C.R. No.1488 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.1488 of 2008 Date of Decision: 25.8.2008 Smt.Geeta Devi and others .....Petitioners Vs. Smt.Sushila ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.S. Mittal, Sr.Advocate with Mr. Atul Gaur, Advocate for the petitioners. Mr.Ashok Aggarwal, Sr.Advocate with Mr.Parminder Singh, Advocate for the respondent-caveator. ... RAJIVE BHALLA, J The petitioners-tenants lay challenge to the order dated 14.2.2008 passed by the Appellate Authority, Bhiwani, accepting the appeal filed by the landlady, reversing the order passed by the Rent Controller, Charkhi Dadri dated 30.7.2004 and ordering their ejectment. The respondent-landlady filed a petition for ejectment of Krishan Patwari, the tenant, who has since passed away and is now represented by the petitioners on the grounds of non payment of rent and that the demised premises had become unfit and unsafe for human habitation as the walls had developed cracks and water was leaking from the roof. In response, the tenant did not deny the damage to the building but asserted that the damage could be repaired. The damage was attributed to the of age of the house, floods that had inundated the house and C.R. No.1488 of 2008 2 persistent neglect by the previous landlord and the present landlady,and as a result, the Western walls, the front portion had developed cracks and the roof and parts of the verandah walls had started leaking. The tenant therefore served a legal notice dated 9.7.1996 calling upon the landlady, to repair the tenanted premises. On her failure to do so, the tenant filed a petition under Section 12 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as `the Act') praying that the landlady be directed to carry out repairs. It was, therefore, asserted that as the tenanted premises are repairable, the ejectment petition be dismissed. After appraisal of the respective pleadings, the learned Rent Controller framed the following issues :- “i). Whether the demised premises have become unfit and unsafe for human habitation and, therefore, respondent is liable to be evicted from the same ? OPP ii). Whether tender of rent made by the respondent to the petitioner is invalid and so respondent is liable to be evicted ? OPP. iii) Whether petitioner has no locus-standi to file the petition ? OPD. iv) Whether the petition is not maintainable ? OPR. v) Whether petition is false and frivolous and petitioner has not come in the Court with clean hands and petition has been filed in order to harass the respondent and, therefore, he is entitled to special costs ? OPR. vi) Relief.” The issue with respect to non payment of rent was decided in C.R. No.1488 of 2008 3 favour of the tenants, as arrears of rent were tendered. On the issue, whether the tenanted premises were unsafe and unfit for human habitation, the learned Rent Controller held that the landlady had failed to establish the extent and nature of the damage and merely because the tenanted premises remained under water for a month or had developed cracks, it could not be held that they had become unsafe and unfit for human habitation. The ejectment petition was, therefore, dismissed. The respondent-landlady filed an appeal. The Appellate Authority accepted the appeal and reversed the order passed by the Rent Controller and, therefore, ordered the tenants' ejectment. Counsel for the petitioners submits that the Appellate Authority, Bhiwani, committed serious errors, while reversing the order passed by the Rent Controller. The learned Rent Controller rightly held that the landlady had failed to establish, by any cogent or reliable evidence, the extent and nature of the damage caused to the tenanted premises or that the admitted damage was sufficient to hold that the building is unsafe and unfit for human habitation. The landlady merely produced AW-1 Gian Chand, a Municipal Engineer, in support of her allegation that the building has become unsafe and unfit for human habitation. This deposition was rightly rejected by the Rent Controller, as vague and unworthy of credence as the witness was not a qualified Architect or an Engineer. It is submitted that apart from the statement of AW-1 Gian Chand, the site plan Ex.A-1 and her self serving statement, the landlady did not produce any other evidence, to establish that the building has become unsafe and unfit for human habitation. The learned Rent Controller placed reliance upon the statement of RW-2 Vikas Bagla, the expert, produced by the petitioners, C.R. No.1488 of 2008 4 who submitted an opinion that the building requires minor repairs valued at Rs.7500/-. His statement and report Ex.R.4 were unfairly discarded by the Appellate Court by holding that the report was contrary to the admissions made by Sh.Krishan Patwari, the original tenant and predecessor in interest of the petitioners, in his petition filed under Section 12 of the Act, praying for repair of the premises. It is argued that the repairs as prayed for were minimal and could not be construed as an admission that the building had become unsafe and unfit for human habitation. It is also argued that the Appellate Authority erred in placing undue significance on dismissal of the application for repairs, as infructuous. From the aforementioned order, the appellate Court drew an untenable inference that repairs effected, without waiting for final orders, indicates the tenant attempt to conceal the fact that the building is unsafe and unfit for human habitation. The onus to establish that the building is unsafe and unfit for human habitation, lies squarely upon the landlady, but she has failed to discharge this onus. The Appellate Authority should have, therefore, dismissed the appeal. It is further argued that mere existence of cracks or seepage in the roof and the walls, in the absence of any evidence of