Civil Revision No.2223 of 1989 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2223 of 1989 (O&M) Date of decision: 17.02.2009 Mahesh Kumar and others .............. Petitioners Vs. Mohan Lal (dead) through LRs and others ............Respondents 2. Civil Revision No.2224 of 1989 (O&M) Mahesh Kumar and others ..........Petitioners Vs. Matu Ram (dead) through LRs .........Respondent 3. Civil Revision No.2225 of 1989 (O&M) Mahesh Kumar and others ..........Petitioners Vs. Mahavir Parshad (dead) through LRs .........Respondent Present: Mr. D.R. Mahajan, Advocate for the petitioners. Mr. M.L. Sarin, Sr Advocate with Mr. Jaspal Singh, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K.KANNAN, J. 1. The landlord who sought for eviction of three tenants by independent petitions, who held various portions of the same building suffered a reversal of the decision before the Appellate Authority Civil Revision No.2223 of 1989 (O&M) -2- when the landlord's application for ejectment was disallowed. The landlord in all the three petitions is the revision petitioner. 2. The grounds for eviction as sought for were that building had become unsafe and unfit for human habitation; that the tenants had been guilty of acts that had impaired the use and utility of the building and that in respect of the subject matter of revision in C.R. No.2225 of 1989 alone, it had been contended that the tenant had converted the tin-shed which was a part of the demised premises as verandah and had rendered himself actionable for ejectment for wrongful conversion. 3. The original landlord was one Sham Lal and the petitioner before the Rent Controller was a subsequent purchaser vide registered sale deed dated 21.01.1982. The tenant-Mahavir Parshad, who is respondent in rent control petition No.18 of 1982, had in his possession a shop consisting of two rooms and a tin shed, which had been converted into a room. The other two tenants were tenants in respect of small rooms, each one having one single room for use as a shop. All the demised premises were comprised in a single structure making up a composite building. All the rent control petitions were disposed of similarly and the appeals also were dealt with and disposed of similarly. The grounds of eviction being the same except for the tenant-Mahavir Parshad against whom an additional ground of unauthorized conversion is also made and the condition of the building being the same which will have an immediate bearing to the premises in one or the other in the hands of the other tenants, all the civil revision petitions are disposed of by this common judgment. Civil Revision No.2223 of 1989 (O&M) -3- 4. Apart from the examination of the landlord himself to prove the relatively dilapidated structure and the condition of building, the landlord had also filed an application for appointment of Commissioner, who had personally inspected the property and had given a report with site plan. Yet another expert Desh Raj had also carried out inspection of the premises and had given a report. Sh. Jagdish Rai Bagla, Advocate has given his report, which states inter alia:- “That there were doors which closed the verandah of tin shed but the doors were opened at the time of inspection. There was no planks (SIC) at the door 'L' shown in the site plan. In the room I found there four pillars DEFG and girders were put on D to E and G to F in room No.1 and in room No.2 there was a wooden lot (Shateer) fitted in the wall at point AB in room No.2 to give support to the roof. That I found the wooden planks almirahs were put to stand on the wall as shown XY which has covered some of the gate 'L'. I also found a crack from level to top about ½" in breadth in the front of room No.1 in wall XY. Site plan attached." 5. Another report filed by a Civil Engineer, Mr. Des Raj with the plan also brings out the details of the property and in particular to the fact that the roof is being supported by girders and pillars and that the age of the disputed shop could be about 60 years and in his opinion had outlived its life. He was further of the opinion that the Civil Revision No.2223 of 1989 (O&M) -4- building was in a dilapidated condition, unsafe and unfit for human habitation and required a reconstruction at the early date. The report was also accompanied with the plan. The Civil Engineer, Mr. Des Raj has also given evidence in support of his report and the basis for the observations regarding the uninhabitable state of the construction. The photographs showing the cracks in the property and placement of girders and the pillars to prevent the roof from falling have also been placed and exhibited as A-7 to A-12. The Rent Controller adverted to admission of the respondent that the roof was being supported only by the girders and pillars, which have been erected and if they are removed, the roof itself will collapse and come crumbling down. 6. As regards the claim for eviction on the additional ground against the tenant-Mahabir Parshad, the Rent Controller also found that the tenant had coverted a tin-shed as a verandah and had reduced the access to go to the other portion of building thereby impairing the value and utility of the building. 