Sita Ram Bansal Vs. Niranjan Dass and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/632630
SubjectTenancy
CourtPunjab and Haryana High Court
Decided OnOct-16-2002
Case NumberCivil Revision No. 2714 of 1993
Judge Hemant Gupta, J.
Reported in(2003)133PLR416
ActsHaryana Urban (Control of Rent and Eviction) Act, 1973 - Sections 13(3) and 15(6)
AppellantSita Ram Bansal
RespondentNiranjan Dass and anr.
Appellant Advocate M.L. Sarin, Sr. Adv. and; Sabina Pannu, Adv.
Respondent AdvocateNone
DispositionPetition dismissed
Excerpt:
- hemant gupta, j. 1. this is a tenant's petition challenging the order of ejectment passed by the courts below on the ground that the building hasbecome unfit and unsafe for human habitation.2. the respondent-landlords have sought the ejectment of the tenant on the ground that he is a tenant of a shop bearing no. 5402/3 and of balakhana. the balakhana in fact situated over shop no. 5398-5399. it was the case of the landlords that his grand-father of the petitioner was inducted as a tenant in the year 1939 and that the building has become unfit and unsafe for human habitation. it is relevant to reproduce the grounds of ejectment which read as under:'(ii) that the premises mentioned above has become unfit and unsafe for human habitation as the large portion of the roof which constituted the courtyard of chaubara has since fallen down and the roof of the chaubara under his occupation is in a dilapidated condition and the respondent, without the written consent of the petitioners, replaced some of the karis of one of the chaubara mark 'a' with 'tors' and has replaced the roof of the other chaubara marked 'b' by replacing wooden stairs by iron girdars and the respondent, without the written consent of the petitioners removed the archeas and raised the level of the floor and also replaced the roof of the shop in his occupation, thereby materially impaired the value and utility of the premises in question.'3. the respondent denied the allegation that the roof of chaubara is in dilapidated condition or that the respondent has replaced any of the karis or any of the chaubara or that the respondent is trying to replace the wooden sehteer by iron girdars. the respondent also denied the replacement of the roof of the shop under his tenancy.4. in support of his case the landlord appeared as a.w.3 as also produced krishan lal khurana a.w. 1 to prove the dilapidated condition of the building to seek ejectment of the tenant on the ground that the building has become unfit and unsafe for human habitation. a.w. 1 krishan lal khurana proved on record his report ex.p.1 regarding the condition of the building. on the other hand, the tenant himself appeared as r.w.1 and closed his evidence.5. before adverting to the controversy on merits it may be pointed out that the star argument of the petitioner was that the tenant has entered into a compromise with the petitioner in the last week of february, 1991 wherein he surrendered possession of balakhana. in terms of the compromise, the landlord is alleged to have demolished the shop itself and not only the balakhana. it was further stated that the tenant has carried out repairs over the property. the tenant further alleged that at the time of compromise amar nath and kamal kumar were present at the spot and amar nath was brought by the petitioner. however, recording of such evidence was objected to by the landlord and the following note was recorded at the footnote of the examination-in-chief: 'all the facts are beyond the scope of pleadings and the witness is directed to state only the pleaded facts'. it may further be pointed out that the landlord appeared as a.w.3 on 19.2.1991.6. learned rent controller relied upon the report of krishan lal khurana a.w. 1 to hold that the building is unfit and unsafe for human habitation. the rent controller also found that the respondent has concocted a story regarding the compromise. the appellate authority affirmed the findings recorded by the rent controller after rejecting the argument of the tenant that a.w. 1 is not civil engineer and therefore, his report and testimony regarding the condition of the building cannot carry any weight. learned appellate authority relied upon the statement of a.w. 1 corroborated by the photographs of the premises and the sworn testimony of a.w.3 held that the portion of the building has already fallen down. the mortar has lost its cohesive strength and the plaster has fallen down. the structure may crumble and fall at any time and a large portion of the building has already fallen and the roof portion is in a highly dilapidated condition and thus maintained the order of eviction.7. the order of ejectment has been assailed on the ground that there is no rebuttal tothe stand of the tenant regarding the compromise between the parties whereby the tenant has not only surrendered the possession of balakhana but also after such surrender the landlord has demolished the building. the landlord has also permitted the tenant to carry out repairs, in spite of such evidence being led, the landlord has not chosen to rebut such evidence and thus the ejectment petition should have been dismissed as the repairs has been carried out and the building is fit for human habitation.8. the argument of the petitioner is wholly misconceived and deserves to be rejected. the landlord has appeared as witness in the witness box on 19.2.1991 and therefore, the petitioner has alleged compromised in the last week of february, 1991. the said compromise is alleged to have been arrived at in the presence of amar nath and kamal kumar. however, none of