IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.349 of 2001 DATE OF DECISION : May 20, 2009 Bhagwan Dass .......Petitioner versus Prem Chand ......Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Amarjit Markan, Advocate for the petitioner. Mr. R.K. Aggarwal, Advocate for the respondent. NIRMALJIT KAUR, J. The respondent-landlord filed eviction petition against the petitioner under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, for ejectment of the respondent from the shop, in dispute, on the ground of non-payment of rent and that it had become unfit and unsafe for human habitation with a specific stand that part of the roof of the shop has fallen down besides one of the walls of the single shop and that remaining part of the shop has developed cracks. Upon notice, arrears of rent were paid but, however, they denied that the shop had become unfit and unsafe with a specific objection that the wall and roof alleged to have fallen, was, in fact, demolished by the landlord himself to create a ground for ejectment. The Rent Controller, dismissed the eviction petition. Aggrieved, the respondent-landlord preferred an appeal before the Appellate Court. The Appellate Authority, Sangrur allowed the revision Civil Revision No.349 of 2001 -2- petition of the landlord and held that the shop, in dispute, is in dilapidated condition and is unfit and unsafe for human habitation. The present revision has, therefore, been filed by the petitioner-tenant, wherein, the first argument raised by learned counsel for the petitioner is that the fallen portion was, in fact, damaged due to the conduct of the landlord and the same can be repaired without ejectment. Secondly, he was not able to repair the demolished portion on account of the fact that a suit for permanent injunction had been filed against the tenant by the respondent-landlord, restraining the tenant from repairing the damaged portion. Thirdly, the eviction of the tenant was not necessary for carrying out the necessary repairs and the same could be done without disturbing the possession of the tenant. Lastly, reliance was placed on the judgment, rendered in the case of Piara Lal vs. Kewal Krishan Chopra AIR 1988, SC 1432, Sohan Lal (Died) and others vs. Amar Nath Vol. CII-1992(2) PLR 273 and Shadi Singh v. Rakha AIR 1994 SC 800, wherein, it was held that unless the evidence warranted that the falling down of the roof in one room indicated the damaged condition of the entire building, it could not be concluded that the entire building had become unsafe. The petitioner-tenant also filed an application under Order 41 rule 27 CPC read with Order 26 Rule 9 C.P.C for additional evidence to appoint an Engineer/Local Commissioner in order to facilitate just decision on the question as to whether the shop, in dispute, was in dilapidated condition or not. Learned counsel for the parties were heard at length. After having heard learned counsel for the parties and having Civil Revision No.349 of 2001 -3- gone through the relevant evidence, as pointed out by learned counsel for the parties, I find no ground to interfere with the judgment passed by the Appellate Authority. It is an admitted case of both the parties that the portion of the Southern wall and the roof of shop has fallen down. This fact having been admitted, the only question is as to whether the same has fallen down due to wear and tear of the building or whether the same has been demolished by the landlord. There is absolutely no evidence produced by the respondent to the effect that the landlord had demolished the said portion. The argument that the wall fell due to the space of about 2-3 ft. left between the demised premises and the new shop which was constructed by the respondent-landlord, is liable to be rejected as the same is not supported by any evidence which may lead to a conclusion that it was on account of the space left between two walls which resulted in the collapse of the wall. Such an argument neither appeals to reason nor is supported by any technical evidence. It is, therefore, obvious that the landlord is not responsible for the fall of the wall. The falling of the Southern wall of the demised premises has further resulted in the fall of the roof, leading to an unfit and unsafe building for human habitation. Taking up the argument of the learned counsel for the petitioner-tenant that the falling of one wall and roof of one of the rooms does not mean that the entire building or a substantial portion of it has become unfit and unsafe for human habitation, is liable to be rejected. This argument is not available to the petitioner on account of the simple reason that the entire demised premises comprised only of one room and a verandah. There is no dispute Civil Revision No.349 of 2001 -4- with the proposition of law as laid down in the case of Piara Lal (supra) that falling down of the one roof of one room is not indicative of the damaged and weak condition of the entire building. As submitted above, the present demised premises comprised only of one room and verandah. As such, one wall and part of the roof of this only single room having collapsed, the inevitable conclusion is that the demised premises is damaged, unsafe and unfit for human habitation, while in the judgment rendered by the Hon'ble Apex Court, in the case of Piara Lal (supra) and relied upon by the learned counsel for the petitioner, there was more than one room and was a building comprising of number of rooms. Hence, the authority