per month. This, argued the lerrned counsel, the present application filed on 3.9.1932 on the same ground that the building has become unfit and unsafe for human habitation, was not maintainable. In any case, argued the learned Counsel, the learned Rent Controller, who inspected the site in question never recorded his inspection note and in the absence of same, no finding could be given that the building has become unfit and unsafe for human habitation. In support of these contentions, he referred to Waryam Singh v. Sham Dass I. L. R. 1984 (2) P&H. 398 and Raghbir Singh v. Lata Dina Nath Advocate 1961 (1) R C. R 57.

After hearing the learned Counsel for the parties, I do not find any merit in this petition. It could not be disputed that the building has become unfit and unsafe for human habitation as is evident from the evidence on the record and the inspection made by the Rent Controller. It is true that no inspection, note as such, was recorded by the Rent Controller but it is the common case of the parties that he had gone to the spot with the consent of both the praties, when both the parties jand their counsel were present. As a matter of fact, whether the building has become unfit or unsafe for human habitation or not, the spot inspection by the Rent Controller himself will speak for itself and the evidence led by the parties in support of their case was not of much relevance, because the witnesses produced by the parties do support the case, for which they appear. It would have been better, if the inspection note would have been recorded separately but, the absence of the inspection note as regards the facts of the present case, do not vitiate the concurrent findings of the authorities below based on the appreciation of the entire evidence. It was held in 1986(1) R. C. R. 57 (supra) that there is no bar to the Rent Controller inspecting the spot but that has to be done so as to appreciate the evidence which is brought on the record. Such inspection cannot form a substantive piece of evidence particularly, when no inspection note made by the Rent Controller, is available on the record. As observed, earlier, as regards the present case, the learned Rent Controller has observed that:

In view of the conflicting reports regarding the suit premises, I preferred to visit the spot and consequently, I inspected the spot in the presence of the parties and their counsel on the same day i.e. 8.5.1986. After inspecting the suit premises. I found the report Exhibit A1 of Shri K. L. Gupta and Report Exhibit A5 of Jagdev as correct. Even I found the worst condition of the suit premises than the condition depicted in the above reports. The majority of walls of the suit premises have bounded towards streets and there were bends in other walls. The majority of the battens used in the roof of the suit premises have been given support and if the support is removed, the 75% of the roof will fall down immediately on the withdrawal of the support. There were some big patches in the walls facing link street The patches were of big bricks whereas walls were of small bricks.

As a matter of fact it is not disputed that the building has not become unfit and unsafe for human habitation. What is being contended is that since in the earlier application, this ground was taken and the said application was dismissed as withdrawn, the application was not bona fide, 1 do not find any merit in this contention. u/s 14 of the Haryana Urban (Control of Rent and Eviction) Act. 1973, the Controller shall summarily reject any application under Sub-section (2) or (3) of Section 13 which raises substantially the issues as have been finally decided in any former proceedings under this Act. Admittedly, in the earlier ejectment application the ground of the building being unfit and unsafe for human habitation was never finally decided as the same was dismissed as withdrawn.

Reference may also be made to Sub-section (4) of Section 13 of the Act, which provides that:

The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller, and if the Controller is is not so satisfied, he shall make an order rejecting the application.

Here the reference is to the bona fides of the claim of the landlady. The claim of the landlady is that the building has become unfit and unsafe for human habitation. If that claim is proved, it could not be successfully argued that the application is not bona fide. Under Sub-section (4) of Section 13, of the Act, what is to be seen is the claim made by the landlady in the ejectment application. Thus, I do not find any merits in this petition. Consequently, the same fails and is dismissed with costs. However, the tenants allowed three months time to vacate the premises provided all the arrears of rent, if any, are deposited with the Rent Controller, within one month and with a further undertaking in writing that after the expiry of the said period, vacant possession will be handed over to the landlady and rent for the said period will be paid in advance by the 10th of every month.