them has been produced in evidence. it is impossible to imagine a compromise having entered into by the landlord after close of his evidence and the parties have accepted such compromise without brining it to the notice of the court before whom the petition was pending. it may be pointed out that the tenant herein is aware of the legal technicalities and procedure, he being an advocate himself. apart from such unreliable untrustworthy and concocted story of compromise, the tenant has not raised such plea giving an opportunity to the landlord to controvert such stand. as a matter of fact when such facts were stated in the examination-in-chief it was objected to. however, the tenant took no step to seek amendment of the pleadings so as to make such statement admissible in evidence, therefore, the story having entered into an compromise in the last week of february, 1991 is nothing but an excuse introduced by the tenant to delay the proceedings. the stand not only lacks bona fide but is also mischievous.9. the petitioner has then assailed the findings of the courts below on the ground that krishan lal khurana is not an expert as he is only a draftsman. in support of his contention, he has relied upon 1993(1) rent control reporter 189 to contend that the draftsman cannot be called an expert. however, such argument is not tenable. the witness as a.w. 1 has stated that he holds a diploma in draftsman and also has qualified departmental examination for s.d.o. he has served for 33 years in punjab government as engineer. he has also stated that the departmental examination which he has passed is equivalent to degree course as that of s.d.o.10. apart from such qualification, i am quite satisfied that the manner in which report is given shows that the witness is well versed in the nature of technicalities about the condition of building. the detailed report submitted by the witness examines each and every aspect of the condition of the building. he has mentioned that shop no. 5402/3 is consisting of 4 portions. walls of the first portion is built up of standard size bricks with mud mortar. the earth of mud mortar used in wall had lost its cohesive strength due to old age. in respect of second to 4th portion of the shop again the witness has reported that the earth of mud mortar has lost its cohesive strength. it has been further reported that the corrugated sheets on the first portion is also rotten laid on wooden phatties in slopes. regarding the roof of second to 4th portion of shop, the witness has reported that all roofs are mud roof consisting of a layer of earth on wooden phatties (boards) resting on wooden karies except portion of 3rd of shop in which wooden karis in their turn, rests on one wooden sleeper. it has been reported that there are two wooden beams between second and 3rd portion of shop. out of which one beam is sagged, cracked and rotten and other one seems to be replaced recently. even wooden phatties and wooden karis of all second to fourth portions of the shop are rotten and have outlived their normal span of life and are in dilapidated condition. regarding the upper storey building i.e. balkhana, it has been reported that the roof is built of corrugated sheets in sloping which are seen as broken, rotten and sagged. roof of the right side room has fallen, whereas other roof on the back of the front varandah is also in dilapidated condition. the wooden phatties and karis of roof are rooten and outlived. even the earth of the mud mortor used in walls had lost its cohesive strength. it is further reported that the roof can fall at any time;11. this witness a.w. 1 was cross-examined at length. however, the tenant could not substantially dispute the nature of the building. a.w.3 niranjan dass has also deposed that chaubara i-e. balakhana has fallen. the walls can fall at any time. even the wooden karis replaced by the respondent have also fallen.12. in the absence of compromise, the argument of the petitioner was that it is thebalakhana or the adjoining building which was in dilapidated condition and that thebalakhana is not a substantial part of the building and therefore, even if the balakhanahas fallen it cannot be said that the entire tenanted building has become unfit and unsafefor human habitation and thus, the order of the trial court cannot sustain, the tenantedbalakhanna measures 33'6' (11' + 12'6' x 22'3' whereas the shop portion measures39'9 9,'x11'6' as per site plan ex.p.3. it is, thus, apparent that balakhana is a substantial part of the building. even otherwise not only balakhana but the shop no. 5402 itselfhas been reported to be unfit and unsafe for human habitation. the report, as disdussedabove, details the condition of the shop no. 5402. the courts have found the conditionof the building as unfit and unsafe for human habitation. as a matter of fact the balakhana has fallen whereas the condition of the shop even after repair i.e. plaster on thewalls which cannot restore the cohesive strength of mud mortor with which walls havebeen raised.13. consequently, i find no ground to interfere with the findings recorded by the twocourts below. therefore, the present petition is dismissed. however; i grant threemonths time to the tenant to vacate the demised premises provided the tenant furnishesan undertaking before the trial court within one month from today undertaking to handover the physical vacant possession of the premises to the petitioner and to pay the entire arrears of rent and continue to pay monthly rent till eviction of building, failure ofwhich entitle the landlord to seek the execution of the order.
Judgment:

