Civil Revision No.3805 of 2011(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:11.07.2011 Smt.Prem Rani & Ors. ....petitioners Versus Jivan Kumar .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Ajay Jain,Advocate for the petitioners *** RAKESH KUMAR GARG, J. This is tenants' revision petition challenging the judgments dated 11.09.2007 and 04.04.2011 passed by Rent Controller and Appellate Authority, Ludhiana, respectively, whereby the eviction petition filed by the respondent-landlord has been allowed and the petitioners have been ordered to be evicted from the premises in dispute on the ground that the demised premises have become unfit and unsafe for human habitation. The respondent filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on 14.06.2000 seeking eviction of Sh.Surinder Mohan Sharma, predecessor-in-interest of the petitioners from the demised premises forming part of property No.385 and 385/1 situated in Kaushal Building Chauri Sarak, Ludhiana, on the ground of non- payment of rent and that the demised premises have become unfit and unsafe for human habitation. The relevant pleadings of the respondent- landlord read thus: 1. That the petitioners had failed to pay or tender the arrears of rent w.e.f.01.02.1999 @ Rs.300/- per Civil Revision No.3805 of 2011(O & M) 2 month along with House Tax @ 15% despite repeated requests and demands. 2. That the demised premises have become unfit and unsafe for human habitation. The Eastern wall of the demised premises along with Northern and Southern walls are made of earth bricks. The Eastern wall has gone out of plumb. The respondent has illegally constructed a parda wall of 4” breadth up to the height of 4/5' to prevent it from collapse. The roof has been laid with iron girders with wooden phatas/planks which have been eaten by white ants and have given away. The mortar has lost its grip. The demised premises can fall down at any moment leading to loss of life and damage to the property. Upon notice, petitioner appeared and filed written statement raising various prelimiary objections. On merits, relaltionship of landlord was admitted. Rate of rent was disputed. Liability to pay house tax was also disputed. It was denied that the demised premises had become unfit and unsafe for human habitation. On the pleadings of the parties, the following issues were framed: 1. Whether the respondent is in arrears of rent and House tax since 01.02.1999 and is liable to be evicted from the demised premises?OPP 2. Whether the demised premises have gone unfit and unsate for human habitation?OPP 3. Relief. Issue No.1 was decided against the landlord holding that the tender made by the petitioner was valid. However, the eviction petition was Civil Revision No.3805 of 2011(O & M) 3 allowed by the Rent Controller,Ludhiana on the ground that the property in dispute was unfit and unsafe for human habitation. The relevant observations of the Rent Controller, Ludhiana, read as follows: “After going through the oral evidence I have heard the main arguments and the counsel for the petitioner has argued that apart from the petitioner he has examined the building expert to show that demised premises is unfit and unsafe for human habitation. On the other hand to rebut this evidence the respondent Surinder Mohan has appeared in the witness box by way of affidavit Ex.RW/2A but he has not faced the test of cross-examination and the evidence was closed by order of the court despite several opportunities being given to him for cross- examination as such his evidence cannot be looked into to support his claim. To the same effect is that the statement of RW1 Om Parkash, this witness was also not cross-examined. After going through the submission advanced by the counsel for the parties if the report of A.S.Walia is seen which is Ex.PA on the record along with site plan Ex.P2. It clearly shows that the demised premises is unfit and unsafe for human habitation. If the photographs exhibited by the petitioner are seen Ex.PC/33 it shows that the roof of the demised property along with other part of the property is unfit and unsafe for human habitation. To the same effect is photograph Ex.PC/13 which depicts the correct picture. Ex.PC/39, Ex.PC/40 Civil Revision No.3805 of 2011(O & M) 4 also shows the condition of the demised premises which according to me is unfit and unsafe for human habitation. The respondent has neither examined any expert to show that the demised premises is safe for human habitation nor has faced the test of cross-examination. As such his evidence cannot be looked into. If the entire cross-examination on the building expert by the respondent is seen except for the suggestions that the shop is fit for human habitation. There is no cogent rebuttal to the report of the Building Expert. As such I am of the view that the evidence of the petitioner coupled with the evidence of building expert cannot be discarded and it is proved on the record that shop in dispute is unfit and unsafe for human habitation. Hence, I decide this issue in favour of the petitioner and against the respondent.” Feeling aggrieved from the aforesaid judgement of the Rent Controller, Ludhiana, petitioner filed an appeal before the Appellate Authority. During the pendency of the appeal, the petitioner was allowed to lead additional evidence vide order dated 09.12.2010. Thereafter, the petitioner led evidence. The respondent-landlord also led rebuttal evidence to the additional evidence as led by the petitioner. After hearing learned counsel for the parties, the Appellate Authority dismissed the appeal filed by the petitioner vide impugned judgement dated 04.04.2011. The operative part of