C.R. No.1488 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No.1488 of 2008
Date of Decision: 25.8.2008
Smt.Geeta Devi and others .....Petitioners
Vs.
Smt.Sushila ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr. R.S. Mittal, Sr.Advocate with Mr. Atul Gaur, Advocate
for the petitioners.
Mr.Ashok Aggarwal, Sr.Advocate with Mr.Parminder Singh,
Advocate for the respondent-caveator.
…
RAJIVE BHALLA, J
The petitioners-tenants lay challenge to the order dated
14.2.2008 passed by the Appellate Authority, Bhiwani, accepting the appeal
filed by the landlady, reversing the order passed by the Rent Controller,
Charkhi Dadri dated 30.7.2004 and ordering their ejectment.
The respondent-landlady filed a petition for ejectment of
Krishan Patwari, the tenant, who has since passed away and is now
represented by the petitioners on the grounds of non payment of rent and
that the demised premises had become unfit and unsafe for human
habitation as the walls had developed cracks and water was leaking from the
roof.
In response, the tenant did not deny the damage to the building
but asserted that the damage could be repaired. The damage was attributed
to the of age of the house, floods that had inundated the house and
C.R. No.1488 of 2008 2
persistent neglect by the previous landlord and the present landlady,and as a
result, the Western walls, the front portion had developed cracks and the
roof and parts of the verandah walls had started leaking. The tenant
therefore served a legal notice dated 9.7.1996 calling upon the landlady,
to repair the tenanted premises. On her failure to do so, the tenant filed a
petition under Section 12 of the Haryana Urban (Control of Rent and
Eviction) Act, 1973 (hereinafter referred to as `the Act’) praying that the
landlady be directed to carry out repairs. It was, therefore, asserted that as
the tenanted premises are repairable, the ejectment petition be dismissed.
After appraisal of the respective pleadings, the learned Rent Controller
framed the following issues :-
“i). Whether the demised premises have become unfit and
unsafe for human habitation and, therefore, respondent is
liable to be evicted from the same ? OPP
ii). Whether tender of rent made by the respondent to the
petitioner is invalid and so respondent is liable to be
evicted ? OPP.
iii) Whether petitioner has no locus-standi to file the
petition ? OPD.
iv) Whether the petition is not maintainable ? OPR.
v) Whether petition is false and frivolous and petitioner has
not come in the Court with clean hands and petition has
been filed in order to harass the respondent and, therefore,
he is entitled to special costs ? OPR.
vi) Relief.”
The issue with respect to non payment of rent was decided in
C.R. No.1488 of 2008 3
favour of the tenants, as arrears of rent were tendered. On the issue,
whether the tenanted premises were unsafe and unfit for human habitation,
the learned Rent Controller held that the landlady had failed to establish the
extent and nature of the damage and merely because the tenanted premises
remained under water for a month or had developed cracks, it could not be
held that they had become unsafe and unfit for human habitation. The
ejectment petition was, therefore, dismissed.
The respondent-landlady filed an appeal. The Appellate
Authority accepted the appeal and reversed the order passed by the Rent
Controller and, therefore, ordered the tenants’ ejectment.
Counsel for the petitioners submits that the Appellate
Authority, Bhiwani, committed serious errors, while reversing the order
passed by the Rent Controller. The learned Rent Controller rightly held
that the landlady had failed to establish, by any cogent or reliable evidence,
the extent and nature of the damage caused to the tenanted premises or that
the admitted damage was sufficient to hold that the building is unsafe and
unfit for human habitation. The landlady merely produced AW-1 Gian
Chand, a Municipal Engineer, in support of her allegation that the building
has become unsafe and unfit for human habitation. This deposition was
rightly rejected by the Rent Controller, as vague and unworthy of credence
as the witness was not a qualified Architect or an Engineer. It is submitted
that apart from the statement of AW-1 Gian Chand, the site plan Ex.A-1
and her self serving statement, the landlady did not produce any other
evidence, to establish that the building has become unsafe and unfit for
human habitation. The learned Rent Controller placed reliance upon the
statement of RW-2 Vikas Bagla, the expert, produced by the petitioners,
C.R. No.1488 of 2008 4
who submitted an opinion that the building requires minor repairs valued at
Rs.7500/-. His statement and report Ex.R.4 were unfairly discarded by the
Appellate Court by holding that the report was contrary to the admissions
made by Sh.Krishan Patwari, the original tenant and predecessor in interest
of the petitioners, in his petition filed under Section 12 of the Act, praying
for repair of the premises. It is argued that the repairs as prayed for were
minimal and could not be construed as an admission that the building had
become unsafe and unfit for human habitation.
It is also argued that the Appellate Authority erred in placing
undue significance on dismissal of the application for repairs, as
infructuous. From the aforementioned order, the appellate Court drew an
untenable inference that repairs effected, without waiting for final orders,
indicates the tenant attempt to conceal the fact that the building is unsafe
and unfit for human habitation. The onus to establish that the building is
unsafe and unfit for human habitation, lies squarely upon the landlady, but
she has failed to discharge this onus. The Appellate Authority should have,
therefore, dismissed the appeal.
