Full Judgment Text
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PETITIONER:
PIARA LAL
Vs.
RESPONDENT:
KEWAL KRISHAN CHOPRA
DATE OF JUDGMENT06/05/1988
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1988 AIR 1432 1988 SCR Supl. (1) 202
1988 SCC (3) 51 JT 1988 (2) 502
1988 SCALE (1)1012
ACT:
East Punjab Urban Rent Restriction Act, 1949: Section
13(3)(a) (iii)-Tenant-Eviction of-On ground premises became
unsafe and unfit for human habitation-Falling down of roof
in one room-Whether sufficient for a declaration building
unsafe and unfit for human habitation.
HEADNOTE:
The suit premises consisted of four rooms in the ground
floor where the appellant-tenant was running his office. One
room in the first floor was in the possession of the
landlord-respondent. The roof of one room in the rear side
of the leased portion had fallen down, and it has been
replaced by the appellant after obtaining orders of the Rent
Controller under Section 12 of the East Punjab Urban Rent
Restriction Act, 1949.
The landlord filed a petition for eviction on the
ground of bona fide requirement of the premises for his own
use and occupation, and change of user of the premises by
the tenant. As he failed before the Rent Controller, he
preferred an appeal and during the pendency of the appeal he
obtained the court’s order and amended the petition and
raised an additional ground under Section 13(3)(a)(iii) of
the Act, seeking eviction of the tenant on the ground that
the leased premises had become unsafe and unfit for human
habitation. The Appellate Authority called for a findings on
this additional ground from the Rent Controller and the
finding went against the landlord. The Appellate Authority
concurred with the Rent Controller on the said finding and
dismissed the appeal.
The respondent preferred a Civil Revision Petition
before the High Court which sustained the case, and ordered
the eviction of the appellant under Section 13(3)(a)(iii) of
the Act. The High Court came to the finding that the falling
down of the roof of one of the rooms afforded by itself a
cause of action to the landlord to seek eviction of the
tenant under the said section, and the said cause of action
would subsist even if the tenant had repaired the roof under
orders of the Rent Controller under Section 12 of the Act.
203
In the appeal to this Court by the tenant it was
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contended that the Rent Controller and the Appellate
Authority had concurrently found that the building was
neither unsafe nor unfit for human habitation and as such
the High Court was not justified in interferring with those
findings especially when they were findings of fact. On
behalf of the respondent, the appeal was contested on the
ground that the falling down of the roof in a room was
indicative of the damage condition of the building and,
therefore, the High Court was fully justified in ordering
eviction, and that the replacement of the roof by the
appellant would not extinguish the right which had accrued
to the respondent under Section 13(3)(a)(iii) to seek
recovery of the possession of the leased premises.
Allowing the appeal,
^
HELD: 1. The High Court was not justified in allowing
the revision and directing eviction of the appellant under
Section 13(3)(a)(iii). [206H]
2. The High Court proceeded on the erroneous assumption
that the falling down of the roof in one room was itself
sufficient to warrant a finding that the entire building had
become unfit and unsafe for human habitation and called for
a declaration to that effect. [207F]
In the instant case, the admitted position was except
for the roof in one of the rooms falling down, no other
damage to the building was noticed and in such
circumstances, there is no scope for holding that a
substantial or major part of the building had become unfit
and unsafe for human habitation and hence an order of
eviction was called for. [208G-H]
3. The High Court had wrongly assumed that besides the
falling down of the roof, one of the walls has also
crumbled. This assumption was a mistaken one because the
expert witnesses examined during the trial by the parties
have spoken about the good condition of three walls alone of
the room and not the fourth because they are the outer walls
of the room while the fourth wall was a common wall for the
room in question, and the adjoining room and hence there was
no need to certify its good condition. [205E-F]
4. The High Court had also failed to notice two factors
of relevance: viz. (1) that the respondent had given his
consent to the Rent Controller granting permission under
Section 12 of the Act to the appel-
204
lant to replace the roof, and (2) that in spite of the
alleged cause of action having arisen due to the falling
down of the roof, the respondent did not seek amendment of
the petition so as to seek eviction of the appellant on the
additional ground under Section 13(3)(a)(iii) but instead he
chose to prosecute his petition only on the original ground
for eviction set forth therein and only after falling before
the Rent Controller and preferring an appeal to the
Appellate Authority, he deemed it necessary to amend the
petition and ask for eviction of the appellant on the
additional ground. [207C-E]
5. The aforesaid conduct of the respondent clearly
reveals that he himself has not attached any significance to
the falling down of the roof in one of the rooms and has not
seriously considered the sustainable cause of action that
had arisen to him under Section 13(3)(a)(iii) for seeking
eviction of the appellant. [207E-F]
Balbir Singh v. Hari Ram, AIR 1983 Punjab and Haryana
132; Chander Mohini v. Jiva Singh, [1983] 2 RCJ 523 and
Sardarni Sampurna Kaur v. Sant Singh & Anr., [1983] PLR 449,
distinguished.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1682 of
1984.
