IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4958 of 2007 (O&M) Date of Decision: December 15, 2010 The State of Haryana and another. …Petitioners Versus Vinod Tayal. … Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Narender Hooda, Sr. Addl. Advocate General, Haryana, for the petitioners. Mr. R.Kartikeya, Advocate, for the respondent. Alok Singh, J. (Oral) State and Deputy Commissioner have invoked revisional jurisdiction of this Court under Section 15 (6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act), assailing the judgment dated 30.08.2007 passed by the learned Appellate Authority, C.R. No.4958 of 2007 Hisar, thereby directing the eviction of the revisionist-tenant from the property in question. The brief facts of the case, inter-alia, are that initially property in question, which is commonly known as Deputy Commissioner’s house, was leased out by the landlord in the year 1905. The property in question was being used for the residence of the Deputy Commissioner, Hisar. In the year 2001, eviction petition was filed by the landlord under Section 13 of the Act on the ground of non-payment of arrears of rent, building is more than 100 years old and is in dilapidated condition and is unfit and unsafe for human habitation; material alterations were carried out in the building by the tenant without consent of the landlord. However, by way of amendment, another ground of eviction was also added i.e. alternate accommodation is available to the tenant in view of the fact that new residence for Deputy Commissioner, Hisar, has been constructed and Deputy Commissioner, Hisar has shifted to the new residence. Initially, learned Rent Controller vide judgment dated 29.09.2006 has dismissed the eviction petition. Feeling aggrieved, landlord preferred a statutory appeal before the learned Appellate Authority, Hisar, which was registered as Rent Appeal No. 66 of 2006. The Appellate Authority has allowed the appeal vide impugned judgment dated 30.08.2007 on the ground that tenant has shifted to the alternate accommodation i.e. newly built residence for the 2 C.R. No.4958 of 2007 Deputy Commissioner and building is lying vacant. Feeling aggrieved, State and Deputy Commissioner have invoked revisional jurisdiction of this Court. Mr. Narender Hooda, learned Senior Additional Advocate General, Haryana, vehemently argued that eviction order was passed by the learned Appellate Authority on the sole ground that Deputy Commissioner has shifted to the newly built Deputy Commissioner’s residence; the learned Appellate Authority did not find favour with the landlord on the other grounds of the eviction. Mr. Hooda, learned Senior Additional Advocate General, Haryana, further argued that since landlord has not filed any revision against the findings recorded by the learned Appellate Authority on the question of dilapidated condition of the building, hence, it would not be appropriate for this Court to look into the other grounds of the eviction as taken by the landlord in the eviction petition. Mr. Hooda further argues that shifting of residence of Deputy Commissioner from the property in question to newly constructed house will not amount to vacation of the property by the State. Property is still in the symbolic possession of the State. In reply, it is stated by the learned counsel for the landlord-respondent that landlord-respondent after seeking permission from this Court vide order dated 06.02.2009 has placed on the record photographs of the property in question 3 C.R. No.4958 of 2007 to show that property has fallen down and is not in the occupation of the tenant. It is further argued by the learned counsel for the landlord-respondent that during the pendency of the present revision, information was sought by the landlord under the R.T.I. Act and in reply to the information sought, it has been stated by the Information Officer, Hisar that after vacating the old house i.e. the property in question, payment of Rs. 1350/- towards rent has been made to the landlord, old Deputy Commissioner’s residence is vacant w.e.f. 19.08.2008. Learned counsel for the respondent-landlord, thus, argued that since tenant has ceased to occupy the accommodation and accommodation is lying vacant w.e.f. 19.08.2008, hence, present revision is rendered infructuous and order impugned should not be disturbed. It is further stated that even if no revision is filed by the landlord against the findings recorded by the Courts below on the question that building is in dilapidated condition and is unfit and unsafe for human habitation, however, this Court can set aside that finding on the basis of additional evidence produced before this Court. Undisputedly, property in question was let out for the residence of Deputy Commissioner, Hisar, and was being used as residence of Deputy Commissioner. From the reply furnished under R.T.I. Act, it stands proved that property in question is lying vacant w.e.f. 4 C.R. No.4958 of 2007 19.08.2008. From the additional evidence (photographs) filed before this Court vide order dated 06.02.2009, it is very much clear that major portion of the building i.e. old Deputy Commissioner’s residence has fallen down. Mr. Hooda, learned Senior Additional Advocate General, Haryana, could not refute reply under R.T.I. Act and photographs filed by the landlord-respondent. Deputy Commissioner, Hisar, has shifted to the newly constructed Deputy Commissioner’s house is also not disputed. Since, Deputy Commissioner has vacated the old house i.e. property in question and has shifted to the newly constructed house in Hisar, hence, finding recorded by the Appellate Authority that alternate accommodation is available with the tenant, warrants no interference by this Court. This Court in the case of Vijay Kumar and others versus Durga Ashram Charitable Trust and others, reported in (2002-3) PLR 749 has held that principles enshrined in Order 41 Rule 33 C.P.C., while reversing the findings against the respondent on some of the issues, can be invoked by the Appellate Authority under the Rent Act. Now, question comes as to whether principles enshrined in Order 41 Rule 33 C.P.C. can be invoked and pressed in service by this Court while exercising the revisional jurisdiction. In the opinion of this Court, while exercising the revisional jurisdiction, this Court has all such powers which are vested 5 C.R. No.4958 of 2007 with the Trial Court, as well as, with the Appellate Court. While exercising the revisional jurisdiction, this Court has ample power to admit additional evidence on the principles of Order 41 Rule 27, as well as, this Court has every jurisdiction to reverse the finding recorded against the respondent by pressing in service principles of Order 41 Rule 33 C.P.C. Order 41 Rule 33 C.P.C. reads as under:- “33. Power of Court of Appeal - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the 6 C.R. No.4958 of 2007 appeal is preferred has omitted or refused to make such order.” From the perusal of Order 41 Rule 33 C.P.C., this Court is of the opinion that finding recorded against the respondent, although not challenged by way of filing appeal or revision or by way of cross-objection, can be set aside by this Court or Appellate Court on the basis of material available on the record. As discussed herein above from the photographs, which are not in dispute, it is clear that major portion of the building has fallen down, hence, building is very well in dilapidated condition and is not, at all, fit for human habitation. No other point is raised by the revisionists. In view of the findings recorded above that the tenant – Deputy Commissioner has shifted to the newly constructed residence and building is lying vacant w.e.f. 19.08.2008 and major portion of the building has fallen down, I do not think it proper to interfere in the eviction order passed by the learned Appellate Authority. Revision petition is dismissed. December 15, 2010 ( Alok Singh ) vkd Judge 7