It is further argued that mere existence of cracks or seepage in
the roof and the walls, in the absence of any evidence of their extent and
nature, would not give rise to an inference that the building has become
unsafe and unfit for human habitation. It is further submitted that Section
108(f) of the Transfer of Property Act postulates that where a lessor
neglects, within reasonable time, to effect repairs, the lessee may repair the
building, at the cost of the lessor. The original tenant therefore did not
commit any error in repairing the premises.
Counsel for the respondent/landlady, on the other hand, submits
C.R. No.1488 of 2008 5
that the Appellate Authority rightly reversed the order passed by the Rent
Controller. As is apparent from the order passed by the Rent Controller,
much significance was not attached to the admissions made in the
application seeking repairs. In this application, the tenant admitted that the
demised premises had remained under water for a period of one month and
as a result, the walls developed cracks and water started leaking from
various parts. Instead of waiting for the outcome of the petition filed for
repair of the tenanted premises, the tenant unilaterally and without
permission, of the Rent Controller, repaired the building so as to conceal the
true nature and extent of the damage. The original tenant stepped into the
witness box but his answers to questions, as to the extent and nature of
repair carried out, were evasive and vague. For a building to be unsafe and
unfit for human habitation, it is not necessary that the building should
collapse or should be in such immediate and imminent danger of collapse,
as would warrant instant ejectment. The appellate Court, therefore, rightly
drew an adverse inference against the petitioners and accepted the appeal.
It is further submitted that the report Ex.R.4 submitted by
Vikas Bagla was rightly rejected by the appellate Court. The report lacks
details and was submitted after the premises were repaired. It is, therefore,
asserted that as the order passed by the Appellate Authority does not suffer
from any error of jurisdiction or of law, the revision petition be dismissed.
I have heard learned counsel for the parties and perused the
orders passed by the Rent Controller as also the Appellate Authority.
Large tracks of Charkhi Dadri, including the tenanted premises
were inundated by flood waters in September 1995. Admittedly, the
tenanted premises are an old building. It is not denied, by the petitioners
C.R. No.1488 of 2008 6
and is in fact asserted in their petition, filed under Section 12 of the Act, for
repair of the tenanted premises( Ex.A-3 ),and in their written statement that
the tenanted premises remained submerged under 6 ft. of water for more
than one month. It is the positive case of the petitioners that as a result of
this inundation, the tenanted premises were damaged, three walls developed
cracks and the roof started leaking. It is, therefore, apparent that as per
the defence set up by the deceased tenant, the building was damaged,its
walls had developed cracks and there was seepage from the roof. The only
point at issue, therefore, is, whether the admitted damage was sufficient for
the Appellate Authority to infer that the tenanted premises had become
unsafe and unfit for human habitation. Both the learned Rent Controller and
the Appellate Authority have recorded diametrically opposite opinions in
respect thereof.
The learned Rent Controller after rejecting the report submitted
by the landlady’s expert,has placed reliance upon a report submitted by one
Vikas Bagla, the expert produced by the petitioners. This report was
rejected by the first appellate Court, as the original tenant admitted to the
existence of cracks in the walls and seepage in the roof, but the report
Ex.R.5, was silent on these points and failed to make a reference to the
nature of the building, the strength of the foundation and its condition. This
report was prepared, after the original tenant unilaterally carried out repairs,
without waiting for the decision of his application praying for repair. No
infirmity or illegality is discernible from the Appellate Court’s decision to
reject the report.
The first appellate Court considered the averments in the
petition filed for repair of the tenanted premises and in the written statement
C.R. No.1488 of 2008 7
and rightly held that the tenant had admitted to the existence of cracks
and seepage in the building. The tenant without the permission of the Rent
Controller and without waiting for the decision of the petition filed for
repair of the tenanted premises, carried out repairs in the tenanted premises.
The petition for repair of the tenanted premises was, therefore, dismissed as
infructuous. The Appellate Authority rightly drew an inference from the
tenant’s conduct, referred to herein above that he had effected repairs so as
to conceal the true extent of the damage to the tenanted premises. The
appellate Court also held that the original tenant had failed to answer a
specific question, as to the nature and extent of repairs carried out by him.
From the above facts an inference was rightly drawn that that the building
had become unsafe and unfit for human habitation. It would, therefore, be
necessary to reproduce the relevant extract from the judgement of the
Appellate Authority :-
“It may be recalled that it is the own case of the respondent
tenant in the petition Ex.A/3 and the notice Ex.PX that the
building had remained submerged under water for a long period
on account of flood in the month September, 1995. This
architect went to add that the building can be repaired at a cost
of Rs.7500/-, which part of his report has been blindly relied
upon by the Rent Controller by using the word that the said
amount is “merely” 5 percent of the total costs of the house.