their extent and nature, would not give rise to an inference that the building has become unsafe and unfit for human habitation. It is further submitted that Section 108(f) of the Transfer of Property Act postulates that where a lessor neglects, within reasonable time, to effect repairs, the lessee may repair the building, at the cost of the lessor. The original tenant therefore did not commit any error in repairing the premises. Counsel for the respondent/landlady, on the other hand, submits C.R. No.1488 of 2008 5 that the Appellate Authority rightly reversed the order passed by the Rent Controller. As is apparent from the order passed by the Rent Controller, much significance was not attached to the admissions made in the application seeking repairs. In this application, the tenant admitted that the demised premises had remained under water for a period of one month and as a result, the walls developed cracks and water started leaking from various parts. Instead of waiting for the outcome of the petition filed for repair of the tenanted premises, the tenant unilaterally and without permission, of the Rent Controller, repaired the building so as to conceal the true nature and extent of the damage. The original tenant stepped into the witness box but his answers to questions, as to the extent and nature of repair carried out, were evasive and vague. For a building to be unsafe and unfit for human habitation, it is not necessary that the building should collapse or should be in such immediate and imminent danger of collapse, as would warrant instant ejectment. The appellate Court, therefore, rightly drew an adverse inference against the petitioners and accepted the appeal. It is further submitted that the report Ex.R.4 submitted by Vikas Bagla was rightly rejected by the appellate Court. The report lacks details and was submitted after the premises were repaired. It is, therefore, asserted that as the order passed by the Appellate Authority does not suffer from any error of jurisdiction or of law, the revision petition be dismissed. I have heard learned counsel for the parties and perused the orders passed by the Rent Controller as also the Appellate Authority. Large tracks of Charkhi Dadri, including the tenanted premises were inundated by flood waters in September 1995. Admittedly, the tenanted premises are an old building. It is not denied, by the petitioners C.R. No.1488 of 2008 6 and is in fact asserted in their petition, filed under Section 12 of the Act, for repair of the tenanted premises( Ex.A-3 ),and in their written statement that the tenanted premises remained submerged under 6 ft. of water for more than one month. It is the positive case of the petitioners that as a result of this inundation, the tenanted premises were damaged, three walls developed cracks and the roof started leaking. It is, therefore, apparent that as per the defence set up by the deceased tenant, the building was damaged,its walls had developed cracks and there was seepage from the roof. The only point at issue, therefore, is, whether the admitted damage was sufficient for the Appellate Authority to infer that the tenanted premises had become unsafe and unfit for human habitation. Both the learned Rent Controller and the Appellate Authority have recorded diametrically opposite opinions in respect thereof. The learned Rent Controller after rejecting the report submitted by the landlady's expert,has placed reliance upon a report submitted by one Vikas Bagla, the expert produced by the petitioners. This report was rejected by the first appellate Court, as the original tenant admitted to the existence of cracks in the walls and seepage in the roof, but the report Ex.R.5, was silent on these points and failed to make a reference to the nature of the building, the strength of the foundation and its condition. This report was prepared, after the original tenant unilaterally carried out repairs, without waiting for the decision of his application praying for repair. No infirmity or illegality is discernible from the Appellate Court's decision to reject the report. The first appellate Court considered the averments in the petition filed for repair of the tenanted premises and in the written statement C.R. No.1488 of 2008 7 and rightly held that the tenant had admitted to the existence of cracks and seepage in the building. The tenant without the permission of the Rent Controller and without waiting for the decision of the petition filed for repair of the tenanted premises, carried out repairs in the tenanted premises. The petition for repair of the tenanted premises was, therefore, dismissed as infructuous. The Appellate Authority rightly drew an inference from the tenant's conduct, referred to herein above that he had effected repairs so as to conceal the true extent of the damage to the tenanted premises. The appellate Court also held that the original tenant had failed to answer a specific question, as to the nature and extent of repairs carried out by him. From the above facts an inference was rightly drawn that that the building had become unsafe and unfit for human habitation. It would, therefore, be necessary to reproduce the relevant extract from the judgement of the Appellate Authority :- “It may be recalled that it is the own case of the respondent tenant in the petition Ex.A/3 and the notice Ex.PX that the building had remained submerged under water for a long period on account of flood in the month September, 1995. This architect went to add that the building can be repaired at a cost of Rs.7500/-, which part of his report has been blindly relied upon by the Rent Controller by using the word that the said amount is “merely” 5 percent of the total costs of the house. The learned Rent Controller lost sight of the fact that the rent of the premises in question is Rs.25/- per month