Civil Revision No. 6191 of 2007 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 6191 of 2007 (O&M Date of Decision: 17.10.2008 Sunita Devi …Petitioner Versus Mrs. Anjana ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rajesh Sethi, Advocate for the petitioner. Mr. B.R.Gupta, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The tenant having failed in two Courts below has preferred the present revision petition. Respondent No.1 to this petition had instituted eviction application before learned Rent Controller stating therein that she succeeded to the property, earlier owned by Uggar Singh and Mittar Sain. Two grounds have been taken in the eviction application, one is that rent has not been paid and the demised premises is in dilapidated condition and unfit for human habitation. Notice was issued and the written statement was filed wherein it was stated that the premises was rented out by the petitioner- respondent to the respondents to the ejectment petition @ Rs.9/- per Civil Revision No. 6191 of 2007 (O&M) 2 month including house tax. Learned Rent Controller framed the issues and came to conclusion that the rent was Rs.9/- per month and the rent has been paid. Therefore, the ground of non-payment of rent was not available. Learned Rent Controller relied upon the report of the Local Commissioner Ex.P4. Local Commissioner is none else but a retired Sub Divisional Officer. This report has also been taken into consideration by the Appellate Authority. The relevant portion of the report reads as under:- “As per site condition it was observed that the above said house was constructed with old small bricks about more than 100 years ago. The open space of the house stands covered with old earth and small bricks Tillas as shown in the site plan, which were the dismantled material. The space occupied by the tenant have been shown in red in the site plan, which consist of old 3rd class mud roofing with thick walls of small bricks in mud- plaster. The flooring have been consisting of simple bricks, which is in very poor condition. It is also reported that due to previous heavy rains, the tenant has covered the roof of rooms with some kind of plastic cloth. The condition of the occupied of the house by tenant is dilapidated. The walls are deteriorating on the first floor of occupied portion. There is no provision for cross-ventilation in the Civil Revision No. 6191 of 2007 (O&M) 3 occupied portion, which is very essential for human life. The overall condition of the occupied portion of the house is said to be very poor and declared as unsafe for human life and can be collapsed at any time”. Relying upon the report of Expert, both the Courts below came to conclusion that the tenant is liable to be evicted. The present revision petition was filed in this Court after a delay of 386 days and an application for condonation of delay has been also filed. Learned counsel for the respondent states that infact the delay is of 436 days. Be that as it may, learned counsel for the petitioner argued the case on merits also and he has failed to convince me that this Court while exercising revisional jurisdiction should come to the rescue of the petitioner. I am conscious that while exercising revisional jurisdiction, I cannot tread on the path of re-appreciation and re-appraisal of the evidence. Mr. Sethi appearing for the petitioner has raised following four arguments. He has stated that landlady herself has not appeared and instead her special attorney i.e. her husband had appeared. Therefore, the pleadings made in the ejectment application have not been supported by the evidence. It has been further stated that landlady can only have the personal knowledge and the special attorney cannot Civil Revision No. 6191 of 2007 (O&M) 4 depose on the facts to which only the landlady has knowledge. This argument though may be valid but in the facts and circumstances of this case, cannot be accepted. The core issue before the two Courts below was whether the building has become dilapidated and is unfit for human habitation or not. Mr. S.S. Walia, who appeared as Expert as PW.2, in his report, has placed on record sufficient material that the building is unsafe for human habitation and can collapse at any time. Mr. Sethi has assailed the report of the Local Commissioner on the ground that material particulars have not been given as to which portion of the building is such which will cause the property unsafe for human habitation. I am of the view that the report of the Expert is to be taken as a whole. The opinion of the Expert is to be granted sanctity if the Court is satisfied that the Expert is possessed of sufficient means to arrive at the conclusion and has skills by which he can open. Secondly, the basis of the report and the material relied should not be alien for formulating the opinion. A perusal of the portion of the report which has been relied upon by the two Courts below and has been reproduced above reveals that it is not based on conjectures and surmises but has given a sufficient reasoning. Once the Court is satisfied regarding the expertise and the reasons given by the Expert then the report is accepted as a whole and the Court cannot record dissent to the report to the extent that some portion be accepted and some portion be rejected. Thirdly, Mr. Sethi has urged that learned Rent Controller erred Civil Revision No. 6191 of 2007 (O&M) 5 in law . Mr. Sethi further state that the very fact that the rate of rent is Rs.9/- has been relied by learned Rent Controller to infer that the building is very old. This argument cannot be accepted as learned Rent Controller too has only drawn an inference in support of his reasoning. Fourthly, it was submitted by Mr. Sethi that the very fact that the building is old, it cannot be assumed that the building is unsafe for human habitation. Old buildings necessarily are not unsafe but the building which is 100 years old can be taken as unsafe. Considering these facts the report of Expert says that the building is dilapidated and unsafe for human habitation. Mr. Sethi has further relied upon Prataprai N. Kothari v. John Braganza 1999(2) Civil Court Cases 568 (S.C.) to contend that in absence of plea, no evidence is admissible. He has stated that there is no pleading that the building is 100 years old. The principles of law propounded may be corrected but not applicable to the facts of the case. No expert or any other evidence was brought on the record by the petitioner-tenant to prove the age and alleged construction of the building. In absence of the same, Courts below have recorded finding that building is unsafe for human habitation. In the present case, it is the Expert who has stated that building was built 100 years ago and formulated this opinion from the quality of building taking into account the fact that the building is constructed by old small bricks. An Expert always from the nature of bricks and material used for construction can determine the age of the building. Therefore, this need not to be part of the pleadings. To fortify his submission, Mr. Sethi has also relied upon Khagendra Lall Dutta Civil Revision No. 6191 of 2007 (O&M) 6 and Another v. Jacob Sole Jacob 1995(2) Civil Court Cases 403 but this judgment is also not attracted in the facts of the case. During the course of arguments, it has been further stated that the eviction was for the two rooms, whereas the tenant is possessed of two rooms, kitchen, latrine and bath room. Two rooms are the essence of tenancy. Kitchen and bath room are only for enjoyment of two rooms for which the tenancy has been created. Therefore, the dominate part of the tenancy has to be seen and this argument again cannot be accepted. In view of the above, I find that the reasoning given by the two Courts below is just and no interference is called for by this Court. Hence, the present petition is dismissed. (Kanwaljit Singh Ahluwalia) Judge October 17, 2008 “DK”