7. The Appellate Authority reversed the decision by finding that the report of Civil Engineer did not evoke confidence since he had delayed considerably in filing the report after inspection by more than two months. He also took a serious objection to the fact that the site plan which had been referred to in the petition had not been exhibited as evidence and consequently an adverse inference had to be drawn that if the site plan had been filed it would be against the contention of the landlord. The Appellate Authority also made specific reference to Ex.R-3, a letter alleged to have been written by the landlord's vendor from whom Mahavir Parshad had taken the Civil Revision No.2223 of 1989 (O&M) -5- property on rent and who, it was alleged, had given permission to the tenant to effect some repairs. The attempt of the tenant was, therefore, to show that the so-called alterations made by the tenant by converting the tin-shed into a verandah and also some of the repairs, which had done at the ceiling were not unauthorized but they had been done with the specific permission of the previous landlord. 8. The counsel for the landlord in all the three cases has common grounds to assail the orders of the Appellate Authority. To him, the report of the Advocate Commissioner, which was wholly impartial ought to have been accepted. The rejection of the Civil Engineer's report that it had been filed after considerable delay and that the expert was only expected to support the case to the landlord, who brought him as a witness was not justified. The so-called delay in filing the report after inspection did not exist and report was fairly elaborate and scientific in its assessment, nature of building, the present condition and uninhabitibility of the property. The learned counsel also urges that if the condition of the building was bad, the fact that tenant effected repairs to make it habitable would not avail to tenant to resist an action for ejectment. His further argument with reference to Ex. R-3, which was purported to be a letter signed by his vendor authorizing the tenant to effect repairs had not been established at all. The author of the letter Sham Lal had not himself been examined to prove so-called permission. The two witnesses who were examined to testify the genuineness of the letter were artificial since it could hardly be expected that to secure a mere letter, two witnesses would have signed. Civil Revision No.2223 of 1989 (O&M) -6- 9. The counsel appearing for the tenant supported the findings of the Appellate Authority on the ground that if the condition of the building had been really unfit for human habitation, the Municipal Committee itself would have issued a notice directing demolition. He supported the reasoning of the Appellate Authority that site plan had not been filed before the Court and the adverse inference made by the Appellate Authority was, therefore, justified. He would counter the argument regarding the non-examination of author of Ex.R-3 namely the letter, by stating that when witnesses to the said document had been examined, there was no necessity to examine its author. The chain of evidence, according to him, pointed out clearly to the fact that building was in a fit state and did not require to be demolished. 10. Both the counsel have relied on decision of the Hon'ble Supreme Court and this Court to support their respective contentions. Learned counsel for the revision petitioner has also filed an application under Order 41 Rule 27 to introduce the site plan, which was actually a plan attached to document of purchase and the authenticity of the document itself could not be impeached by the fact that the site plan which was an annexure to the sale deed contains the same registration number as found in the sale deed. According to him, the site plan showed that there was no pillars or girders to support the roof and consequently the owner could not have given the so-called letter of permission for effecting repairs as spoken to by the tenants. 11. The condition of the building and fitness of its state for human habitation are essentially matters of evidence. When there Civil Revision No.2223 of 1989 (O&M) -7- were two reports, one by an advocate and another by a Civil Engineer, who had respectively inspected the building and had also given the reports and site plans and they supported the respective reports and subjected themselves to cross-examination on the reports, they ought to have been given due weight. The Rent Controller found the reports to be convincing and found that the building was old and it was in a precarious condition. The admission of the tenant also that the iron girders and pillars that had been erected alone had literally supported the roof from collapsing and adverted to the admitted case that these repairs had been made only by the tenant. If this finding was to be reversed in appeal it ought to have been by pointing out the inadequacy of the evidence or unreliability on the character of evidence adduced through documentary and oral evidence. The rejection of the report of the expert that an expert would always be expected to give only a biased report to support the person, who brought him as a witness and castigating the merits of the report by pointing out to an inconsequential delay of mere two months and further observing that absence of a site plan was fatal to the landlord's case are all too flimsy to set aside the decision rendered on appreciation of facts by the Rent Controller. The weight of the decisions rendered by this Court and on the subject of effect of the repairs by the tenant could not be lightly brushed aside. 