equivalent to Rs.300/- per annum and the amount of Rs.7500/- considered by the Rent Controller to be an insignificant amount, would be C.R. No.1488 of 2008 8 equivalent to twenty five years rent of the premises in question. Reverting to the report Ex.R/5 of the report of RW1 Vikas Bagla above named, it may be noticed that he has admitted during his cross-examination that when he inspected the premises in question, there were no cracks in the walls and he did not remove the plaster from any portion to find out the condition of the wall. At the cost of repetition, it may be recalled that it is the own case of the tenant that as per his above reoffered application Ex.A/3, three walls in all had developed cracks and over head roof had started leaking. An overall appraisal of the testimony of this witness reveals that his report Ex.R/5 is not such upon which implicit reliance could have been placed as done by the Rent controller. XXX XXX XXX The fact of such offering of compensation qua damage to the premises in question is yet another circumstance showing that the premises in question were indeed damaged and the extent of damage as per recital in the petitioner Ex.A-3 filed by the tenant itself reveals that it had resulted in cracks in the walls, leading to leakage from the roof. Obviously, the extent of leakage was so great that the deceased tenant did not wait for the orders of the Rent Controller pursuant to his application Ex.A-3 filed under Section 12 of the Act and chose to himself carry out the repairs, although a tenant is not competent to do so. Observations of own Hon'ble High Court in the case titled as Jai Dev Singh V. M.L. Kapoor reported in 2007(2) RCR C.R. No.1488 of 2008 9 (Civil) 654 may be read to advantage in this context wherein it has been observed inter alia that the landlord is not required to carry out material repairs and the landlord can rather seek eviction of tenant if the building requires large scale re;pairs and has outlived its utility. XXX XXX XXX It may be highlighted in this context that as per recital in the notice Ex.PX admittedly sent by the tenant to the landlord, the premises in question had remained submerged for about one month under six feet of water. Such prolonged submersion of building under such huge quantity of water would obviously damage the building greatly which it apparently did on account of large cracks appeared in the walls and consequent leaking and the tenant resorted to repair thereof without the permission of the Rent Controller though so required thereby rendering himself liable to eviction.” A submission, by counsel for the petitioners that even if the walls had developed cracks and part of the roof was leaking, these facts would not by themselves lead to an inference that the building had become unsafe and unfit for human habitation, merits rejection. A considered appraisal of the facts, particularly the age of the building, the fact that it remained submerged under flood waters, the fact that the tenant admitted the existence of cracks and leakage in the roof, the fact that the original tenant filed a petition for repair of the tenanted premises, but instead of waiting for its outcome,proceeded to repair the premises C.R. No.1488 of 2008 10 unilaterally, compel me to hold that the learned Appellate Authority rightly concluded that the building was unsafe and unfit for human habitation. A tenant shall not, by an unilateral act of repair, except where the repairs are minor and inconsequential, defeat a landlord's right to seek ejectment and the Rent Controller's statutory jurisdiction to examine whether the building has become unsafe and unfit for human habitation. For the above conclusion, reference may be made to Balbir Singh V. Hari Singh, 1982(2) Rent Law Reporter 463 and Som Dutt and others V. Vidhya Parkash, 2003 (1) RCR 503. Another argument that the cracks and the seepage in the building could be repaired by expending a nominal sum of money, as pointed out by the building expert examined by the petitioners, cannot be accepted. The building was inspected after the tenant had effected repairs. The tenant, who was facing, a petition for ejectment, on the ground that the building had become unsafe and unfit for human habitation carried out repairs without waiting for the decision of the Rent Controller on his application for directing the landlord to repair the building. A presumption was, therefore, rightly raised against the tenant that in case repairs had not been carried out, the landlord would have succeeded in establishing that the building had become unsafe and unfit for human habitation. It would also be necessary to mention here that this inference, drawn against the tenant is fortified by the fact that when the original tenant stepped into the witness box, his reply to a question as to the nature and extent of the repairs effected by him was vague and evasive. An argument that Section 108(f) of the Transfer of Property Act, entitles a tenant to effect repairs, if the landlord ignores to do so, does C.R. No.1488 of 2008 11 not advance the petitioner's case in any manner. Section 12 of the Act, confers a right upon a tenant to seek an order for repairs. A tenant, who approaches a Court under Section 12 of the Act, would be required to wait and abide by the decision of the Rent Controller and shall not during the pendency of such an application, effect repairs unilaterally, more particularly, where an ejectment petition is pending. In view of what has been stated herein above, as the impugned order, passed by the Appellate Authority, holding that the building has become unsafe and unfit for human habitation, thus, requiring the petitioners ejectment does not suffer from any error of jurisdiction or of law, the revision petition is dismissed with no order as to costs. 25.8.2008 (RAJIVE BHALLA) GS JUDGE