From the Judgment and order dated 23.12.1983 of the
Punjab and Haryana High Court in Civil Revision No. 959 of
1979
V.M. Tarkunde, A.D. Sikri for the Appellant.
Hardev Singh and R.S. Sodhi for the Respondents.
The judgment of the Court was delivered by
NATARAJAN, J. What falls for consideration in this
appeal by special leave by a tenant against the judgment of
the High Court of Punjab and Haryana in a Civil Revision is
whether the High Court had transgressed its revisional
powers in interfering with the concurrent findings rendered
by the Rent Controller and the Appellate Authority and
ordering the eviction of the appellant herein from the
leased premises and secondly whether the High Court had
erred in holding that the leased premises had become unsafe
and unfit for human habitation as envisaged in Section
13(3)(a)(iii) of the East Punjab Urban Rent Eviction Act,
1949 (hereinafter the Act).
205
The respondent’s petition for eviction was originally
based on other grounds such as bona fide requirement of the
premises for own use and change of user of the premises by
the tenant. As he failed before the Rent Controller, the
respondent preferred an appeal and during the pendency of
the appeal he obtained orders and amended the petition and
raised an additional ground under Section 13(3)(a)(iii) for
seeking the eviction of the appellant viz. the leased
premises had become unsafe and unfit for human habitation.
The Appellate Authority called for a finding on the
additional ground from the Rent Controller and the finding
went against the respondent. The Appellate Authority
concurred with the Rent Controller on the said finding and
dismissed the appeal. Before the appellate Authority the
respondent did not seriously press the original grounds on
which eviction was sought for and laid stress only upon the
ground under Section 13(3)(a)(iii) of the Act. The
respondent then preferred a Civil Revision wherein the High
Court sustained his case and ordered the eviction of the
appellant under Section 13(3)(a)(iii) and hence the present
appeal by the appellant-tenant.
Section 13(3)(a)(iii) was resorted to for seeking
eviction of the tenant on the footing that one room in the
rear-side of the leased premises had fallen down. We may
state, even at this juncture that the High Court had wrongly
assumed that besides the falling down of the roof, one of
the walls had also crumbled. This assumption was a mistaken
one because the expert witnesses examined during the trial
by the parties have spoken about the good condition of three
walls alone of the room and not the fourth because they are
the outer walls of the room while the fourth wall was a
common wall for the room in question and the adjoining room
and hence there was no need to certify its good condition.
It was therefore wrong for the High Court to have assumed
that only three walls of the room were in good condition and
not the fourth wall.