does not help the petitioner in the facts of the present case. I was also taken through the photographs Exhibit A-11 to A-13 which show that the business is continuing in the said shop by covering this damaged part of the roof with polythene sheets. The report of Dev Raj Gupta (Retd.) S.D.O., P.W.D. (B&R) (Exhibit A-6) is relevant to understand the damaged condition of the said room, which is as under :- “ The wooden beam and wooden battens have become weak with the passage of time and are affected by termite. They emit hallow sound when struck with a wooden stick. I have checked them minutely by stricking them with a strong wooden stick. Most of the wooden battens are sagged due to the load of the roof itself. The fallen portion of the roof is covered with black polythene sheet. There is no proper disposal of rain water. Much of the rain water is getting absorbed in the remaining roof of the shop, thus terming the roof of the shop unfit and unsafe for human use. During rains, water enters the shop, thus turning the floor of the shop all muddy. I am of the definite opinion that the existing roof of the shop is risky and can give way at any time. It is not fit for repairs. The CGI sheets of the front tin shed are rusty. These are all rotten. Big holes have appeared in these sheets. The tin shed is covered with black polythene sheets to check Civil Revision No.349 of 2001 -5- rain water. The masonry of the corner pillar is in mud- mortar. The floor of tin-shed/verandah is laid in flat bricks. The cement plaster over the flat bricks is peeling off. The CGI sheets of tin shed are resting on front wooden chowkete.” Learned counsel for the petitioner, on the other hand, while relying on the evidence of RW1 and his report, submitted that the damage was not such that the same could not be repaired without evicting the tenant and the same could have been repaired by the tenant himself, in case, a suit for permanent injunction had not been filed against him and that even now, the repairs can be effected without evicting the tenant. He relied on the judgment rendered by the Hon'ble Apex Court in the case of Shadi Singh (supra) to support his argument. It may have been possible to accept the prayer of the petitioner-tenant to that extent but, however, in the facts of the present case, the same is not justified and is impractical. As stated earlier, the demised premises comprises of only one room and verandah. It is not understood as to how the roof of this single room can be replaced and the wall reconstructed without evicting the tenant. Moreover, such a prayer can only be allowed, in a case, where only repair has to take place and not in a case, where the premises have become unfit for human habitation. In this case, there is no further space or another room where the tenant can shift to enable the repair as the repair of the roof is fundamental in character and cannot be carried out without evicting the tenant from the building. Finally, the petitioner prayed that his application under Order 41 Rule 27 CPC read with Order 26 Rule 9 C.P.C., be allowed and a Local Commissioner may be appointed to submit his report as to whether the shop, in dispute, was in a dangerous condition or not and he may be Civil Revision No.349 of 2001 -6- allowed to lead his additional evidence to that effect, in view of the Supreme Court judgment reported in the case of Radhey Shyam Rastogi vs. Ashish Kumar and another 2008(4) RCR (Civil) 642. The Court would have had no hesitation in appointing a Local Commissioner to find out the present status of the shop. However, the same is not necessary in the facts of the present case. A Local Commissioner was appointed by the trial Court and his report is already on record as Exhibit A- 4. Besides, the report of the Local Commissioner, it is an admitted position that the wall of the Southern side of the shop, in dispute, has fallen. Due to the collapse of the wall, the portion of the roof of the shop, in dispute, has also fallen. The portion of the roof, which has fallen, is covered with polythene sheets and the falling portion is about 5' x14”. It is also admitted that the entire premise comprises of one room and one verandah. It is not a case of number of rooms or huge building, where a collapse of one of the rooms, does not mean that the entire building has become unfit for human habitation. The demised premises has no scope for the tenant to shift into another portion of the building to permit repair of the remaining part of the building. Thus, the repairs, in the present case, being fundamental in character and with no other space left to shift, the same cannot be repaired while the tenant remains in occupation. Thus, the report of the Local Commissioner being already on record and there being no doubt about the unfit and dangerous condition of the premises, there is no merit in the application under Order 41 Rule 27 CPC read with Order 26 Rule 9 C.P.C., and the same is, accordingly, dismissed. In view of the above facts, I find no ground to interfere with the Civil Revision No.349 of 2001 -7- judgment passed by the Appellate Court and the revision petition is, accordingly, dismissed. However, in order to avoid undue harassment to the petitioner-tenant, two months' time is granted to him to make alternative arrangement and hand over the vacant possession of the demised premises, in dispute to the respondent-landlord. (NIRMALJIT KAUR) JUDGE May 20, 2009 gurpreet Whether to be referred to the Reporter : Yes/No