Dev Samaj Society vs Sant Lal on 21 November, 2008

            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 2

(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),
Civil Revision No.5226 of 2007 3

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
Civil Revision No.5226 of 2007 4

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