C.R.No.6952 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.6952 of 2011(O&M) Date of decision: 14.11.2011 Permod Goel .....Petitioner vs. Indermohan and another ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.O.P.Goyal,Senior Advocate, with Mr.Amit Sharma,Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This is tenant's revision petition challenging the order dated 28.3.2007 of Rent Controller dismissing the petition filed by the petitioner under section 12 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as “the Act”), for granting permission to make out necessary repairs of roof and to recover the expenses so incurred by him from the respondent-landlords and that of Appellate Authority dated 30.8.2011 whereby the appeal was also dismissed. The brief facts emerging from the impugned orders are that petitioner is a tenant in the demised premises which is a shop. The roof of the shop in dispute is in possession of the respondents. As per the averments, the respondents with an intention to get the demised shop vacated are trying their best to demolish the shop. With this evil design respondents have made holes in the roof. They have also closed the outlet of rain water as a result of which water has started leaking into the shop through the roof and has caused intensive damage to the goods of the petitioner. Petitioner requested the respondents to get the shop repaired. He C.R.No.6952 of 2011 2 further requested them not to damage the roof by drilling the holes but they refused to do so. The roof in question is a lintel roof and it can be easily repaired with minor repairs. Hence the present petition. Upon notice, respondents appeared and filed written statement raising various preliminary objections regarding maintainability of petition, concealment of facts, mala fide intention to file the present petition etc.On merits, existence of relationship between the parties was not denied. It was also admitted that roof of tenanted premises was in possession of the respondents. It was further averred that respondents never tried to demolish roof or its walls nor they tried to dispossess the petitioner or his father. It was further averred that in the year 1992, a civil suit was filed by the petitioner in which a miscellaneous application on the same grounds was filed which was not pressed. The main suit was also dismissed as withdrawn. Respondents never made any holes nor they closed the outlet of rain water; respondents have no evil design, it is a concocted story. Question of acceding request of the petitioner to allow him to make repairs does not arise because the suit property was in a dilapidated condition which cannot be repaired as alleged. In fact, the entire tenancy premises is in bad shape and cannot be repaired in any circumstances. All other averments were denied and dismissal of the petition was sought. Replication was filed. From the pleadings of the parties, the following issues were framed:- 1. Whether the petitioner is entitled U/S 12 of the East Punjab Urban Rent Restriction Act for giving direction to the respondent to make necessary repair of the shop ?OPA 2. Whether present petition is not maintainable ? OPR 3. Relief. C.R.No.6952 of 2011 3 In order to prove issue No.1, petitioner filed his affidavit Ex.PX reiterating the contents of his petition. Petitioner also examined one Ashok Kumar as PW2 to support his own averments. However, no photographs of the roof in dispute were placed on record. On appreciation of material placed on record, the Rent Controller found that the petitioner has failed to lead cogent evidence to make out a case as to whether the alleged holes have been drilled by the respondent and further observed that had some holes been in existence the same could have been proved very well by placing photographs on record. The Rent Controller also took note of the fact that Ram Lal father of the petitioner had also moved an application on 24.1.1992 seeking repair of the roof in which similar allegations of drilling holes in the roof were made. In that suit, local commissioner was appointed who submitted his report Ex.D.5. From the perusal of which no such hole was found in existence; rather the Local Commissioner had observed three cracks with further observations that lintel was little depressed and bulged, which was natural but no broken brick was visible. The said suit was not pursued by the petitioner or his father rather the suit as well as the application filed by the petitioner was dismissed. Feeling aggrieved from the aforesaid order of the Rent Controller, petitioner filed an appeal before the Appellate Authority which was also dismissed. While dismissing the appeal, the Appellate Authority observed as under:- “ The tenant in his cross examination has admitted the suggestion that the tenanted premises is in a dilapidated condition. Learned Rent Controller has taken notice of this fact C.R.No.6952 of 2011 4 while passing the impugned judgment. Counsel for the appellant has relied upon the law settled in Smt.Parameshwari Bai Versus Muthojirao Scindia AIR 1981 Karnataka 40 wherein it has been held that stray sentences elicited in the cross examination could hardly be construed as admission. