IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5530 of 1999 Date of decision:23.04.2009 Pyare Lal ...Petitioner versus Krishan Lal and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Gopal Sharma, Advocate for Mr. Sunil Panwar, Advocate for the petitioner. Mr. Arun Palli, Senior Advocate with Mr. Karamvir Singh Kang with Mr. Jai Bhagwan, Mr.Divanshu Jain and Mr. Sunil Garg, Advocates, for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The revision is directed against the eviction ordered against the tenant in an action taken by the landlord under Haryana Urban (Control of Rent and Eviction) Act, 1973 on three grounds but the ground that survived for consideration was in favour of the landlord which was the ground that the building had become unfit and unsafe for human habitation. The eviction was made on a consideration of the reports of a Commissioner who had inspected the property and found that some repair work had been done and by his inspection, it was clear that the plastering on walls had been undertaken just a few days before his visit and that the building was not safe and it was unfit for human Civil Revision No.5530 of 1999 - 2 - habitation. Apart from this evidence, there was evidence of an expert who was examined as PW-5 who had given his evidence with reference to a report which was exhibited as PW-4/A and the plan PW-4/B that the tenanted portion of the property was falling and the remaining portion of the property had completely fallen and had become vacant. The expert had also opined that some repairs had been undertaken by the tenant which according to him on his enquiry to the tenant was done by him to prevent the roof from falling down completely. 2. The orders of eviction passed by the authorities below are assailed by the learned counsel for the tenant on the ground that the first report which was given after an inspection by a Local Commissioner had not stated anywhere about the condition of building except that on inspection of the inner rooms, he found that “some of the karries of the roof were bending” and otherwise he did not notice anything more in those rooms. He had generally observed that there was no outlet on the roofs for rainwater to drain and that feature itself could endanger the life of both the roofs in the near future. Learned counsel's objection to the report of the second Commissioner was that the Commissioner had inspected the premises in yet another civil suit but the Commissioner himself had admitted that he was not an expert himself and he had no knowledge about the nature of repairs that had been done. According to the learned counsel, the report was not helpful since no more than plastering of the walls noted to have been done was made and there was no clear evidence as to the fact that the building was unfit and unsafe for human habitation. Adverting to the evidence of PW-5, learned counsel Civil Revision No.5530 of 1999 - 3 - submitted that an expert was not competent to elicit any evidence from the parties and the report which makes a reference to the so-called admission by the tenant that he had carried out repairs to prevent the roof from falling was inadmissible. According to him, there should be an independent proof that the building was unfit. 3. The nature of condition of the building whether unfit or unsafe should be understood from the general nature of the entire superstructure of which the demised premises is also a part. It is a matter of admission that the major portion of the entire structure has come crumbling down and it is only the demised premises which stands solitary in the hands of the tenant. The counsel for the petitioner seems to contend that even the expert had admitted that the re-construction could be done in the places where the portions have fallen down without touching the construction in the hands of the tenant. It is one thing to contend that a landlord could put up construction surrounding the property in the hands of the tenant but quite another to say whether the landlord decides to do so only in that manner. It is not a heritage construction of any value that a landlord who decides to put up the whole construction and who opines that all the remaining portions as well as the fallen down cannot be fettered by a suggestion that it is feasible to leave the tenanted premises all alone. The construction was a part of the whole and when the remaining portion has fallen, it is but natural that the landlord has a reason to treat the property in possession of the tenant also as necessary when he had to re-construct the whole structure. Again when the whole of the remaining property has fallen down due to old Civil Revision No.5530 of 1999 - 4 - age, it is inconceivable that a portion of the building alone had a structural integrity to weather the onslaught of time and space. If the building has survived without the walls collapsing all the way, it is evident that the tenant had reasons to protect himself by appropriate repairs. The counsel for the petitioner is unable to substantiate as to how and in what manner the repair is done and whether he put the landlord on notice before any such repairs were undertaken. It was for the tenant to explain the necessity of having to make such unilateral repairs without the concurrence of the landlord which is impermissible under the scheme for the Act. 4. Learned counsel refers my attention to two decisions of this Court, one in M/s Mahavir Jain Shoe Store, Khanna Versus Dr. Gian Chand Loomba and another, reported in 2001 PLR 35, where the Court held in a case arising under the East Punjab Urban Rent Restriction Act that, when the issue is whether a building is unfit and unsafe for human habitation, the Court has to see whether the demised premises or the building of which the demised premises is a part, has become unsafe or unit for human habitation on the date of the filing of the petition itself and not when the order of ejectment was made. The other decision is Mohinder Pal Versus Hari Das, reported in 2003 PLR 563, which also dealt with a case under the East Punjab Urban Rent Restriction Act that if the other part of the building had fallen down, that by itself will not mean that the premises in question are also unfit and unsafe for human habitation. It is not possible for me to accept the Civil Revision No.5530 of 1999 - 5 - decisions as laying down any law differently from how the Courts below have dealt with the issues. 5. It is no body's case that the building had become unfit only subsequently and that on the date of the filing of the petition the premises were intact and there had been no danger about the quality of the construction. On the other hand, in a case where a landlord applies for eviction on this ground, evidence could be secured by appointment of a Local Commissioner or an expert only subsequent to the filing of the petition. The report will have to be inevitably be on the condition of the building on the date of such visit which could be subsequent to the filing of the petition. The assessment will have to be made on the construction on the date of the petition only with reference to a finding on the condition of the building on the date of a report which could be even subsequent to the filing of the petition. If a guess-work to the condition of the building is made as to how it could have been on the date of the filing of the petition, that action would be permissible because that is the only method of eliciting scientifically whether the building is unfit or unsafe for human habitation. To except that an inspection should be made even prior to the filing of the petition and that shall form basis for filing the petition will be asking for the impossible for a tenant may not be in all cases allow access for an expert brought at the instance of the landlord to appraise the nature of the building even before a petition is filed. Similarly, if the tenanted premises is a part of the larger portion and if the remaining construction has fallen due to old age will be unnatural to assume that the tenanted premises which is a part of the Civil Revision No.5530 of 1999 - 6 - whole cannot be in danger. It could never be a matter of a proposition of law that the condition of the rest of the building cannot determine the quality of the construction in the hands of the tenant which is a part of the rest. I therefore do not find support from the two decisions referred to by the learned counsel as laying down propositions of which shall apply to all types of situations. 6. The most important thing that has to be noticed in this case is that the authorities below have considered all the reports together. They have consistently found that the building was unfit and unsafe. Such a finding is invariably a question of fact. Before the revisional Court, a tenant cannot call for upsetting such findings unless evidence is either perverse or evidence is made without reference to the relevant materials placed before the Court. Decisions are also cited by the counsel for the respondents to say that the assessment of a nature of condition of the building is invariably a question of fact and there shall have be no re-appraisal on a question of fact. I do not wish to replicate all the decisions which are cited to spell out such a proposition for, in my view, it is too elementary to require dilation . The orders of eviction passed by the Courts below under such circumstances, do not require to be interfered with in revision and accordingly the revision is dismissed. (K.KANNAN) JUDGE 23.04.2009 sanjeev