the judgement reads as follows: “Voluminous evidence has been produced by the landlord that the portion of the larger building which Civil Revision No.3805 of 2011(O & M) 5 falls in property No. 384 has crumbled down, along with the proof of the fact that the demised premises were also on the verge of collapse. Now it is to be determined as to what is the condition of the integrated building comprising of property No.384, 385, 385/1 and property in dispute particularly, which falls in 385 and 385/1. The landlord has examined A.N.Baldia, Building Expert, to prove the fact that the property has outlived its life. He has examined PW10 Shri Harbans Singh Sohal, in the evidence recorded in this very Court when the application of the tenant for additional evidence was allowed, to show that the other portions of the same building, of which the demised premises was a part, has already crumbled down. The landlord has firstly examined A.N.Baldia in the year 2000 and he has given the exact position of the 'life' of the portion falling in property No.385 and 385/1. He has observed that the property in dispute was second class construction and was more than 100 years of age. He has further opined that kacha mud bricks were used. The Eastern wall, Northern wall and Southern wall were made of kacha mud bricks and they have outlived its durability and mortar has lost its grip. He further observed that Eastern wall has already sunk and bulged out due to the weakness in foundation due to the digging of the basement by the adjoining owner and putting of weight on the Parchatti. He has further declared that in the North wall big cracks have Civil Revision No.3805 of 2011(O & M) 6 appeared and the roof of the adjoining portions have depressed due to the wooden beams/battens being infested by white ants. He has also opined that the roof was constructed with mud roofing which is resting on ballas. Again the deteriorated condition of the building after lapse of 11 years, was portrayed by the landlord in the report of Building Expert PW10 Harbans Singh Sohal, who has opined that the Eastern, Western and Northern walls were made of mud bricks with mud mortar and their condition was not satisfactory as there were cracks. He has also portrayed the condition of the portion falling in property NO.384, which was also part of the integrated building by stating that the walls were constructed of Nanakshahi bricks and there were big cracks in the staircase situated on the Northern wall. He further reported that the staircase going from the first floor to the second floor has collapsed and it was supported by ballas. The deteriorated condition of the building was also supported in the evidence of the tenant. Ravi Kumar, Building Expert, examined by the tenant has admitted that construction of the demised premises was second class construction and B class construction. He has further admitted that three walls of the shop were in mud bricks. The mud bricks were used prior to Nanakshahi bricks. Even otherwise the life of any construction, which is a B class construction is not more than 50 years. No suggestion was put forth to the definite opinion given Civil Revision No.3805 of 2011(O & M) 7 by the landlord and his Building Expert that the building was more than 100 years old, meaning thereby that the factum of the building being very old was admitted. The giving of support of the Eastern wall by raising of 4/5 feet high wall, was sufficient to give support to the wall which has bulged out. Now when there is bulge in the wall, then support of the wall is required at a particular point. It is admitted fact that the wall of the demised premises has bulged out and certainly giving support to such wall was only by way of constructing a support in the shape of a wall, which was 4/5 feet in height. It does not mean that 4/5 feet wall was not sufficient to give support to the entire building, especially when it has started bulging out, and that too on account of construction of basement in the adjoining Plot. Much stress was laid by the tenant that the true picture of the roof of the building and the walls could not be ascertained by the Building Expert of the landlord, because they have concealed the same by putting ply in the same, because no request for removing of the ply was made by the Building Expert examined by the landlord. No doubt, the condition of the roof was not examined by the landlord by removing the ply in the fear of retaliation, by the other group. The Building Expert examined by the landlord has given definite opinion with regard to the building and he was not in a position to remove the ply from the roof and walls in the fear of retaliation at that very moment. However, Civil Revision No.3805 of 2011(O & M) 8 the tenant was not debarred from giving exact position of the demised premises, but he has also failed to show exact position by removing ply from the roof as well as the walls. The pitiable condition of the building was also seen in the photographs Ex.P4/1 to Ex.PC/24. Moreover, PW6 Local Commissioner, Jaswinder Pal Singh, examined by the landlord, has proved that a Civil Suit for permanent injunction titled as Jiwan Modi versus Rohit Sharma, he was appointed as Local Commissioner. He has proved that there was a big hole on the roof of the said Shop and some building material was lying there for the purpose of plugging that hold. This person has gone to inspect the property in dispute at the instruction of Civil Judge, Junior Division, Mrs.Mandeep Bedi and that too in an injunction suit. PW7 Arun Bajaj has proved photographs Ex.PW7/5 to Ex.PW7/24 and these were with regard to the portion of the building falling in