C.R. No.7153 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.R. No.7153 of 2008 Date of Decision : 03.08.2009 Ashok Kumar .....Petitioner versus Raj Kumar Madan Memorial Charitable Trust .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.Krishan Lal Verma, Advocate, for the petitioner. Mr.K.S.Dhillon, Advocate, for the respondent. -.- Surya Kant, J. This revision petition is directed against the order dated 22.8.2007, passed by the Rent Controller, Jalandhar, whereby the petitioner- tenant has been ordered to be evicted from the residential property bearing No.3365, Gali Surian, Kartarpur, Tehsil and District Jalandhar, as also against the order dated 25.10.2008, passed by the Appellate Authority, Jalandhar, dismissing the petitioner's appeal against the above mentioned eviction order. The respondent-Trust-landlord, filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Act'), inter-alia, on the grounds that: (i) the petitioner- tenant is in arrears of rent @ Rs.1000/- per month since 6.12.1993; (ii) the demised premises is unfit and unsafe for human habitation as the same is 100 years old and it is made of Nanakshahi bricks, and (iii) the petitioner has materially impaired the value and utility of the property. C.R. No.7153 of 2008 2 The petitioner contested the eviction petition and filed his written statement on 3.10.2000, a photocopy of which has been handed over in the Court during the course of hearing, which reveals that besides denying the relationship of landlord and tenant, the petitioner claimed himself to be in possession of the entire property since the year 1959. He also questioned the sale deed dated 8.12.1993 whereby the said property was reportedly purchased by the respondent-trust from its previous owner. The petitioner also denied the rate of rent at Rs.1000/- per month, as claimed by the respondent-trust. On the basis of the pleadings, the following issues were framed: “1. Whether respondent is in arrears of rent since 6.12.1993? OPA. 2. Whether property in dispute is unfit and unsafe for human habitation? OPA. 3. Whether respondent has effected material additions and alteration over the part of property in dispute without the consent of the petitioner? OPA. 3-A. Whether there exists relationship of landlord and tenant between the parties? OPR 4. Whether petitioner has no locus standi to file the present petition? OPR 5. Whether petitioner is estopped to file the present ejectment petition by his own act and conduct? OPR. 6. Relief.” The Rent Controller as well as the Appellate Authority have concurrently held that the petitioner has neither proved the payment of rent w.e.f. 6.12.1993 nor has tendered the arrears thereof. The Courts below have further held that the demised premises is more than 100 years old C.R. No.7153 of 2008 3 constructed with Nanak Shahi bricks and is in a dilapidated condition. The third ground of eviction that the petitioner has materially impaired the value and utility of the property, has, however, been turned down. Heard learned counsel for the parties at some length and perused the impugned orders. Learned counsel for the petitioner vehemently contends that in an earlier litigation the respondent-trust had denied the petitioner's status as a tenant, therefore, no eviction petition could be maintainable. He urges that the petitioner-tenant has specifically averred that the rate of rent is Rs.18/- per month only and that his application under Order 41, Rule 27 CPC for summoning the records of the civil suit between the parties and prove that rate of rent, has not even been decided by the Appellate Authority. Learned counsel refers to the photographs Ex.R-1 to R-16 to suggest that the demised premises is not in a dilapidated condition and is fit for human habitation. Per-contra, learned counsel for the respondent-trust points out that in the civil suit, the petitioner's own case was that he is tenant in the demised premises, therefore, it does not lie in his mouth to contend that the eviction petition is not maintainable. He argues that from the report of the Building Expert and other material, the courts below have concurrently held and rightly so that the demised premises is unfit and unsafe for human habitation as the same is 100 years old building made of Nanak Shahi bricks. Learned counsel points out that the application of the petitioner filed under Order 41 Rule 27 of CPC is inconsequential for the reason that in his written statement, the petitioner has nowhere pleaded Rs.18/- per month as C.R. No.7153 of 2008 4 the rate of rent and as such, the additional evidence sought to be produced by him is beyond and contrary to the pleadings. He further points out that the petitioner has not tendered the rent at any rate whether it is Rs.18/- or Rs.1000/- per month and, therefore, the additional evidence sought to be produced is nothing but an attempt to delay the adjudication of appeal. There is no denial to the fact that in the civil suit between the parties, the petitioner claimed himself to be a tenant in the demised premises. Even if the respondent-trust has denied the petitioner's status as tenant, there could be no estoppel against the law as the respondent after accepting the petitioner as a tenant, could seek his eviction from the demised premises only in accordance with the provisions of the East Punjab Urban Rent Restriction Act, 1949. Learned counsel for the petitioner argues that even if the petitioner refused to tender the rent, yet the Rent Controller ought to have assessed the arrears of rent, cost and interest etc. Suffice it to say that since the petitioner has disputed the relationship of landlord and tenant, the Rent Controller was not obligated to assess the rate of rent, as held by the Hon'ble Supreme Court in Rakesh Wadhawan and others versus M/s Jagdamba Industrial Corporation and others, 2003 (2) Civil Court Cases 361 (SC). The fact of the matter is that even after the eviction order, the petitioner did not deposit the arrears of rent before the Rent Controller or the Appellate Authority. Adverting to the other ground of eviction, the Courts below have referred to the deposition made on behalf of the respondent-trust and the statement of Building Expert (R.K.Verma) AW-5 who, vide his report C.R. No.7153 of 2008 5 Ex.AW5/G, has clearly suggested that the building is built up with Nanak Shahi bricks, mud and mortar and is more than 100 years old and unfit and unsafe for human habitation. The Courts below have not relied upon the photographs Ex.R-1 to R-16 for the reason that the petitioner has not examined the photographer who had taken those photographs nor the negatives were produced. No witness has co-related these photographs with the demised premises. On the other hand, the respondent-landlord has produced the photographs Ex.AW5/1 to AW5/40 and negatives Ex.AW5/41 to Aw5/80 which fully strengthens the opinion of the Building Expert. The findings returned by the Courts below are based upon the correct appreciation of the evidence on record and no interference by this Court is called for in exercise of its revisional jurisdiction. For the reasons given above, there is no merit in this revision petition and the same stands dismissed. However, in the peculiar facts and circumstances of the case, it is directed that the petitioner-tenant may hand over the vacant possession of the demised premises to the respondent- landlord by 31.10.2009. 03-08-2009 (SURYA KANT) Mohinder JUDGE