Hemant Gupta, J.

1. This is a tenant's petition challenging the order of ejectment passed by the courts below on the ground that the building hasbecome unfit and unsafe for human habitation.

2. The respondent-landlords have sought the ejectment of the tenant on the ground that he is a tenant of a shop bearing No. 5402/3 and of Balakhana. The Balakhana in fact situated over shop No. 5398-5399. It was the case of the landlords that his grand-father of the petitioner was inducted as a tenant in the year 1939 and that the building has become unfit and unsafe for human habitation. It is relevant to reproduce the grounds of ejectment which read as under:

'(ii) That the premises mentioned above has become unfit and unsafe for human habitation as the large portion of the roof which constituted the courtyard of Chaubara has since fallen down and the roof of the Chaubara under his occupation is in a dilapidated condition and the respondent, without the written consent of the petitioners, replaced some of the Karis of one of the Chaubara mark 'A' with 'tors' and has replaced the roof of the other chaubara marked 'B' by replacing wooden stairs by iron girdars and the respondent, without the written consent of the petitioners removed the Archeas and raised the level of the floor and also replaced the roof of the shop in his occupation, thereby materially impaired the value and utility of the premises in question.'

3. The respondent denied the allegation that the roof of chaubara is in dilapidated condition or that the respondent has replaced any of the karis or any of the chaubara or that the respondent is trying to replace the wooden sehteer by iron girdars. The respondent also denied the replacement of the roof of the shop under his tenancy.

4. In support of his case the landlord appeared as A.W.3 as also produced Krishan Lal Khurana A.W. 1 to prove the dilapidated condition of the building to seek ejectment of the tenant on the ground that the building has become unfit and unsafe for human habitation. A.W. 1 Krishan Lal Khurana proved on record his report Ex.P.1 regarding the condition of the building. On the other hand, the tenant himself appeared as R.W.1 and closed his evidence.

5. Before adverting to the controversy on merits it may be pointed out that the star argument of the petitioner was that the tenant has entered into a compromise with the petitioner in the last week of February, 1991 wherein he surrendered possession of Balakhana. In terms of the compromise, the landlord is alleged to have demolished the shop itself and not only the Balakhana. It was further stated that the tenant has carried out repairs over the property. The tenant further alleged that at the time of compromise Amar Nath and Kamal Kumar were present at the spot and Amar Nath was brought by the petitioner. However, recording of such evidence was objected to by the landlord and the following note was recorded at the footnote of the examination-in-chief: 'All the facts are beyond the scope of pleadings and the witness is directed to state only the pleaded facts'. It may further be pointed out that the landlord appeared as A.W.3 on 19.2.1991.

6. Learned Rent Controller relied upon the report of Krishan Lal Khurana A.W. 1 to hold that the building is unfit and unsafe for human habitation. The Rent Controller also found that the respondent has concocted a story regarding the compromise. The Appellate Authority affirmed the findings recorded by the Rent Controller after rejecting the argument of the tenant that A.W. 1 is not Civil Engineer and therefore, his report and testimony regarding the condition of the building cannot carry any weight. Learned Appellate Authority relied upon the statement of A.W. 1 corroborated by the photographs of the premises and the sworn testimony of A.W.3 held that the portion of the building has already fallen down. The mortar has lost its cohesive strength and the plaster has fallen down. The structure may crumble and fall at any time and a large portion of the building has already fallen and the roof portion is in a highly dilapidated condition and thus maintained the order of eviction.

7. The order of ejectment has been assailed on the ground that there is no rebuttal tothe stand of the tenant regarding the compromise between the parties whereby the tenant has not only surrendered the possession of Balakhana but also after such surrender the landlord has demolished the building. The landlord has also permitted the tenant to carry out repairs, in spite of such evidence being led, the landlord has not chosen to rebut such evidence and thus the ejectment petition should have been dismissed as the repairs has been carried out and the building is fit for human habitation.

