N.K. Kapoor, J.
1. This is tenant's revisionpetition against the order of appellate authority whereby the appeal filed against the order of Rent Controller dated 19-2-1990 was dismissed.
2. Briefly put, Raj Pal filed an ejectment application against the petitioner seeking eviction from a shop en the grounds that : (i) respondents have not paid or tendered rent from 16-8-84 to date at the rate of Rs. 100/- per month ; (ii) respondents have not paid or tendersd any house-tax from 16-8 1984 to date ; (iii) shop in dispute has become unsafe and unfit for human habitation ; and (iv) respondents have effected material alterations in the shop in dispute without the consent of the landlord.
3. In reply to the notice received from the court, the petitioner put in appearance, controverted the various allegations levelled and further contended that the earlier application filed for their eviction from the shop in dispute was dismissed by the Rent Controller vide order dated 5-3-1983. Not only this, the appeal preferred by the other side against the order of the Rent Controller too was dismissed. Once again another application was filed by erstwhile owner Sadhu Ram and the same was got dismissed as withdrawn. The petitionerstenants further challenged the rate of rent as now sought to be claimed by the landlord.
4. On the pleadings of the parties, the following issues were framed ;
(1) Whether there exists relationship of landlord and tenant between the petitioner and respondents OPA
(2) Whether the tender made by the respondent is valid OPD.
(3) Wheather the shop in dispute has become unfit.
(4) Whether the respondents made material alterations in disputed shop without consent of petitioner OPA.
(5) Whether the rent application is barred by the principle of resjudicata OPD
(6) Relief.
5. The Rent Controller allowed the application and passed an order of ejectment against the petitioner-tenants in view of his findings that shop in dispute is unfit and unsafe for human habitation and that they have made material alterations in the shop without the consent of the landlord. However, the Rent Controller held that the rate of rent was Rs. 40/- per mensem and not Rs. 100/- as claimed by Raj Pal landlord.
6. Before the appellate authority, both the points were convassed (i) with regard to the findings of the trial court that the building has become unfit and unsafe for human habitation ; (ii) tenant has effected material alteration without consent. The appellate authority once again examined the matter on the basis of evidence on record but did not find merit in any of the contentions raised by the counsel for the appellant and so dismissed the appeal vide order dated 22-1-1991.
7. Learned counsel for the petitioner has assailed the impugned orders of the authorities below on the ground that the same are wholly illegal, adjust and improper and so are liable to be set aside/reversed. According to the counsel, both the authorities have erred in law in not properly perusing the pleadings of the parties and the evidence led in support of their respective contention The conclusions arrived at are highly conjectural. Not only this, the evidence led by the respondent-landlord is beyond the pleadings. The fact that two earlier applications had already been dismissed by the courts has just been overlooked for no valid reason.
8. Elaborating, the counsel firstly drew the attention of the court to the averment made in the application with regard to the landlord's plea of the building having become unsafe and unit for human habitation and the material alterations made by the tenants without his consent. To appreciate the submission of the counsel, it would be proper to reproduce the averments in para No. 3 of the application which read as under :
'(iii) That the shop in dispute has become unsafe and unfit for human habitation
(iv) That the respondents have made material alterations in the shop in dispute without the consent of the petitioner.'
With some amount of vehemence, it has been contended by the learned counsel for the petitioner that except merely reproducing the essentials of Section 13, nothing has been said as to how and in what manner the building has become unfit for human habitation Similarly, nothing has been said by the petitioner as to the material alterations alleged to have been made by the tenant in the shop in dispute. Not only this, oeven by means of replication, no particulars have been furnished with regard to the plea raised in para 3(iii). Even with regard to para 3 (iv) (as per replication) the case of the landlord is that respondents have constructed the wall by demolishing the kutcha wall on the southern side and have also placed one girder across the roof of the shop by replacing wooden shateer and under these circumstances, they are liable for ejectment from the shop in dispute. However, the evidence led, i.e., the petitioner's statement as well as the state- ment of the Expert examined to prove the contentions raised, nowwhere refer to the southern wall. This way, their evidence being against the pleadings ought to have been ignored by the authorities below.
9. The crucial issue in the present case is as to whether the finding of the courts below that building has become unfit and unsafe for human habitation is in any manner vitiated, and is thus liable to interference in revisional jurisdiction. For this, learned counsel urges that both the authorities have, glossed over the earlier litigation between the parties. The decision of the Rent Controller and such other attendant circumstances which totally belie the stand taken and accepted by the authorities below In this regard, the counsel referred to the order of the Rent Contr Her dated 5-3-1983 Ex. R-5 In this eviction application, one of the issues pertained to as to whether the premises have become unsafe and unfit for human habitation and whether he wants to re construct the same. The Rent Controller held under this issue as follows :
'In support of this issue, it was stated by the petitioner (AW-1 that this shop is in khasta condition and is not fit and safe for human habitation. There are cracks in the walls which are kacha one. One khan of this shop has already fallen down. This is the only evidence produced by the petitioner. Re has not examined any expert regarding the condition of this shop. His statement fully stand rebutted by the statement of Bhim Sain respondent (RW-1). He stated that this shop is in perfect condition and is fit and safe for human habitation. On that aspect, he has been supported by Sher Singh (RW-2). He stated that the condition of the shop is good. He denied the suggestion of the petitioner that there are cracks in the walls. Had there been any cracks in the walls or had the condition of the shop been khasta, the petitioner must have examined some expert or must have produced some evidence in support of his contention. It can easily be concluded from the evidence produced on the record that shop is fit and safe for human habitation. The bare statement of the petitioner cannot be taken enough for coming to the con lusion that the shop has become unfit and unsafe for human habitation. This issue is, therefore, decided in favour of the respondent and against the petitioner.'
