Civil Revision No.2721 of 1999 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2721 of 1999 Date of decision: September 06, 2010. Jagdish Rai & Ors. ...Petitioner(s) v. Ved Parkash ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ashok Gupta, Advocate, for the petitioner(s). Shri S.K. Singla, Advocate, for the respondent. Kanwaljit Singh Ahluwalia , J. Petitioner-landlords, who failed to cause eviction of the respondent-tenant, before the Rent Controller, were also unsuccessful in the appeal instituted by them and have assailed the finding recorded by both the two courts below, that no ground was made out to cause ejectment of the respondent-tenant from the shop in dispute. Shri Milkh Chand was the owner of the shop in dispute and after his death, petitioners, being the legal heirs, became landlords of the shop in dispute. It was stated in the eviction petition that the respondent- tenant admitted the petitioners as landlords and executed a rent deed dated 21.4.1972 in favour of the petitioners. The shop has been fully described in the head note of the eviction petition. Respondents were tenants since the Civil Revision No.2721 of 1999 -: 2 :- year 1961 at the rate of Rs.800/- per month. The eviction petition was filed on the following grounds:- (a) that the tenant is in arrears of rent from 2.5.1989 to 1.5.1990 and he has also not paid the house tax; and (b) that the demised shop being quite old and in dilapidated condition, had become unfit and unsafe for human habitation. Therefore, the building being unsafe and unfit for human habitation, was the ground pressed to secure eviction of the tenant. On appearance, respondent filed reply to the eviction petition and stated that earlier a similar eviction petition was dismissed as withdrawn on 11.2.1977 and therefore again eviction petition was not maintainable. The respondent-tenant denied the averments made in the eviction petition that the building has become unsafe and unfit for human habitation. The Rent Controller formulated following issues:- “1. Whether the site plan pertaining to the demised premises produced by the applicant is wrong, if so its effect? OPR 2. Whether the tender of the arrears of rent made by the respondent on the first date of hearing, is illegal, and invalid? OPA 3. Whether the demised premises are in a dilapidated condition and the demised premises are unfit for human habitation? OPA 4. Whether the present application is bad under Section 23 Rule 1 CPC in view of the order dated 11.2.77 passed by the Rent Controller, Barnala? OPR 5. Whether the applicant is estopped from filing this eviction application on account of his act and conduct? OPR Civil Revision No.2721 of 1999 -: 3 :- 6. Whether the respondent is liable to be evicted from the demised premises on the ground mentioned in issue No.2 & 3 above? OPA 7. Relief.” Five witnesses were examined by the petitioner-landlord and he relied upon documents P-14 to P-18. Respondent-tenant also relied upon the oral evidence of five witnesses. The Rent Controller after appreciating the evidence, came to the conclusion that since the rent was tendered on the first date of appearance, the ground of non-payment of rent was not available to the landlord. Petitioners placed reliance upon the testimony of AW1 Shamsher Singh, who proved his report Ex.P2, along with site plan Ex.P1. Rajesh Kumar, AW2, proved photographs of the spot Ex.P3 to P13. Petitioner no.1, Jagdish Rai himself appeared as AW5 and his testimony was duly corroborated by AW3 Surinder Kumar and AW4 Pawan Kumar. On the basis of this evidence, it was contended that the lintel of the shed (chhappar) has sacked considerably. Main entrance and main gate had also sacked and the walls of the shop in dispute had developed cracks and the iron bars were also rusted. To controvert the evidence of the landlord, respondent-tenant relied upon the testimony of Kalyan Singh RW3, building expert, who proved his report Ex.R2 and the site plan Ex.R3 along with evidence of RW2 Piara Singh. It was urged before the Rent Controller that the landlord resided on the first floor above the shop in question and the lintel to which reference has been made by the landlord belonged to Municipal Committee as it intended to provide shelter. Rent Controller after examining the testimony of AW1 shamsher Singh, building expert, examined by the landlord and RW3 Civil Revision No.2721 of 1999 -: 4 :- Kalyan Singh, building expert examined by the tenant, came to the following conclusion:- “... This court has arrived at this conclusion on careful perusal of the above referred evidence that the room No.1 and 2 of the shop in dispute are quite fit for human habitation. Walls of rooms No.1 and 2 are neither depressed nor are out of plumb or they have been effected with dampness. No photographs of room No.1 and 2 has been placed on the record by the applicants showing the exact condition. Had there been any such defects, the applicants themselves would have placed on record their photographs. With holding of this evidence by the applicants also raise an adverse inference against the applicants. The photographs Ex.P-10 to Ex.P-13 pertain to rooms Ex.P-10 simply depict that some plaster has been peeled off and otherwise no defect has been noticed by this court in the room No.1. It can be set right by minor plaster. Ex.P-11 to