property falling in property No.384. Lastly the testimony of Building Expert, Harbans Singh Sohal, shows variation in the building since the first Building Expert examined the building on 26.12.2000 whereas the property was examined by second Building Expert Harbans Singh Sohal on 16.03.2011 i.e.after lapse of 11 years. PW10 has further proved that three walls of demised premises were of mud bricks whereas the Western wall was of standard bricks. Ex.PW 10/A also showed that there was a support of Civil Revision No.3805 of 2011(O & M) 9 balli to the roof because the portion of the building has sagged in. He has further proved that second floor of the kitchen had fallen and there were gaps at the places from where the ballas have fallen down and this was evident from the photographs. RW4 has admitted that the photographs Ex.PC/1 to Ex.PC/3, Ex.PC/10 to Ex.PC/12, Ex.PC/14 and Ex.PC/17 to Ex.PC/20 are the photographs of the property in dispute. These photographs also speaks about the dilapidated condition of the building. RW4 has admitted that there was staircase to the building in question on the backside along with portion of tenant Kanti Parkash. He has also admitted that some portion of the staircase which leads to the second floor has fallen down. This clearly showed that portion of the integrated building has started crumbling down and this fact is itself admitted by RW4 Rohit Sharma, who is son of the tenant. Apart from this Ex.PW3/79 shows the sagging of the roof. Ex.PW 3/12 shows the falling of the roof of the adjoining portion. Ex.PW3/13 shows sagging of the roof. Ex.PW3/20 shows one plank having been broken. All these photographs speaks of the portion of the integrated building, which was inspected by PW6 Jaswinder Pal Singh and PW7 Arun Bajaj, in the injunction suit and also admitted to be a part of the larger building, as admitted by son of the tenant. This shows that not only the demised premises (falling in NO.385 and 385/1) but portion of property Civil Revision No.3805 of 2011(O & M) 10 No.384(which is also part of the integrated building) were in dilapidated condition. On the other hand, evidence put forth by the tenant do not show that the building was in a fit condition. His main stress was that the position of a part of the building fall in No.384, was not mentioned in the pleadings, so same cannot be taken into consideration to determine that the demised premises being part of larger integrated building has become unfit and unsafe for human habitation. As per law laid down in 2011(1)Civil Court Cases 846(SC) M/s J.P.Builders & anr.vs.A.Ramdas Rao & anr.the landlord was only to plead the fact that the building had become unfit and unsafe for human habitation. He was not supposed to put forth the condition of each and every part of the demised premises as well as the other integrated building of which demised premises was a part, in his pleadings. The Law of Civil Procedure Code was not fully applicable in the proceedings before the Tribunal because the proceedings before Tribunal are summary in nature. This was also gist of the Law reported in 2004(3) PLR 452 in case of Vishwa Mittar and others versus Manohar Lal Makkar. Certainly, estimates regarding age, type of construction and condition of building was not to be mentioned in Rent Petition. Absence of such pleadings would not prevent the court for granting relief for eviction, by taking into consideration that in case any portion of the Civil Revision No.3805 of 2011(O & M) 11 integrated building, other than the demised premises becomes unfit and unsafe for human habitation, then the demised premises also is unfit for human habitation. As per the Law laid down in authority cited as 2003(1) PLR 744 Durga Devi versus Chander Sain and another, the landlord was entitled to the eviction of the tenant, if any part of the building, of which the demised premises were part, has become unfit and unsafe for human habitation. The building as a whole was to be taken into consideration and not a part of the building, where the tenant was residing, was to be taken into consideration for determining that the same has become unfit and unsafe for human habitation. The word 'building' as used in Section 13(3)(a) includes the integrated larger building as a whole, rather than part of a building demised to a particular tenant. This was also the gist of the Law laid down in authority cited in 1982 PLR 15 in case of Sajan Singth versus Sobha Nath(supra) which is fully applicable to the facts of the present case. Now in the present case, the substantial part of the integrated larger building has become unfit and unsafe for human habitation, so the tenant was liable to be ejected from the demised premises forming part thereof under Section 13(3)(a)(iii) of the Act. Not only the demised premises have become unfit and unsafe, but he portion falling in property No.384, which is admittedly a part of the integrated building, of which the Civil Revision No.3805 of 2011(O & M) 12 demised premises is a part, has also crumbled down, and its stair case had fallen down and so were the portion of the roofs. This fact was duly proved in the testimony of PW10 Harbans Singh Johal, Building Expert. Moreover, this building is very old as it has been built with mud mortar before the buildings with Nanakshahi bricks were being erected. The Building Expert of the respondent has admitted that the demised premises were B Class construction and generally where the buildings are more than 50/60 years old and were made of B Class construction, the become unfit and unsafe after the passage of that period. This also was the gist of the Law reported in 2004(1) LJR 592-Darshan Kumar