JUDGMENT
V.M. Jain, J.
1. This revision petition has been filed by the landlord, against the judgment passed by the appellate authority, whereby the appeal filed by the tenant was allowed, order passed by the Rent Controller was set aside and the ejectment petition filed by the landlord was dismissed.
2. Facts in brief are that Ram Sarup, landlord, filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) against Kishan Lal, tenant, seeking his ejectment from the residential portion on the first floor, which was on rent with the respondent tenant. In the petition, it was alleged that respondent had taken the first floor on rent for residence, on a monthly rent of Rs. 30/- plus house tax in the year 1962-63 and it was an oral tenancy. It was alleged that few karis of the last khan of the shop on the ground floor were damaged and likewise the respondent tenant by his own act and conduct had damaged two karis of the last room on the first floor and thus the building in question was likely to collapse at any time. It was alleged that the respondent tenant was liable to be ejected from the disputed premises, inter alia on the ground that he was in arrears of rent w.e.f. 1.12.1983, till the date of filing of the petition ! Rs. 30/- per month besides payment of house tax and that the building was in a dilapidated condition and the karis of the roof of one interior khan of the shop, having its roof as floor of the building under tenancy and last room of the first floor were likely to fall down. It was alleged that condition of the building was so dangerous that it may collapse at any time and that the building had become unfit and unsafe for human habitation. It was further alleged that respondent was of a quarrelsome nature and was a source of nuisance to the property and others in the area. Said petition was contested by the respondent, by filing written reply. It was admitted that the respondent was residing on the first floor of the building. It was alleged that there was no agreement to pay house tax and respondent had never paid the same. It was alleged that karis of the roof are in the same condition from the very beginning and no damage has been caused to the building by the respondent. It was denied that the building was likely to collapse. It was further alleged that respondent was not liable to be evicted from the demised premises, on any of the grounds taken in the petition. It was alleged that the respondent had paid arrears of rent from 1.12.1983 to 31.5.1985 @ Rs. 30/- per month, besides house tax, interest and cost and the same was accepted by the landlord and that the respondent tenant was not liable to be evicted from the tenanted promises on the ground of non-payment of rent. It was denied that the building was in a dilapidated condition. It was alleged that the respondent had never visited the last khan of the ground floor of the shop, as the same was in possession of the petitioner landlord. It was alleged that to the knowledge of the respondent, no repairs have been made by the petitioner to the building with an intention that its condition may deteriorate. It was denied that building was unfit and unsafe for human habitation. It was further alleged that a portion of the building on he ground floor was in possession of one Thakar Dass as tenant and that the petitioner landlord had not taken any steps to seek his eviction and this would prove that the building was fit for habitation. It was denied that respondent had caused any nuisance as alleged.
3. After hearing both sides, learned Rent Controller, ordered ejectment of the tenant from the demised premises, on the ground that the building in question had become unfit and unsafe for human habitation. However, the appeal filed by the tenant was accepted by the appellate authority. Order of eviction passed by the Rent Controller was set aside and the ejectment petition filed by the landlord was dismissed, holding that the landlord had failed to prove that the building in question had become unsafe and unfit for human habitation. Aggrieved against the judgment of the appellate authority, petitioner landlord filed the present revision petition in this court. During the pendency of the petition, landlord filed applications bearing C.M. Nos. 20456-CII/2002 and 20457-CII of 2002, seeking to place on record certain additional documents and also subsequent events, which had taken place during the pendency of the petition, in this court. Notice of these applications was given to the counsel for the respondent tenant, who filed reply to the same alongwith report of the Local Commissioner.
4. I have heard the learned counsel for the parties, in the revision petition and also in the aforesaid applications and have gone through the record carefully.
5. Learned counsel for the petitioner landlord submitted before me that from the report of Local Commissioner, Exh.A-1 and other evidence produced on record, it was proved on record that the building was in a dilapradated condition and had become unfit and unsafe for human habitation and that the respondent tenant was liable to be ejected from the demised premises on that ground. It was further submitted that in view of the subsequent events, including the subsequent reports of the Local Commissioners, this fact was further proved that the building in question had become unfit and unsafe for human habitation.
