IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7393 of 2011 (O&M) Date of decision: 7.12.2011 Balwan Singh -----Petitioner Vs. Smt. Anita -----Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG 1. Whether reporters of local newspapers 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. Deepak Thapar, Advocate for the petitioner. --- RAKESH KUMAR GARG, J. CM Nos.29135-36-CII of 2011: Civil Misc. applications are allowed subject to all just exceptions. Documents attached with the said applications are ordered to be taken on record. C.R. No.7393 of 2011: 1. This is tenant’s revision petition challenging the judgment dated 13.10.2011 of the Appellate Authority, Jind, whereby eviction of the petitioner-tenant has been ordered from the demised premises while accepting the appeal against order dated 13.1.2009 of the Rent Controller, Jind, dismissing the ejectment petition. C.R. No.7393 of 2011 2. Shorn of unnecessary details, it is suffice to say that eviction of the petitioner has been ordered from the demised premises on the ground that the shop in dispute has become unfit and unsafe for human habitation. The said ground, as set up in the ejectment application, reads thus:- “b) that the shop has become unfit and unsafe for human habitation because it is very old and lying in dilapidated condition because cracks have developed in the walls, floors, which is in damaged condition and the structure of the shop is built of mud and mortar in old days which has given way due to passage of time. No plastering was done on the walls and floors. The shop may collapse at any time, whose level is three feet below the level of the road and thus the shop in dispute is dangerous to the occupants/general public.” 3. The petitioner controverted the aforesaid ground stating that the demised shop is in perfectly good condition and there is no danger of its collapse. Other averments in the ejectment petition were also controverted and dismissal of the ejectment petition was sought. 4. Parties led evidence in support of their respective claims. However, the Rent Controller recorded the findings against the respondent-landlady and dismissed the petition. Aggrieved from the same, the respondent-landlady filed an appeal before the Appellate Authority which was accepted. While 2 C.R. No.7393 of 2011 accepting the appeal, the lower Appellate Authority observed as under:- “15. The main plank of argument of learned counsel for the appellant is that the learned Rent Controller did not correctly appreciate the evidence of the petitioner/appellant in its right perspective while deciding the point regarding unfit and unsafe for human habitation of the shop in question and the learned Rent Controller has given undue weightage to the report of RW 2 Sh. S.P. Gupta, retired XEN, PWD, B and R and ignored the report of PW 4 Sh. J.C. Mittal, retired SDE, PWD, B and R, Jind merely on the ground that he was less experienced than RW 2 S.P. Gupta. He further contended that the report given by PW4 J.C. Mittal categorically reveals that roof of wooden battens and phattis eaten by ants. First and last battens are completely damaged. The back wall and wall towards South and front wall of mud and major cracks were developed in the back wall and front wall. The door lintel of front wall was tilted. These circumstances revealed the condition of the shop. The learned Rent Controller did not consider these facts. He placed reliance in case Ram Nath vs. Shri Kanth, 2000(1) PLR 679 and Mange Ram vs. Gurdial Singh @ Gurdial Chand, 1989(1) Rent Control Report 700 wherein it is held that the building becoming unfit and unsafe for human habitation, the landlord is entitled to eject the tenant and reason rendering the building unfit and unsafe is irrelevant for determination of right of landlord to seek ejectment of tenant on ground of building having become unsafe and unfit for human habitation. The 3 C.R. No.7393 of 2011 report of RW 2 Sh. S.P. Gupta prepared in the absence of the appellant, so it does not carry much weight and liable to be ignored. While on the other hand, learned counsel for the respondent repelled the contention raised by learned counsel for the appellant on the ground that PW 4 J.C. Mittal did not inspect the shop by visiting terrace and since the expert of the respondent RW 2 S.P. Gupta, retired XEN, PWD B and R was more qualified than the expert of the appellant, who in his report Ex.RW 2/A has found the shop in perfect and sound condition. He placed reliance in case Surinder Singh Babra vs. Bhushan Kumar Sharma, 2003 HRR 515 (P and H), Ram Avtar vs. Murari Lal and another, 2000 HRR 262 (P and H), Bharat Singh vs. Ashok Kumar, 2004(1) HRR 53 (P and H) and Dharminder Nath and others of Kapurthala vs. Udham Singh of Kapurthala, 1990 HRR 245 (P and H). 