versus Mahesh Kumar. So much so even upper portion of the integrated building has become unfit and unsafe for human habitation and in this situation tenant can be evicted from the ground portion in accordance to the Law laid down in 2006(2) Rent Control Reporter- 428 Sudarshan Kumar versus Manoj Kumar. In the present case, major portion of the building is in dilapidated condition and so the tenant is liable to be evicted. Thus, from the evidence on record, it is amply proved by the landlord that the demised premises have become unfit and unsafe for human habitation. As such, I do not see any infirmity in the findings recorded by the learned Trial Court and the same are , hereby affirmed.” Challenging the aforesaid findings, learned counsel for the Civil Revision No.3805 of 2011(O & M) 13 petitioner has vehemently argued that the findings recorded by the Appellate Authority in the judgement are beyond the pleadings with regard to the fact that the entire building of which 385 and 385/1 were the part has become unfit and unsafe and on account of that the demised premises was also in danger of crumbling down. The entire evidence led by the respondent-landlord before the Appellate Authority proves only one thing that the demised premises were part of one big building present on property No.384, 385, 385/1 and since the part of property No. 384 has become unfit and unsafe, the entire building of which property No.385 and 385/1 have become unfit and unsafe and on account of that the demised premises are in danger of crumbling down. The aforesaid evidence is against the well settled proposition of law that any amount of evidence, beyond the pleadings with regard to the demised premises having become unfit and unsafe, cannot be taken into consideration. Learned counsel for the petitioners has further argued that it was nobody's case that property No.384, 385, 385/1 were a part of one integrated building and the landlord has changed the entire case by adducing rebuttal evidence before the Appellate Authority which was not permissible in law and thus has argued that the impugned judgments are liable to be set aside. I have heard learned counsel for the petitioners and perused the impugned judgments and the record, with the help of the learned counsel for the petitioners. The arguments raised by learned counsel for the petitioners are without any merit. There is ample evidence on record to hold that the demised premises were on the verge of the collapse. Mr.A.N.Baldia, Building Expert, examined by the landlord has clearly stated that the property has outlived its life. It has been observed in his report that the property in dispute was second class construction and was more than 100 years of age. The Eastern wall, Northern wall and Southern wall were Civil Revision No.3805 of 2011(O & M) 14 made of kacha mud bricks and had outlived its durability and mortar had lost its grip. In the report, it is also observed that the Eastern wall has already been sunk and bulged out due to the weakness in foundation due to the digging of the basement by the adjoining owner and putting of the weight on the Parchhati. It has come in his report that in the North wall big cracks have appeared and the roof of the adjoining portions have depressed due to the wooden beams/battens being infested by white ants. Even the roof was constructed with mud roofing which is resting on ballas. Even Building Expert PW10 Harbans Singh Sohal has also opined that the Eastern, Western and Northern walls of the demised premises were made of mud bricks with mud mortar and their condition was not satisfactory as there were cracks. Even Ravi Kumar, Building Expert, produced by the petitioner has admitted that the construction of the demised premises was second class construction. He has also admitted that three walls of the shop were in mud bricks. The mud bricks were used prior to the Nanakshahi bricks as the life of any such construction is not more than 50 years. It is again an admitted fact that the wall of the demised premises has bulged out and the petitioner has raised wall up to the height of 4/5 feet to support the said wall. Learned counsel for the petitioners could not dispute the fact that the passage to the demised premises is through Deodi and even the staircase of property No. 384, 385, 385/1 were common and the property No.384 was not separate from the property No.385 and 385/1. Learned counsel for the petitioners could not dispute the fact that the portion of the integrated building over property No. 384 has started crumbling down. The main stress of the petitioner that the respondent- landlord has not pleaded that the demised premises was an integral part of property No. 384, 385 and 385/1 and therefore evidence to that effect cannot be looked into, is without any force, as independent of the fact that premises in dispute is an integral part of property No.384, 385 and 385/1 Civil Revision No.3805 of 2011(O & M) 15 and a portion of the above said property is crumbling down, it has also come on record and there is voluminous evidence to hold other portions of integral building, independently, that demised premises has become unfit and unsafe for human habitation. The question, whether a building has become unfit and unsafe for human habitation is a question of fact. Both the courts below on appreciation of evidence have recorded a concurrent finding in favour of the landlord. In view of the findings of the courts below as discussed, it cannot be said that these findings of the courts below are perverse or the evidence is beyond pleadings. Thus, I find no merit in this petition. Dismissed. (RAKESH KUMAR GARG) JUDGE 11.07.2011 neenu