Ex.P-13 also show no major defects in the roof of room No.2. This court, thus, confirms the findings by discussing the evidence on the record that the room No.1 and 2 are not proved to be unfit and unsafe by the applicants.” The Rent Controller further held that the shed in front of the shop was in a dilapidated condition and the same was not part and parcel of the shop in dispute and even if the shed in dispute caves in, or it is demolished, it is not going to affect the shop in dispute consisting of two rooms. The Rent Controller relied upon the testimony of RW5 Kishan Chand, who stated that the shopkeepers have encroached upon 20 feet area Civil Revision No.2721 of 1999 -: 5 :- of Municipal Committee in front of their shops. The demised shop is also having 20 feet extension in front of it and the Municipal Committee had granted permission to the persons who raised construction after leaving 20 feet space of the Municipal Committee in front of construction. Considering the entire evidence, following finding was recorded by the Rent Controller:- “... By taking into account judgment Ex.P14 and decree P.15, judgment Ex.P-18 and decree Ex.P-17, and copy of Roznamcha and other evidence on the record, this court has arrived at this conclusion that the applicants have demolished their shed in front of their shop simply to enforce the respondent to vacate the shop in dispute. The shed in dispute which is in dilapidated condition is not found to be part and parcel of the shop in dispute. Even if, it falls or is demolished, it will not affect the shop in dispute in the opinion of this court.” Aggrieved against the decision of the Rent Controller, petitioner had filed an appeal. The Appellate Authority affirmed the findings recorded by the Rent Controller. the Appellate Authority held that the shop in dispute was in fact in the nature of a projection to the shop. He further placed reliance upon earlier litigation wherein eviction petition was withdrawn by the landlord. The Appellate Authority had to say as under:- “... The landlord appeared to have earlier filed an eviction application against Ved Parkash respondent which was contested by the latter and the same was ultimately dismissed as withdrawn by the landlord vide order dated 11.2.1977 copy Ex.R5. The disputed shed in front of the building did not Civil Revision No.2721 of 1999 -: 6 :- appear to be an integral part of the main building. Moreover, such a shed could be erected at a nominal cost and on that ground the shop in dispute could not be said to have become unsafe and unfit for human habitation. The same in fact quite in good condition. From the copy of the judgment dated 16.7.1992 Ex.P-18 it is evident that Ved Parkash respondent had earlier filed an injunction suit against the landlord so as to restrain them from demolishing the shed in front of the disputed shop. That suit was dismissed by the learned trial court vide judgment dated 16.7.1992 copy Ex.P-18. At the relevant time, the plaintiffs also appeared to have filed an injunction suit so as to restrain Ved Parkash from giving any support below that shed and that suit was decreed by the learned trial court vide judgment dated 11.5.1993 Copy Ex.P- 14. In case the respondent/tenant was not allowed to carry even minor repairs in the shed in front of the disputed building and the same suffered from some damages, that does not mean that the shop in dispute had become unsafe and unfit for human habitation when that shed did not appear to be an integral part of the building and appeared to have been subsequently built to save the main building from rain and shine and such a shed could be erected at nominal cost....” To assail the concurrent finding recorded by both the courts below, counsel for the petitioner has placed reliance upon another subsequent round of litigation between the parties where the tenant approached the Rent Controller under Section 12 of the East Punjab Urban Civil Revision No.2721 of 1999 -: 7 :- Rent Restriction Act for a direction to the landlord to replace the shed or grant permission to repair the same. The Rent Controller decided the application on 14.3.2001 whereby prayer to replace the shed was declined by the Rent Controller. Thereafter appeal filed by the respondent-tenant was also dismissed. Relying upon this judgment, it was urged that it is a case of tenant himself that the shed requires replacement. Therefore, the ground urged by the landlord that the building in question has become unsafe and unfit for human habitation stands proved. I am afraid, this contention advanced by Counsel for the petitioner cannot be accepted as this will impeach the findings recorded by both the courts below that the shed is not an integral part of the building in dispute, but it is just a projection to save the shop from rain and sunlight. Counsel for the petitioner has failed to convince me that the shed, which is a projection to the shop, in any way, had caused damage to the main building. Even if the shed is in dilapidated condition, it, in no way, affects the strength and fitness of the main building. Thus, no ground has been made out to disturb the well reasoned findings recorded by both the courts below. Hence, there is no merit in the present petition, which is accordingly dismissed. [Kanwaljit Singh Ahluwalia] September 06, 2010. Judge kadyan