Having failed in his attempt to get the tenant evicted once again Sadhu Ram. ertswhile owner, filed a petition before the Rent Controller on 4-8-1984 on the ground that the building has become unfit and unsafe for human habitation and he requires the same for re-construction. It was further averred that respondents have committed such acts, i. e., have constructed a projection in front of the shop towards the east and have constructed a new room on the back room towards the west and have also put the girders by making appartures and holes in the walls without the consent of the petitioner and thus, have materially impaired the value and utility of the premises in dispute--Ex. R-7. But this application was got dismissed as withdrawn vide order dated 21-11-1985--Ex. R-6. The decision of the Rent Controller Ex. R-5 and order of dismissal of the petition as withdrawn Ex. R-7 debars the petitioner to agitate the matter afresh in view of the specific bar of Section 14 of the East Punjab Urban Rent Restriction Act, 1949. Both these grounds now sought to be urged, i. e., the building has become unfit and unsafe for hum in habitation and the tenant has effected material alterations in the shop in dispute, were the subject matter of the adjudication in both the previous proceedings and this way, the authorities below erred in ignoring the objection raised and so wrongly proceeded to assess the evidence which is legally impermissible.
10. Learned counsel for the respondent, however, has contended that the earlier order of Rent Controller dated 5-3-1983 is no bar to the filing of the present petition in any manner. A bare perusal of the operative part reveals that the Rent Controller decided against Sadhu Ram primarily for the reason that no Expert was examined to prove that the building is unsafe and unfit for human habitation or the tenant is proved to have effected material alterations in the building in dispute. As regards the second eviction application which was dismissed as withdrawn, the counsel contends that there was no decision on merits and thus, the same cannot be construed as debarring the applicant/landlord from seeking eviction on the grounds well proved on the basis of evidence.
11. Lastly, the counsel contended that since the petitioner has sought eviction of the shop in dispute on the ground that the same has become unfit and unsafe for human habitation on account of further deterioration of the building, such a circumstance can be considered independently of the earlier two petitions on the basis of evidence led. The precise submission is that in view of the change in the circumstances the earlier decision of the Rent Controller Ex. R-5 and dismissal of the application vide Ex. R-7 nowhere debars the petitioner to agitate the matter once again.
12. I have carefully considered the respective submissions made by both the counsel and have perused the relevant material placed on record.
13. Section 14 of the East Punjab Urban Rent Restriction Act, 1949 is in the following terms : -
'The Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 13 which raises substantially the issues as have been finally decided in a former proceeding under his Act.'
That is to say that in case the Rent Controller is of the view, the matter now sought to be raised had in fact been decided earlier in a petition between the parties, the latter is not maintainable in view of the bar of Section 14 of the Act. There is no denying the fact that the application for eviction on the ground that the building has become unfit and unsafe, for human habitation was subject- matter of adjudication before the Rent Controller who decided the same against the land-owner vide order dated 5-3-1983, Ex. R 5. In this petition, specific issue was to the effect as to whether the premises have become unsafe and unfit for human habitation. He wants to construct the same. The conclusion of the court has already been referred to by the learned counsel for the petitioner which is in the earlier part of the judgment. Not only this, the subsequent application filed for eviction in the year 1984 too sought eviction of the respondent on the ground that the property in dispute is unfit and unsafe for human habitation and require reconstruction besides other grounds which are not relevant for this inquiry. The relevant para containing this averment is reproduced as under :--
'(iii) That the property in dispute is unfit and unsafe for human habitation and requires reconstruction. The premises in dispute are very old dilapidated and in runies stage and are breaking up, and have been so weakened in their structure by age and they need immediate demolition and reconstruction. The building work is so extensive and fundamental in character that the same cannot bs carried out if the respondent/tenant remained in possession. The petitioner is possessed of necessary arrangements and means in connection with the rebuilding and reconstruction and this cannot be done until the petitioner obtains possession and demolish the existing structure. Apart from the danger to those who use the building, any other postponement of its reconstruction is likely to cause more in terms of money to the owner to have the needful done later and as such the petitioner honestly requires for rebuilding and reconstruction the premises in dispute.'