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the court to read the other parties of the evidence and the stand taken by him in the pleadings. According to learned counsel for the appellant, the sentences wherein the tenant has admitted as correct the fact that tenancy premises is in dilapidated condition has been typed wrongly. I have gone through the entire cross examination of tenant and find that he has denied all other suggestions put to him by opposite counsel but has admitted that tenancy premises is in dilapidated condition. In view of the law settled in the above mentioned ruling, this portion of his statement cannot be taken as admission and sentence might have been typed incorrectly due to inadvertence. But the other evidence on the record does not prove that roof of the disputed shop needs repair rather it is proved that the shop is on rent since 1974-75 and its about 40 years old. It is a single story building and roof is open to sky. C.R.No.6952 of 2011 5 Due to lap[se of time, the building has become dilapidated and unsafe and unfit for human habitation. Non filing of eviction petition on the basis of condition of the building does not affect the merits of the present case rather it shows the conduct of the landlord that he has no intention to damage the building for evicting the tenant. If he had any intention, he would definitely filed eviction petition. No expert has been examined to prove that the roof can be repaired. In case there was any requirement of repair of the roof, the tenant could have pressed his application filed in his civil suit on 24.1.1992. The petition before learned Rent Controller was fixed on 22.9.1998 i.e. after more than six years. During the intervening period there was no complaint of the tenant about leaking of roof. There is no evidence on record that during intervening period, any repair of the roof was undertaken by the tenant or landlord. As stated earlier it seems that the tenant has the intention to get the roof repaired to make it livable though the building has become dilapidated due to its age and due to natural wear and tear.” Challenging the impugned orders of the authorities below, counsel for the petitioner has vehemently argued that stray sentences elicited in the cross examination could hardly be construed as an admission. Before the right of a party can be considered to have been defeated on the basis of an alleged admission made by him the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine where there is C.R.No.6952 of 2011 6 ambiguity in the admission, it would be necessary for the court to read the other part of the evidence and stand taken by him in the pleadings. According to the Senior Advocate, appearing for the petitioners, the sentences wherein the tenant has admitted as correct the fact that tenancy premises is in dilapidated condition has been typed wrongly, and thus, on the basis of such kind of admission the findings against the petitioner cannot be recorded to the effect that the building has become unfit and unsafe for human habitation and is in dilapidated condition. Counsel for the petitioner has further argued that no such finding with regard to dilapidated condition of the building in question could have been given by the Rent Controller and the Appellate Authority in a petition filed under section 12 of the Act, by the tenant, as the issue before the authorities below in the instant petition was only to the extent of granting permission to the tenant to make necessary repairs in the demised premises as prayed, and as such, on this ground the revision petition is liable to be accepted. The argument raised by the learned counsel for the petitioner is without any merit. In fact, the Appellate Authority in para 12 of its judgment has clearly observed that a portion of the statement of the tenant cannot be taken as an admission and any such sentence might have been typed incorrectly due to inadvertence. Thus, no finding has been recorded against the petitioner on the basis of such admission as argued. However, it may be seen that the authorities below on appreciation of evidence on record placed by the petitioner himself has recorded a concurrent finding to the effect that the evidence placed on record does not prove that roof of the disputed shop needs repair. In fact, even before this Court, counsel for the petitioner was unable to show any material placed before the authorities C.R.No.6952 of 2011 7 below on the basis of which the damage to the roof of the shop in dispute could be made out. Not only this, no evidence has come on record to prove the fact that the respondents were responsible for making any kind of damage/holes in the roof of the shop as alleged. Even no expert has been examined to prove the damage to the roof or that the roof can be repaired by minor repairs. Faced with this situation, learned counsel for the petitioner has submitted before this Court that a Local Commissioner be appointed to investigate about the condition of the roof in dispute to adjudicate the lis between the parties effectively. Admittedly, the petitioner has also moved an application before the Rent Controller for appointment of Local Commissioner to report about the condition of the shop in dispute which was not accepted. Even a revision petition filed by the petitioner before this Court against the said order was also rejected. It may also be noticed at this stage that a Local Commissioner cannot be appointed to collect evidence on behalf of the parties. The petitioner has come to the Court with averments that respondent has damaged the roofs of the tenanted premises , and having failed to place on record any evidence to prove the aforesaid assertion and the extent of damage to the shop in question, petitioner cannot be allowed to collect evidence on his behalf through Court process. Thus, I find no merit in this prayer of the petitioner. The contention of the petitioner that the authorities below could not have given findings with regard to the fact that building has become unsafe and unfit for human habitation is noticed, only to be rejected simply because the aforesaid observations has been given by the Rent Controller only with reference to his application for making repairs in the demised C.R.No.6952 of 2011 8 premises. Admittedly, respondent-landlord till date has not filed any such petition for eviction of the petitioner on the ground of unfit and unsafe for human habitation. Obviously if any such petition is filed the respondent- landlord has to prove the same in accordance with law. No other point was argued. In the aforesaid view of the matter, I find no merit in this petition and the same is dismissed. (Rakesh Kumar Garg) Judge November 14, 2011 rk