Civil Revision No. 5252 of 2009 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5252 of 2009 Date of decision : 23.3.2010 Rajender Kumar and another ....Petitioners Versus Vijay Kumar @ Pinki and others ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: None for the petitioner. Mr. B.R.Gupta, Advocate for the respondents. S. D. ANAND, J. The respondents-landlords had applied for eviction of the tenants from the tenanted premises on four counts i.e.non payment of rent, impairment of value and utility of the building, the building having been rendered unfit and unsafe for human habitation and personal bonafide necessity. Learned Rent Controller answered issues pertaining to personal bonafide necessity and condition of the building in favour of the respondents-landlords; while the other two issues were answered against the respondents-landlords. In appeal too, the learned Appellate Authority did likewise and affirmed the finding recorded by the learned Rent Controller. The petitioners-tenants are in revision against it. It is in evidence that the Building Expert AW-6 Suresh Kumar inspected the tenanted premises on 13.7.2007 in the Civil Revision No. 5252 of 2009 -2- ***** presence of the petitioner-tenant Rajinder Kumar. The expert completed inspection of southern portion of the premises but could not inspect the northern portion as Rajinder Kumar petitioner-tenant locked up the northern portion and left the spot unannounced in order to disable the expert from inspecting that part of the tenanted premises. It is on that account only that the expert had to again visit “tenanted premises on 26.11.2007 but, on that date as well, the needful could not be done as petitioner-tenant Rajinder Kumar remained absent from the premises. All these facts are noticed in inspection report Ex. P26 dated 26.11.2007. On his part, petitioner- tenant Rajinder Kumar feigned ignorance about whether the building expert inspected the building on 26.11.2007, he also could not indicate how much time was taken by the Building Expert on 13.7.2007for inspection. Insofar as the photographs are concerned, it requires pertinent notice that the petitioner-tenant Rajinder Kumar admitted in the course of cross-examination that photograph Ex.P14 is that of the rear portion of the tenanted premises and that photograph Ex. P8 to Ex. P15are also of the tenanted premises. He had no idea about when the hole occurred in the floor of the Chaubara. He also could not indicate whether it had occurred in July, 2005 but he did aver that with the appearance of the hole, his father who used to otherwise sleep in that room, stopped sleeping over there. It is also in his statement that on account of hole, they stopped visiting the Chaubara itself. It may not be out of place to notice here that in a suit for permanent injunction filed by the petitioners-tenants against the respondents-landlords, an Advocate Civil Revision No. 5252 of 2009 -3- ***** had been appointed a Local Commissioner. In that suit, which came to be dismissed as withdrawn, the Local Commissioner had observed that the tenanted premises was an old construction. (“that the last “khan” of the seems to be an old construction; that the “karries” of the last khan seems to be old; that the floor of the Chaubara over the last khan has developed various cracks and the floor has also bulged out at some pleases and has sinking at some places and that the roof of the Chaubara was covered with ply, which has swelled at some places”). It is in evidence that respondents- landlords had raised a plea, in the course of the written statement filed in that case, that the premises had become unfit and unsafe for human habitation. There was no adjudication of this part of controversy in that suit as it came to be dismissed as withdrawn on account of a technical defect which (defect) is neither apparent from the relevant order nor had it been proved on the file of this case. The petitioners-tenants did not examine any independent witness (expert or otherwise) to falsify the evidence adduced by the respondents-landlords in the relevant behalf. I have, thus, no reasons to differ with the finding recorded by the learned Rent Controller and also by the learned Appellate Authority to the effect that the tenanted premises have been proved to have become unsafe and unfit for human habitation. Insofar as the aspect of personal bonafide necessity is concerned, there also the petitioner-tenant is not on a firmer footing. The relevant observations made by the learned Appellate Authority are extracted hereunder:- Civil Revision No. 5252 of 2009 -4- ***** “I have considered the rival contentions of the parties and I find that the voter list showing Vijay Kumar as resident of house, is also during the pendency of the petition and no proof with regard to the earlier voter list has been produced. But even if it is taken that there are small rooms in a house building in 100 sq. yards and that house too is in the mother of the petitioner and the petitioner wants to shift on the first floor his shop i.e. in the premises in dispute after getting the repaired. I agree with the learned Rent Controller that there is no ground to disbelieve this part of the version given by the petitioner. As held by the Hon'ble High Court it is the landlord who is to decide as to it what manner he is to live and it is neither for the tenant nor for the Rent Controller to dictate terms to him. In view of the fact that petitioner has no other building in the city of Hansi and has not vacated any such building and he requires the first i.e. premises in dispute for his own occupation. I find that the ground of bonafide necessity is fully proved. Thus, the findings on both the issue qua these facts given by the learned Rent Controller are affirmed.” It is in evidence that the respondents-landlords Vijay Kumar has two children including a female child aged 17 years and a male child aged one year. In the course of deposition on oath, he also stated that relations between his wife and mother are strained and that he wants to buy peace by shifting over to the tenanted Civil Revision No. 5252 of 2009 -5- ***** premises. Insofar as the other respondent-landlord Vijay Kumar is concerned, he alongwith his children is residing with his mother Mst. Bimla and the total accommodation available at his disposal consists of two small rooms on the first floor with kitchen and a small courtyard. They also have one bed room and one wash room on the first floor. There is nothing wrong in the insistence on the part of the respondents-landlords as well to move out of the accommodation which is in the name of their mother. I see no reason to interfere in the finding of fact recorded by both the Courts repelling the plea raised by the petitioner-tenant that he had financed the construction of the tenanted premises in pursuance of an understanding with the father Puran Chand (father of respondents-landlords-Vijay Kumar alias Pinki and Ajay Kumar alias Babli) who had agreed that, in view of the funding of that construction, the tenant shall never ever be ejected and whenever he was inclined to vacate the tenanted premises, he would be entitled to claim the construction cost (Rs.80,000/-). The material obtaining on the file is not adequate to uphold that finding. Both the Forums appropriately negatived that plea. In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. The petitioners- tenant shall have two months time from today to vacate the premises aforementioned. March 23, 2010 (S. D. ANAND) Pka JUDGE