The High Court deemed it necessary to allow the
Revision and set aside the order of the Rent Controller and
the Appellate Authority because of its view that the falling
down of the roof of one of the rooms afforded by itself a
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cause of action to the landlord to seek eviction of the
tenant under Section 13(3)(a)(iii) and the said cause of
action would subsist even if the tenant had repaired the
roof under orders of the Rent Controller, under Section 12
of the Act. It is necessary to mention here that during the
pendency of the proceedings before the Rent Controller, the
appellant obtained the permission of the Rent Controller
under Section 12 to replace the roof fallen down and re-
206
cover the cost from the respondent since the respondent had
failed to do the work himself. The High Court relied upon
two decision Balbir Singh v. Hari Ram, AIR 1983 Punjab and
Haryana 132 and Chander Mohini v. Jiva Singh, [1983] 2 RCJ
523 for holding that once a cause of action ensued under
Section 13(3)(a)(iii), it would subsist inspite of any
repairs effected by the tenant. It also relied on another
decision Sardarni Sampurna Kaur v. Sant Singh & Anr., [1983]
PLR 449 for holding that even if the rest of the building
was in good condition, the falling down of the roof of one
room would constitute sufficient material to sustain a
landlord’s claim under Section 13(3)(a)(iii) of the Act for
seeking the tenant’s eviction.
A few facts may now be set out. The leased portion
comprises of four rooms in the ground floor where the
appellant is running his office. There is a room in the
first floor in the possession of the respondent himself but
we are not concerned with it. It is common ground that the
roof of one room in the rear-side of the leased portion had
fallen down and it had been replaced by the appellant after
obtaining orders of the Rent Controller under Section 12.
The appellant’s contention is that the falling down of the
roof in one of the four rooms would not by itself render the
entire building unsafe and unfit for human habitation as
envisaged under Section 13(3)(a)(iii) of the Act and, as
such, the High Court had erred in ordering eviction under
the said provision. It was further urged that the Rent
Controller and the Appellate Authority had concurrently
found that the building was neither unsafe nor unfit for
human habitation and as such the High Court was not
justified in interfering with those findings especially when
they were findings of fact. In reply to the above said
contentions, the learned counsel for the respondent argued
that the falling down of the roof in a room was indicative
of the damaged condition of the building and, therefore, the
High Court was fully justified in ordering the eviction of
the appellant under Section 13(3)(a)(iii) of the Act. It was
further urged that the replacement of the roof by the
appellant would not extinguish the right which had accrued
to the respondent under Section 13(3)(a)(iii) to seek
recovery of possession of the leased premises and the High
Court had rightly adverted to this aspect of the matter also
while allowing the revision filed by the respondent.
On a careful consideration of the matter with reference
to the contentions put-forth by the learned counsel for the
parties, we are clearly of opinion that the High Court was
not justified in allowing the revision and directing the
eviction of the appellant under Section 13(3)(a)(iii). It is
true that a roof of one of the rooms on the rear-side
207
had fallen down and required replacement but there was no
evidence whatever that the entire building or a substantial
portion of it was in a damaged condition and consequently
the building as a whole had become unfit and unsafe for
human habitation. Unless the evidence warranted an inference
that the falling down of the roof in one room was fully
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indicative of the damaged and weak condition of the entire
building and that the collapse of the roof was not a
localised event, we fail to see how the High Court could
have concluded that the entire building had become unsafe
and unfit for human habitation. In fact, the appellant had
replaced the roof only at a cost of about Rs.200 and this
would independently show that the damage that had occurred
could not have been of a serious or disquieting nature. The
High Court has failed to notice two factors of relevance,
viz., (1) that the respondent had given his consent to the
Rent Controller granting permission under Section 12 of the
Act to the appellant to replace the roof and (2) that
inspite of the alleged cause of action having arisen due to
the falling down of the,roof, the respondent did not
immediately seek amendment of the petition so as to seek
eviction of the appellant on the additional ground under
Section 13(3)(a)(iii) but instead he chose to prosecute his
petition only on the original grounds for eviction set forth
therein and only after failing before the Rent Controller
and preferring an appeal to the Appellate Authority, he
deemed it necessary to amend the petition and ask for
eviction of the appellant or the additional ground under
Section 13(3)(a)(iii). The above said conduct of the
respondent would clearly reveal that he himself had not
attached any significance to the falling down of the roof in
one of the rooms and had not seriously considered that a
sustainable cause of action had accrued to him under Section
13(3)(a)(iii) for seeking the eviction of the appellant. The
High Court has not only failed to appreciate these factors
but has also proceeded on the erroneous assumption that the
falling down of the roof in one room was by itself
sufficient to warrant a finding that the entire building had
become unfit and unsafe for human habitation and called for
a declaration to that effect. It is this basic error which
has affected the reasoning of the High Court lead the High
Court to apply the ratio laid down in certain cases where
the facts and circumstances were entirely different.