12. The right of a landlord to get a tenant ejected would not be lost even if the tenant himself got the building repaired and made it fit for human habitation finds reflected in the judgment of this Court in Rakha Vs. Shadi Singh 1981(1) RCR 106, Darshan Kumar Vs. Civil Revision No.2223 of 1989 (O&M) -8- Mahesh Kumar 2003(1) RCR 661 and Jai Dev Singh Vs. M.L. Kapoor 2007(1) R.C.R. (Rent) 366. While adversely commenting about conduct of a tenant, who carried out structural alterations in such a way that a verandah converted into a room by brick walls would render himself liable for eviction the Court also said that it would be no defence to state that such structures made could easily be removed. This proposition is advanced through the decision in Narain Singh Vs. Bakson Laboratories Etc. 1981(2) RCR 237, Baij Nath Vs. Shail Kumar 2003(1) RCR 197 (a case where a tenant blocked access to roof with wooden planks rendering himself liable for eviction) and Avtar Singh Vs. Sardul Singh and others 2003(1) RCR 437 (a case of a tenant merging verandah into a shop and impairing the value and utility of the shop). This Court has also strongly relied on reports of independent local commissioners for determining the nature of the building and the inhabitability of structure in the decisions in M/s Kalra Trunk House and others Vs. Sukhdev Mitter 2005(1) RCR 629, Ajit Singh Vs. Ram Sarup and others 1982(2) RCR 24. Learned counsel also relies on the decisions of the Court, which have held that if a large portion of the building is found to be bad and uninhabitable, same assessment would have to be also in respect of smaller portions. This line of authorities is to bring support to his claim for ejectment for the tenants, whose cases are covered by the C.R. No.2223-2224 of 1989, who were occupying smaller portions of the larger building. The decisions that bring support to this proposition are: Krishan Lal Vs. Madan Gopal 1984 (1) RLR 65, Bimla Devi and others Vs. Sultani Mal Harnam Dass Civil Revision No.2223 of 1989 (O&M) -9- 2006(1) R.C.R. 547 and Bachh Raj Jain (died) through L.Rs Vs. M/s C.R. Trading Co. 2002(2) RCR 417. The material impairment, which the law makes actionable is what is the worth in the perception of landlord as constituting the reduction in value and utility. Even construction of a Parchhati by fixing a beam and steel girders to withstand Parchhati was found by this Court in Radha Krishan Vs. Amar Singh 1999(2) RCR 523 as constituting impairment in value. 13. These decisions are sought to be countered by the counsel for the tenant by referring to decisions of Hon'ble Supreme Court in Om Pal Vs. Anad Swarup (dead) by L.Rs (1988) 4 SCC 545 where it was held that the conduct of the tenant in putting up a Parchhati by inserting wooden ballis in wall through holes did not constitute material impairment. In Piara Lal Vs. Kewal Krishan Chopra (1988) 3 SCC 51 it was held that a mere fact of falling down of roof of a room in the rear side of the premises when later the roof got repaired by tenant with Rent Controller's orders would not give room for the landlord to obtain eviction. In Gulzar Ali Vs. State of H.P. (1998) 2 SCC 192, the Hon'ble Supreme Court commented about the tendency of expert witnesses to support the view of the person who called him and how the value of such report would have to be discounted. 14. It may be possible for either parties to contend for the legal propositions to support the respective claims but what is important to note is when the evidence adduced brings out a stark reality of the poor quality of the building and the dilapidated structure, the interference made by the first Court of fact on relevant considerations constituted a serious act of derailing the course of justice and Civil Revision No.2223 of 1989 (O&M) -10- deflecting the cause by commenting about the quality of evidence unrealistically. The reversal of the decisions by the Appellate Authority was clearly unjustified having regard to the nature of evidence that had been let in before the Rent Controller and the mode of reasoning adopted by him. The additional evidence that is sought to be produced namely the copy of site plan shall not be taken on file for the plans were available along with the respective reports of the advocate commissioner and the building expert and found to be adequate to render a just decision. 15. The findings of the Rent Controller upholding the contention of the landlord relating to the unsafe and unfit nature of the tenanted premises and further grounds alleged against one tenant of the acts of impairing the value and utility of the building is restored and the civil revision petitions are allowed upholding the landlord's entitlement to obtain eviction. However, there shall be no direction as to costs. 16. At the time of pronouncement of judgment, learned Sr. Counsel appearing on behalf of the tenant pleads for time for vacating the premises on the ground that the tenant has been there for a long number of years. 17. The time for eviction shall be three months from the date of making of this order. (K. KANNAN) JUDGE February 17 , 2009 Pankaj*