IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5226 of 2007 Date of decision: 21st November, 2008 Dev Samaj Society … Petitioner Versus Sant Lal … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jagdish Manchanda, Advocate for the petitioner. Mr. A.K. Jain, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Dev Samaj Society registered under the Societies Registration Act, through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City preferred a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for eviction of respondent tenant. In the eviction petition, it was stated that the petitioner – society, being a registered society, vide appropriate resolution passed, was competent to file eviction petition through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City. It was stated that the petitioner – society was owner and landlord of the demised premises. It was further stated that respondent was tenant of the shop and was paying monthly rent @ Rs.125/-. Following grounds were pleaded for seeking ejectment of the tenant: (a) Respondent tenant has not paid the rent of the demised shop from 01.10.2000 to 30.09.2001; (b) Respondent tenant, without the written consent of the landlord, has broken the floor of the shop in question; Civil Revision No.5226 of 2007 (c) Respondent tenant, without the consent of the landlord, has constructed new roof and ceiling by making structural changes in the shops. Therefore on this ground also, eviction was sought. Notice was issued by the Court. Respondents caused their appearance. Written statement was submitted, wherein relationship of landlord and tenant has been admitted. It was stated that Society had not authorized Sudarshan Kumar to file the present petition, therefore, there is a defect in the institution of the petition and same is liable to be dismissed. All averments and pleadings made in the eviction petition, on merit were denied. However, rate of rent being Rs.125/- per month was admitted. Replication to the written statement was filed. Averments made in the eviction petition were reiterated. The Court had drawn following issues: 1. Whether the respondent is liable to be evicted from the suit premises on the ground mentioned in the petition? OPA. 2. Relief. Sudarshan Kumar appeared as PW-1. He tendered constitution of Dev Samaj Society (Ex.P-1), memorandum of Dev Samaj (Ex.P-2), registration certificate (Ex.P-3), proceedings book (Ex.P-4), Resolution No.17 dated 19.11.1988 (Ex.P-5) and application dated 22.5.2000 (Ex.P-5). Tenant examined himself as RW-1. Thereafter, in rebuttal evidence, petitioner had tendered various documents, viz. plaint (mark A), written statement (mark B), affidavit tendered in evidence (mark C), statement of witnesses (mark D), 2 Civil Revision No.5226 of 2007 detailed list of tenants (mark E) and certified copy of order dated 17.2.2003 (Ex.P-7). Rent Controller examined the documents and regarding non payment of rent, it was held that the counsel for the petitioner-landlord has very fairly condeded that respondent-tenant has tendered the requisite rent as demanded by the petitioner and that he also did not press this ground. So the respondent is not liable to be evicted on this ground. It was urged before the Rent Controller by the landlord that Ex.P-6 proves the fact that shops are in dilapidated condition and they are unfit for human habitation but the Rent Controller did not find it sufficient ground of ejectment in the petition. Rent Controller further held that no benefit of the documents tendered in rebuttal evidence can be given to the petitioner as none of the documents is exhibited except copy of order dated 17.2.2003, but all documents are marked documents, which have not been proved in evidence. Regarding impairment of the value and utility of the demised shop, Rent Controller has held as under: “13. … … … … Further petitioner has not shown any other evidence to prima-facie show that respondent has in fact, broken the floor and ceiling of the demised shop as no body from the neighbourhood or any other person has been examined who had seen the respondent while do so. Further, there is no expert i.e. either L.C. or someone else to show that floor and ceiling of the demised shop has been changed or have been repaired as claimed by the petitioner. So, petitioner has failed to prove that respondent has materially impaired the value and utility of the demised shop by breaking its floor and roof and thereafter reconstructing the same.” Aggrieved against the same, landlord filed an appeal before the Appellate Authority. The Appellate Authority examined the various 3 Civil Revision No.5226 of 2007 judgments relied upon by the landlord, discussed their ratio and on facts, affirmed the findings of the Rent Controller and held as under: “10. On being given my thoughtful consideration to the respective contentions of the parties, I am of the considered view that the present appeal is not likely to succeed. Onus lied heavily upon the petitioner to prove that the respondent has materially impaired the value and utility of the suit shop by raising construction or that the suit shop was in dilapidated condition and was unfit for human habitation. However, no cogent or reliable evidence could have been produced by the petitioner on the file in this regard except the solitary statement made by PW-1 Sudershan Kumar.” I have heard Mr.Jagdish Manchanda, counsel for the petitioner. Two courts below have given concurrent finding of fact that the petitioner has failed to prove that the respondent has materially impaired the value and utility of the demised premises. Furthermore, the ground of non payment of rent was not pressed before the Rent Controller by the petitioner-landlord. Concurrent findings of two courts below, based upon documentary and oral evidence, cannot be said to be perverse. Therefore, I have no reason to disturb the findings of the two courts below. Hence, there is no merit in the present petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 21, 2008 rps 4