16. After evaluating the contentions raised by learned counsel for the parties and after scanning the reports submitted by both the expert, one thing is clear that the roof of the shop is of wooden battens and phattis and it is admitted by both the experts that first batten of the roof is in broken condition i.e. in two pieces and iron support is affixed under this batten with the support of wall and last batten of the roof is in damaged condition. It is worthwhile to mention here that PW 4 J.C. Mittal inspected the shop in the presence of the tenant and prepared his report while report prepared by RW 2 S.P. Gupta in the absence of landlady. He categorically admits in his cross examination that he did not give any notice to the land lady before the inspection of the shop, meaning 4 C.R. No.7393 of 2011 thereby, the inspection was made in the absence of the land lady and the report prepared in the absence of land lady is not binding upon her. The learned Rent Controller categorically observed that there is ample evidence on record to show that the level of the shop became down. RW 2 mentioned in his report that the level of the shop is only 9” lower in comparison to the level of the road while Sh. J.C. Mittal PW 4 has mentioned in his report that the level of the floor of the shop was 1¾” lower in comparison of the level of the road. The finding of the learned Rent Controller that the testimony of PW 4 does not inspire confidence on the ground that he does not visit the roof of the shop to see its condition from that angle. Merely non-visiting on the roof is no ground to doubt the veracity of the testimony of the expert witness because the expert examined by the respondent had strengthened the stand of the appellant by mentioning that he visited the roof, which was half covered with the tarpaulin while he admitted that there was no rainy season when he visited the shop while learned Rent Controller has categorically observed that expert examined by the respondent visited during rainy season. When there is no rain, then question of seepage does not arise. He admits that first batten was supported with the pole because that was damaged. He admits that the floor was broken and the same is visible. He further admits that he visited the roof and the roof was half covered with tarpaulin in order to save the leakage of roof during rainy season. It has come in the evidence of RW 2 that there is substantial cracks. So, from the report of PW-4 J.C. Mittal it is crystal clear that the roof was of 5 C.R. No.7393 of 2011 wooden battens and its phatis were eaten by white ants and first batten of the roof was in broken condition and iron support was affixed under this batten and last batten of the roof was completely in damaged condition. Floor was of broken bricks and curten wall was provided in front of main entry for the protection of water to enter into the shop and the main gate was of wooden planks. Back wall and wall towards south and front wall was of mud and the major cracks were developed in the back wall, front wall and the door lintel of front wall was tilted. The report of PW 4 cannot be compared with the report of RW 2 because he did not inspect the shop in the presence of the landy and also did not give any notice. Thus, the report of RW 2 cannot be taken into consideration to establish that the shop in question is safe and fit for human habitation. 17. After detail consideration of rival contentions, examination of the record, condition of the demised premises as per report submitted by Sh. J.C. Mittal PW 4 Ex.PW4/A and the photograph Ex.P-1 to Ex.P- 4, leaves no manner of doubt that the demised premises has been rendered unsafe and unfit for human habitation. It has been pointed out that the demised shop was inspected by PW 4 J.C. Mittal on 29.9.2007 at 11.00 am in the presence of Balwan Singh respondent, petitioner Anita, her husband Sushil Kumar and Balwan Singh refused to sign the inspection report and after inspecting the premises, he clearly declared without entertaining any doubt that the building had become unfit and unsafe for human habitation in totality. This court is of the opinion that the view expressed by J.C. Mittal PW 4 is more 6 C.R. No.7393 of 2011 readily acceptable as compared to the report dated 10.7.2008 prepared by Sh. S.P. Gupta RW 2 because he prepared the report without giving notice to the landlady/appellant. Detail of the report as has been rightly pointed out by learned counsel for the appellant will support the case of landlady because it repeatedly mentioned that the walls of the shop were built in mud mortar and there are major cracks in the front wall and back wall as is clearly visible from the photograph Ex.P-1 to P-4. Therefore, it is not safe to accept the conclusion that the building was safe. A perusal of photograph Ex.P-1 goes to show that though front gate of the shop in dispute is of wooden planks. The door lintel of front wall tilted and wall is having cracks showing the condition of the shop. Merely both sides of the shop in dispute having new shops construction, gave no benefit to the condition of the shop in question. So, there is sufficient evidence on the file to establish that the shop in dispute has lost is utility. So, the observation made in case Inder Dass vs. Hem Raj and others, 1987(2) Rent Control Reporter 476, wherein it is held