CR No. 40 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 40 of 2010 (O&M) Decided on : 16-09-2010 Laxmi Narian ....Petitioner VERSUS Jagdish Kumar Kapoor ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. H.S.Batth, Advocate for the petitioner. Mr. Vikas Singh, Advocate for the respondent MAHESH GROVER, J This revision petition is directed against the orders of the Rent Controller dated 6.8.2008 and that of the learned Appellate Authority dated 17.11.2009. The respondent-landlord moved a petition under Section 13 of the East Punjab Urban Rent Restriction Act praying that the demised premises which is a shop has become unfit and unsafe for human habitation and sought eviction of the petitioner and other grounds such as non-payment of rent was also taken by the said respondent. The petitioner controverted the averments made in the petition and while admitting the tenancy denied that the building was un-safe for human habitation. The rent was duly deposited which rendered ground of non-payment of rent as redundant. Consequently, parties went to trial on the following issues:- 1) Whether the respondent was in arrears of rent w.e.f CR No. 40 of 2010 (O&M) 2 16.6.1992 @ Rs.35 per month and if so its effect? OPA 2) Whether the demised premises has become unfit and unsafe for human habitation and if so, its effect?OPA 3) Whether the petitioner is entitled to seek eviction order against the respondent?OPA 4) Whether the petitioner has no locus standi to file the present petition?OPR 5) Whether there exists no relationship of landlord and tenant between the parties? OPR 6) Relief. Rent Controller and Appellate Authority both concluded that building was unsafe for human habitation and hence ordered eviction of the petitioner which has resulted in the filing of the instant petition wherein petitioner has contended that prior to the filing of the instant petition, respondent-landlord has filed a petition for eviction on the ground of personal necessity which is subject matter of revision petition before this Court. He further contended that the present petition is a mala fide exercise on the part of the respondent-landlord because when he moved petition for his eviction on the ground of personal necessity, he did not pray that building was unfit for human habitation and therefore he was precluded from taking such a ground now. Report of expert witness has been produced by both the petitioner and the respondent. These reports are at variance with each other. Therefore, Rent Controller and the Appellate Authority could not have relied upon the report and expert produced by the respondent so as to order his eviction. He thus contended that the orders of the learned Rent Controller and Appellate Authority are CR No. 40 of 2010 (O&M) 3 erroneous and are liable to be set aside. On the other hand, learned counsel for the respondent contended that the evidence of the expert witness concluded that building is unfit and also produced photographs on record that possession of the building is indeed such that human safety is threatened. He further contended that the expert witness produced by the petitioner cannot be relied upon as the respondent-landlord was not associated with it and further that the said witness has stated that he had based his opinion on the basis of the photographs which he did not produce on record. He next contended that both the expert witnesses had concluded that building in any case is more than 100 years old. I have heard learned counsel for the partoes. Learned counsel for respondent pleads that building is unfit for human habitation and to substantiate his plea, he produced expert witness in the shape of M.R.Anand who was appointed by Court to undertake inspection of the demised premises. In this report, the petitioner was also associated and if this report is to be perused the dismal state of affairs in so far as the building is concerned is clearly reflected. It was stated in both the reports that building is more than 100 years old. Expert witness observed as follows:- “The walls of the demised premises are made of Nanak Sahi/bricks laid in mud mortar. The walls are plastered with mud mortar, big chunks of mud plaster has falled down from the walls. Most of the joints are naked. The material used in the construction of the demised premises has lost its strength and adhesive power. The material from CR No. 40 of 2010 (O&M) 4 the joints is coming out easily, vertical and horizontal cracks have developed in the walls of the demised premises. The walls are not standing upright, but have buldged out. The roofs of the demised premises are made of wooden battens and wooden phatties. The wood used in the construction of the roof is in a broken, damaged and eaten up by white ants conditions. Additional support in the shape of wooden shutter of a door and a wooden beam have been provided to the falling down rood in the back portion and in the front portion of the shop. The roof has sagged down at many places. The wood used in the construction of doors and windows is in a damaged and broken condition. The floor of the demised premises is made up of bricks in the back portion and of cement concrete in the front portion of the demised shop. The floor is in damaged and broken condition and full of pit holes. The bricks are lying loose. The floor has settled down at many places. The entire back portion of the demised premises has already been fallen down and the malba of the roofs of first floor and ground floor is lying on the floor of the ground floor, whole of the rain water goes to the foundation and walls of the demised premises as the back portion of the demised premises has already fallen down, causing damage to the walls of the demised premises. The room above the premises is in a abandoned condition and is inapproachable from any side as shown in CR No. 40 of 2010 (O&M) 5 the plan. The terrace of the demised premises of the front portion is pucca with tiles/bricks. The tiles/bricks are lying loose and has settled down at many places. After the inspection, I am of the view that due to falling down of the major portion of the demised premises, the material used has lost its strength and adhesive power. The demised premises has out lived its life and utility and has become unsafe, unfit and unsound for human habitation. It is beyond repair and requires reconstruction from the foundation level.” This witness was cross-examined at length by the petitioner but his testimony could not be shattered. In contradistinction, the report of the witness produced by the petitioner could not be relied upon because neither respondent was associated with it nor he was cross-examined. In this view of the matter, report of M.R Anand appointed by Court is more credible and can be relied upon. Having regard to the fact that report clearly indicates that building is unfit for human habitation there is no reason to differ with the findings recorded by both the Courts below. Even otherwise this is a pure question of fact which cannot be interfered with in Revisional jurisdiction. Contention of the learned counsel for the petitioner that present petition by the respondent-landlord is malicious as he did not take up this plea when he filed earlier petition for eviction of the petitioner on the ground of personal necessity is to be noticed to be rejected. The CR No. 40 of 2010 (O&M) 6 provision of Section 13 of the Rent Act provides separate grounds on which landlord can seek eviction of the tenant and merely because he choses one ground while ignoring another cannot be construed to mean that he has waived off his right to seek eviction on other grounds or that petition on another ground is malicious exercise. Finding no infirmity with the impugned orders, the instant petition is dismissed and the petitioner is ordered to be evicted from the premises in question. Ordered accordingly. September 16, 2010 (Mahesh Grover) rekha Judge