The learned Rent Controller lost sight of the fact that the rent of
the premises in question is Rs.25/- per month equivalent to
Rs.300/- per annum and the amount of Rs.7500/- considered by
the Rent Controller to be an insignificant amount, would be
C.R. No.1488 of 2008 8equivalent to twenty five years rent of the premises in question.
Reverting to the report Ex.R/5 of the report of RW1 Vikas
Bagla above named, it may be noticed that he has admitted
during his cross-examination that when he inspected the
premises in question, there were no cracks in the walls and he
did not remove the plaster from any portion to find out the
condition of the wall. At the cost of repetition, it may be
recalled that it is the own case of the tenant that as per his
above reoffered application Ex.A/3, three walls in all had
developed cracks and over head roof had started leaking. An
overall appraisal of the testimony of this witness reveals that
his report Ex.R/5 is not such upon which implicit reliance
could have been placed as done by the Rent controller.
XXX XXX XXX
The fact of such offering of compensation qua damage to the
premises in question is yet another circumstance showing that
the premises in question were indeed damaged and the extent of
damage as per recital in the petitioner Ex.A-3 filed by the
tenant itself reveals that it had resulted in cracks in the walls,
leading to leakage from the roof. Obviously, the extent of
leakage was so great that the deceased tenant did not wait for
the orders of the Rent Controller pursuant to his application
Ex.A-3 filed under Section 12 of the Act and chose to himself
carry out the repairs, although a tenant is not competent to do
so. Observations of own Hon’ble High Court in the case titled
as Jai Dev Singh V. M.L. Kapoor reported in 2007(2) RCR
C.R. No.1488 of 2008 9(Civil) 654 may be read to advantage in this context wherein it
has been observed inter alia that the landlord is not required to
carry out material repairs and the landlord can rather seek
eviction of tenant if the building requires large scale re;pairs
and has outlived its utility.
XXX XXX XXX
It may be highlighted in this context that as per recital in the
notice Ex.PX admittedly sent by the tenant to the landlord, the
premises in question had remained submerged for about one
month under six feet of water. Such prolonged submersion of
building under such huge quantity of water would obviously
damage the building greatly which it apparently did on account
of large cracks appeared in the walls and consequent leaking
and the tenant resorted to repair thereof without the permission
of the Rent Controller though so required thereby rendering
himself liable to eviction.”
A submission, by counsel for the petitioners that even if the
walls had developed cracks and part of the roof was leaking, these facts
would not by themselves lead to an inference that the building had
become unsafe and unfit for human habitation, merits rejection. A
considered appraisal of the facts, particularly the age of the building, the
fact that it remained submerged under flood waters, the fact that the tenant
admitted the existence of cracks and leakage in the roof, the fact that the
original tenant filed a petition for repair of the tenanted premises, but
instead of waiting for its outcome,proceeded to repair the premises
C.R. No.1488 of 2008 10
unilaterally, compel me to hold that the learned Appellate Authority rightly
concluded that the building was unsafe and unfit for human habitation. A
tenant shall not, by an unilateral act of repair, except where the repairs are
minor and inconsequential, defeat a landlord’s right to seek ejectment and
the Rent Controller’s statutory jurisdiction to examine whether the building
has become unsafe and unfit for human habitation. For the above
conclusion, reference may be made to Balbir Singh V. Hari Singh, 1982(2)
Rent Law Reporter 463 and Som Dutt and others V. Vidhya Parkash,
2003 (1) RCR 503.
Another argument that the cracks and the seepage in the
building could be repaired by expending a nominal sum of money, as
pointed out by the building expert examined by the petitioners, cannot be
accepted. The building was inspected after the tenant had effected repairs.
The tenant, who was facing, a petition for ejectment, on the ground that
the building had become unsafe and unfit for human habitation carried out
repairs without waiting for the decision of the Rent Controller on his
application for directing the landlord to repair the building. A presumption
was, therefore, rightly raised against the tenant that in case repairs had not
been carried out, the landlord would have succeeded in establishing that
the building had become unsafe and unfit for human habitation. It would
also be necessary to mention here that this inference, drawn against the
tenant is fortified by the fact that when the original tenant stepped into the
witness box, his reply to a question as to the nature and extent of the repairs
effected by him was vague and evasive.
An argument that Section 108(f) of the Transfer of Property
Act, entitles a tenant to effect repairs, if the landlord ignores to do so, does
C.R. No.1488 of 2008 11
not advance the petitioner’s case in any manner. Section 12 of the Act,
confers a right upon a tenant to seek an order for repairs. A tenant, who
approaches a Court under Section 12 of the Act, would be required to wait
and abide by the decision of the Rent Controller and shall not during the
pendency of such an application, effect repairs unilaterally, more
particularly, where an ejectment petition is pending.
In view of what has been stated herein above, as the impugned
order, passed by the Appellate Authority, holding that the building has
become unsafe and unfit for human habitation, thus, requiring the
petitioners ejectment does not suffer from any error of jurisdiction or of law,
the revision petition is dismissed with no order as to costs.
25.8.2008 (RAJIVE BHALLA) GS JUDGE