that substantial part of the building becoming unsafe and unfit for human habitation and tenant liable to be ejected. No matter the part of the building in occupation of the tenant was in good condition. In Ram Nath vs. Shri Kanth, 2000 (1) PLR 679 it is held that the condition of the wall and the roof is very bad. Even the roof loose wooden plank with cracks. It is not that when the building falls one would say that the building is unsafe and unfit for human habitation. Even at this stage, it is patent that the condition of the building is such that the only logical conclusion that can be arrived is that it is unfit 7 C.R. No.7393 of 2011 and unsafe for human habitation. Photograph read with the report of the building expert of the appellant which reconcile clearly show that the condition of the wall and the roof is very bad. Even the roof had loose wooden planks with cracks. It is not when the building falls one would say that the building is unsafe and unfit for human habitation. So, the observation made in this regard is fully applicable to the facts of the present case. In Mange Ram vs. Gurdial Singh @ Gurdial Chand, 1989 (1) Rent Controller Report 700 also it is held that the reason rendering the building unfit and unsafe is irrelevant for determination of right of landlord to seek ejectment of tenant on ground of building having become unsafe and unfit for human habitation. That being legal position, question for consideration would be as to whether the respondent can have the advantage of ratio decidendi of the judgment or not, the answer would be in the negative. The case laws Surinder Singh Babra vs. Bhushan Kumar Sharma, 2003 HRR 515 (P and H), Ram Avtar vs. Murari Lal and another, 2000 HRR 262 (P and Ph), Bharat Singh vs. Ashok Kumar, 2004(1) HRR 53 (P and H) and Dharminder Nath and others of Kapurthala vs. Udham Singh of Kapurthala, 1990 HRR 245 (P and H) relied upon by the counsel for the respondent is not applicable to the facts of the present case.” 5. Aggrieved from the aforesaid judgment of the Appellate Authority, the petitioner-tenant filed the instant petition. 6. Learned counsel for the petitioner has vehemently argued that the Appellate Authority has acted with material 8 C.R. No.7393 of 2011 illegalities in exercise of its jurisdiction and has failed to look into the report of the building expert RW-2, produced by the petitioner for establishing that the shop in question was not unsafe and unfit for human habitation as alleged, on wholly untenable ground that before inspection, the building expert had not given any notice to the respondent-landlady and has not inspected the shop in dispute in her presence, especially when there was no such requirement under the law that the inspection has to be made in the presence of a party. It has been further argued on behalf of the petitioner-tenant that the Appellate Authority has erred in law while drawing a conclusion that the shop in question has become unfit and unsafe for human habitation without there being any material on record proving the said assertion of the respondent- landlady. 7. I have heard learned counsel for the petitioner and perused the impugned judgment and also the documents produced before this Court. 8. The main grievance of the petitioner before this Court is that the expert opinion of the witness produced by the petitioner has been ignored on wholly untenable ground as there is no requirement of law to give notice before inspection by the expert and therefore, the judgment of the Appellate Authority is liable to be reversed, as the Appellate Authority has considered the report of the building expert produced by the respondent-tenant only. 9 C.R. No.7393 of 2011 9. The argument of the learned counsel is misconceived. In fact, even the report of the building expert produced by petitioner-tenant clearly proves that one batten of the roof of the shop in dispute has been broken which has been supported by an iron rod. Not only this, it has also been accepted in this report that the doorframes are damaged. This report also supports the version of the landlady that the walls are of mud and mortar and the level of the shop is also below the road level. This report further talk of cracks in the shop which according to the respondent-landlady, are serious, even expert witness of the petitioner while appearing as RW2 has stated that there are substantial cracks. The floor was broken and even protection has been raised in front of the entrance door from protection of rain water entering into the premises. Thus, landlord is not required to wait for the fall of the building to claim that building has become unfit and unsafe. 10. In view of the aforesaid facts which are supported by the report of the building expert produced by the petitioner himself, this Court is of the opinion that the judgment of the Appellate Authority is based on sufficient evidence on record and thus, no interference is called for with the finding of fact recorded by the Appellate Authority. 11. Dismisssed. December 07, 2011 ( RAKESH KUMAR GARG ) ak JUDGE 10