What arose for consideration in Balbir Singh’s case
(supra) was whether a tenant would stand deprived of his
right under Section 12 to carry out repairs of the tenanted
premises by reason of an application filed by a landlord
under Section 13(3)(c) of the Haryana Urban Control on Rent
and Eviction Act (Corresponding to Section 13(3)(a)(iii) of
the East Punjab Urban Rent Restriction ’Act, 1949) and con-
208
versely whether a landlord would stand deprived of his right
to seek eviction of his tenant under Section 13(3)(c) by
reason of an order passed under Section 12 empowering the
tenant to carry out repairs to the tenanted premises. It was
in that context, the High Court held that the two sections
operated in their respective spheres and they were not
mutually destructive of each other and consequently, when a
right accrued to a landlord under Section 13(3)(c) of the
Haryana Act to seek eviction of a tenant, the right would
not get extinguished on account of an order passed under
Section 12 of the Act. In other words, it was held that once
a cause of action had arisen for a landlord to seek eviction
under Section 13(3)(c) of the Haryana Act that the said
cause of action would ensure to the benefit of the landlord
in spite of the tenant effecting repairs to the building for
his benefit in pursuance of permission obtained under
Section 12 of the Act. The decision does not lay down that
each and every damage to a building, without reference to
the seriousness of its nature or to the condition of the
building as a whole would by itself entitle a landlord to
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invoke Section 13(3)(a)(iii) to seek eviction of the tenant.
In Chander Mohini’s case (supra) wherein Balbir Singh’s case
(supra) was followed, it was held that if the tenants had
pulled down the roof of one of the rooms under their tenancy
and replaced the same, obviously for their own convenience
and for pre-empting the landlord from filing a petition for
eviction under Section 13(3)(a)(iii), the landlord would
undoubtedly, acquire a cause of action under Section
13(3)(a)(iii) as soon as the tenants had pulled down the
roof of the room and his rights could not be defeated by the
tenants by the replacement of the roof of their own
volition. The other decision in Sardarni Sampurna Kaur v.
Sant Singh has also no relevance because it was found in
that case that even though the portion under the ocupation
of the tenant was in a sound condition, a substantial
portion of the composite building had become unfit and
unsafe for human habitation. In that situation, the High
Court held that what was relevant for consideration for
passing an order of eviction under Section 13(3)(a)(iii) was
the condition of the building viewed as a whole and not in
parts or blocks. In the instant case, the admitted position
is that except for the roof in one of the rooms falling
down, no other damage to the building was noticed and in
such circumstances, there is no scope for holding that a
substantial or major part of the building had become unfit
and unsafe for human habitation and hence an order of
eviction was called for. It is therefore obvious that the
ratio laid down in the earlier decisions were not at all
attracted to the facts of the case and the High Court had
wrongly applied them because of its erroneous assumptions.
209
Learned counsel for the respondent tried to contend
that apart from the building having become unsafe and unfit
for human habitation, the respondent had also sought
eviction on the ground he was genuinely in need of
additional accommodation but the Appellant Court had
unjustly rejected the plea by saying that since the
respondent was jointly living with his son, he can secure
additional accommodation from out of the portion in his
son’s occupation. We do not find any merit in this
contention because the requirement of the building on this
ground was not canvassed before the High Court. Even the
Appellant Authority has observed that the only ground
pressed for seeking eviction of the tenant was under Section
13(3)(a)(iii) and the other grounds were not pressed
seriously and only incidentally a halfhearted argument was
advanced regarding the requirement of the leased premises by
way of additional accommodation.
In the result, the appeal is allowed and the judgment
of the High Court is set aside. The respondent’s application
for eviction of the appellant will stand dismissed as
ordered by the Rent Controller and the Appellate Authority.
The parties are, however, directed to pay and bear their
respective costs.
N.V.K. Appeal allowed.
210