8. The argument of the petitioner is wholly misconceived and deserves to be rejected. The landlord has appeared as witness in the witness box on 19.2.1991 and therefore, the petitioner has alleged compromised in the last week of February, 1991. The said compromise is alleged to have been arrived at in the presence of Amar Nath and Kamal Kumar. However, none of them has been produced in evidence. It is impossible to imagine a compromise having entered into by the landlord after close of his evidence and the parties have accepted such compromise without brining it to the notice of the court before whom the petition was pending. It may be pointed out that the tenant herein is aware of the legal technicalities and procedure, he being an Advocate himself. Apart from such unreliable untrustworthy and concocted story of compromise, the tenant has not raised such plea giving an opportunity to the landlord to controvert such stand. As a matter of fact when such facts were stated in the examination-in-chief it was objected to. However, the tenant took no step to seek amendment of the pleadings so as to make such statement admissible in evidence, therefore, the story having entered into an compromise in the last week of February, 1991 is nothing but an excuse introduced by the tenant to delay the proceedings. The stand not only lacks bona fide but is also mischievous.

9. The petitioner has then assailed the findings of the courts below on the ground that Krishan Lal Khurana is not an expert as he is only a draftsman. In support of his contention, he has relied upon 1993(1) Rent Control Reporter 189 to contend that the draftsman cannot be called an expert. However, such argument is not tenable. The witness as A.W. 1 has stated that he holds a diploma in Draftsman and also has qualified Departmental Examination for S.D.O. He has served for 33 years in Punjab Government as Engineer. He has also stated that the Departmental Examination which he has passed is equivalent to degree course as that of S.D.O.

10. Apart from such qualification, I am quite satisfied that the manner in which report is given shows that the witness is well versed in the nature of technicalities about the condition of building. The detailed report submitted by the witness examines each and every aspect of the condition of the building. He has mentioned that shop No. 5402/3 is consisting of 4 portions. Walls of the first portion is built up of standard size bricks with mud mortar. The earth of mud mortar used in wall had lost its cohesive strength due to old age. In respect of second to 4th portion of the shop again the witness has reported that the earth of mud mortar has lost its cohesive strength. It has been further reported that the corrugated sheets on the first portion is also rotten laid on wooden phatties in slopes. Regarding the roof of second to 4th portion of shop, the witness has reported that all roofs are mud roof consisting of a layer of earth on wooden phatties (boards) resting on Wooden Karies except portion of 3rd of shop in which wooden karis in their turn, rests on one wooden sleeper. It has been reported that there are two wooden beams between second and 3rd portion of shop. Out of which one beam is sagged, cracked and rotten and other one seems to be replaced recently. Even wooden phatties and wooden karis of all second to fourth portions of the shop are rotten and have outlived their normal span of life and are in dilapidated condition. Regarding the upper storey building i.e. Balkhana, it has been reported that the roof is built of corrugated sheets in sloping which are seen as broken, rotten and sagged. Roof of the right side room has fallen, whereas other roof on the back of the front varandah is also in dilapidated condition. The wooden phatties and karis of roof are rooten and outlived. Even the earth of the mud mortor used in walls had lost its cohesive strength. It is further reported that the roof can fall at any time;

11. This witness A.W. 1 was cross-examined at length. However, the tenant could not substantially dispute the nature of the building. A.W.3 Niranjan Dass has also deposed that chaubara i-e. Balakhana has fallen. The walls can fall at any time. Even the Wooden karis replaced by the respondent have also fallen.

12. In the absence of compromise, the argument of the petitioner was that it is theBalakhana or the adjoining building which was in dilapidated condition and that theBalakhana is not a substantial part of the building and therefore, even if the Balakhanahas fallen it cannot be said that the entire tenanted building has become unfit and unsafefor human habitation and thus, the order of the trial court cannot sustain, the tenantedBalakhanna measures 33'6' (11' + 12'6' x 22'3' whereas the shop portion measures39'9 9,'x11'6' as per site plan Ex.P.3. It is, thus, apparent that Balakhana is a substantial part of the building. Even otherwise not only Balakhana but the shop No. 5402 itselfhas been reported to be unfit and unsafe for human habitation. The report, as disdussedabove, details the condition of the shop No. 5402. The courts have found the conditionof the building as unfit and unsafe for human habitation. As a matter of fact the Balakhana has fallen whereas the condition of the shop even after repair i.e. plaster on thewalls which cannot restore the cohesive strength of mud mortor with which walls havebeen raised.

13. Consequently, I find no ground to interfere with the findings recorded by the twocourts below. Therefore, the present petition is dismissed. However; I grant threemonths time to the tenant to vacate the demised premises provided the tenant furnishesan undertaking before the trial court within one month from today undertaking to handover the physical vacant possession of the premises to the petitioner and to pay the entire arrears of rent and continue to pay monthly rent till eviction of building, failure ofwhich entitle the landlord to seek the execution of the order.