In this petition, the landlord further made averment to the effect that in the earlier ejectment application, the contention of the petitioner that the building has became unfit and unsafe for human habitation was not accepted on account of non-examination of the Expert, this way, it was averred that in view of the changed circumstances, the decision in the obovesaid ejectment application does not preclude and debar the petitioner to file a genuine petition. Strange enough, the petitioner-landlord on his own made a statement to the effect that the petition be dismissed as withdrawn and so the Rent Controller in view of the statement made by the landlord dismissed the same vide order dated 21-11-1985, Ex. R-6 The present application is almost on identical grounds. There is no evidence on record to suggest that the building his become unsafe and unfit on account of such circumstances which might have happened after the dismissal of the application vide order dated 21-11-1985 and institution of this application, i. e. 5-2-1987. So, unless there is clear evidence with regard to the material impairment to the shop in between November 1985 to February, 1987 or the shop having become unfit and unsafe for human habitation, earlier petition would debar the petitioner to seek eviction of the respondent on identical issues which in any case were decided by the Rent Controller vide Ex R-5. The evidence in this regard is not very helpful The impugned orders are unsustainable on this ground alone. Since both the courts have examined the evidence led by the parties including the bar of Section 14 of the Act, it would be just and proper to examine as to whether any impropriety has been committed by the authorities below while evaluating the evidence.
14. Learned counsel for the petitioners contends that the Rent Controller as well as the appellate authority have erred in concluding that the shop has become unfit and unsafe for human habitation and the respondent is consequently liable for materially impairing the shop According to the counsel, even if whole of the evidence led by the petitioners is scanned in proper perspective,- no such conclusion is justifiable in the present case. The counsel has highlighted the contradictions in the evidence led and the conclusions arrived at by the Rent Controller and the appellate authority. As per averment made in the application, it is the southern wall of the shop in dispute which was stated to have fallen. However, as per the Expert examined by the landlord and the conclusion of the appellate authority, it is the northern wall of the room which has fallen. The counsel for the respondent when asked to clarify this patent contradiction stated that this being a typing error, the evidence led by the parties should be examined accordingly. I find no merit in this submission of the learned counsel for the respondent. As per petitioner's case it is the southern wall which has fallen for which there is no material on the record. Even with regard to the northern wall, counsel for the petitioners urges that his client cannot be made liable for the acts of the third party. According to him, one Des Raj has a shop adjacent to the shop in dispute who has built wall of his own. This way, both the authorities have erred in law in concluding that the northern wall of this shop has fallen The observation of the learned appellate authority in this regard needs reference :
'In the instant case, the shop in question is unfit and unsafe for human habitation. Northern wall of the shop in question which is common with the shop of Des Raj has fallen. Roof of the shop of Des Raj has fallen. Girders of the roof of the shop in question are supported by themmis This is so because common wall situated on the north of the shop in question common with Des Raj is not able to carry the weight of the roof of the shop in question. Roof of the shop of Des Raj resting on that wall has fallen as admitted by Bhim Sain and Nardosh Kumar. If that is so, the roof of the shop in question resting on that wall is also likely to fall. x x x.'
Similarly, Didar Singh, another adjoining neighbour of the petitioners took measures to strengthen his kachha wall which too has been taken as a circumstance for holding that the shop is in a dilapidated condition. The petitioner in support of his contention relied upon Kan war Sain v. Main Ram, 1989 (2) Rent C. R. 325 and contended that even if one wall of the shop had in fact fallen whereas other walls of the room were in tact, such a shop cannot be said to have become unsafe, and unfit for human habitation. Another judgment relied upon by the counsel Piara Lal v. Kewal Krishan Chopra, A. I. R. 1988 S. C. 1432, is for the proposition that even if roof of one of the rooms has fallen down and there being no evidence that the remaining building was in a dilapidated condition, such a building cannot be said to be unfit and unsafe for human habitation.
15. Counsel for the respondent, however, has argued that in view of the concurrent findings of the courts below with regard to ,the state of building that the same has become unsafe and unfit for human habitation, the revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant its own conclusions. There is no denying the fact that the power of a revisional court is somewhat limited and cannot be equated with the appellate jurisdiction of the court but all the same powers under Section 15(4) of the Act are wider than the revisional powers under Section 115 of C. P. C. Section 15 sub clause (5) empowers the court to examine the record/proceedings for the purpose of satisfying itself to the legality or propriety of any order which may have been passed in relation thereto as it may deem fit. In the instant case, the evidence led is at variance with the pleadings. Even the alleged impairment of the shop has been inferred from the activities of the neighbours, namely, Didar Singh and Des Raj who on their own and with a view to safeguard their shops took measures to strengthen the wall on their side. Merely for the reason that shop is 50/60 years old is itself no ground to conclude that the same his become unsafe and unfit for human habitation It cannot also lost sight of the fact that the landowner is seeking eviction of the respondent from the shop since the year 1981 when first eviction application was filed. Despite their assertion, the building has remained intact during all these 10/11 years.
16. For the reasons stated above, I have no hesitation in holding that both the authorities have not properly perused the evidence and this way their conclusion are clearly vitiated and so liable to be set aside. I accordingly accept the revision-petition, set aside the order of Rent Controller and the appellate authority and dismiss the application filed by the respondent-landlord. The parties are left to bear their own costs.