6. However, I find no force in these submissions of the learned counsel for the petitioner landlord. As referred to above, case of the landlord, while filing the petition, was that few karis of last khan of the shop i.e. ground floor had been damaged and likewise two karis of the last room of the first floor were also damaged and that the building was in a dilapidated condition, as the karis of the roof of one interior khan of the shop having its roof as floor of the building was under tenancy and last room of first floor was likely to fell down and that the building had become unfit and unsafe for human habitation. These allegations were denied by the tenant in the written statement. Both sides produced oral evidence, by appearing in the witness box in support of their respective contentions. However, the report of the Local Commissioner (who was appointed by the Court) was produced by the counsel for the petitioner landlord as Exh.A1. A perusal of the said report (Ex.A1, available on the trial court file would show that the Local Commissioner had visited the spot (under the orders of the Court) on 26.5.1985. The Local Commissioner was none else but the Executive Engineer, PWD B&R, Sirsa. In the said report, it was reported by the Local Commissioner that he had inspected the spot on 26.5.1985, after informing the parties about the date and time of inspection and that both the parties were present at the time of inspection. He reported that the entire structure was made of old small size bricks and was more than about 50 years old and the structure walls were of about 18″ thickness. With regard to the ground floor, he reported that the first three compartments towards the main bazar were better maintained and wooden battens therein were quite safe. The fourth compartment contained 12 wooden battens in roofing system and all of them were safe. It was further reported that the fifth and last compartment consisted of 12 wooden battens in roofing system and that batten No.7 from eastern side had been strengthened by an iron angle about 2 long and that this batten had been strengthened to avoid collapse of structure. It was also found that the wooden batten No. 8 from eastern side had developed cracks and could give way anytime, if not immediately repaired. With regard to the first floor, it was found by the Local Commissioner that there was no structure on the first floor over the first compartment and one room had been constructed over the second compartment and all wooden battens in the roofing system were safe. It was further reported that small portion had been constructed over the third compartment and was being used for washing clothes etc. and its roofing system consisted of 5 wooden battens and all of them were in good condition. It was further reported that a small portion of about 9′ x 5′ and been constructed over the 5th compartment and was being used as a kitchen. It was reported that its roofing system consisted of 5 wooden battens and that batten No. 2 from the eastern side had been strengthened with the help of a steel patti and this batten had been strengthened to avoid its failure at any time. It was further reported that on the 5th compartment, there was a room and its roofing system consisted of 12 wooden battens and that batten No. 1 from eastern side was likely to collapse any time, if not repaired immediately. It was further reported that battens No. 4, 5 and 6 from the eastern side had been strengthened with the help of steel patti and that these battens had been strengthened in order to avoid their failure at anytime.
7. On the basis of the aforesaid report of the Local Commissioner, it was found by the appellate authority that it could not be said that the building in question had become unfit or unsafe for human habitation, nor could it be a ground to order ejectment of the respondent tenant from the demised premises. In my opinion, learned appellate authority was perfectly justified in coming to the aforesaid conclusion, especially when the battens had already been got strengthened by steel patti and one or two battens, which had not been strengthened, could be strengthened by use of patti by repairing the same. However, it could not be said that the building in question had become unfit on unsafe for human habitation. Minor repairs by strengthening the battens or replacing the damaged battens, in my opinion, could not be a ground for holding that the building in question had become unfit and unsafe for human habitation or that the tenant was liable to be ejected from there on that ground.
8. So far as the subsequent events are concerned, learned counsel for the petitioner referred to the report of the Local Commissioner dated 9.10.2002, in a suit for permanent injunction filed by the landlady against the tenant. As per the said report of the Local Commissioner, Local Commissioner had inspected only the ground floor i.e. the shop which was now admitted in possession of the landlord. In the said report, it was reported by the Local Commissioner that the property in dispute was ground floor of the building consisting of 5 rooms and that in the second room marks of previously existing wooden batten over south were available and these battens were lying on the floor. It was further reported that in room No. 4, wall towards south was broken and bricks had come out at a number of places. It was further reported in room No. 5 one wooden batten towards centre of the roof was found cracked and towards south of the wall and towards west of the roof dents were visible. In my opinion, this report of the Local Commissioner is neither here nor there and would not prove that the building in question had become unfit and unsafe for human habitation. Furthermore, another report of the Local Commissioner dated 6.11.2002 is available on the record, inasmuch as it was filed by the respondent alongwith reply to the application regarding subsequent event. Said Local Commissioner was appointed in the petitioner under Section 10 of the Act, filed by the tenant against the landlady. As per the said report of the Local Commissioner, he had visited the spot on 5.11.2002 in the presence of the parties. It was found that it was a 5 khani shop and that the condition of the first khan was almost normal and the kari of the roof of the second portion towards south near the wall was broken from two sides and was lying on the floor. It was further reported that the third portion of the shop was in almost normal condition and that in the 4th khan towards the south western corner starting from floor upto three four feet in height and 6-7 feet in length in the wall, bricks were taken out and were lying on the floor. It was further reported that in the 5th portion towards the corner some bricks were taken out and were lying on the floor. It was further reported that in the middle wall dividing 4th and 5th khan near the roof, bricks were taken out and were lying on the floor and similarly in the 5th portion, some bricks were taken out. It was reported that the shop was built of old small sized bricks and that the building was pretty old one. It was further submitted that in the upper portion of the shop, there were two rooms built opposite each other and that the condition of these rooms was almost normal.
9. From a perusal of the above, in my opinion, it would be clear that from these reports of the Local Commissioner, it could not be said that the building in question had become unfit and unsafe for human habitation which may entitle the landlord to seek ejectment of the tenant from the first floor of the building. As referred to above, it is admitted case of the parties that ground floor of the building was now with the landlord (previously first three khans were with another tenant). If some bricks have been taken out from some walls on the ground floor, it could not be made a ground for ordering ejectment of the tenant from the first floor, especially when the landlord cannot take advantage of his own wrong.
10. It was then been submitted before me by the learned counsel for the petitioner landlord that the tenant got the first floor of the building in question repaired during the pendency of the petition by filing a petition under Section 12 of the Act and that an interim order was passed by the Rent Controller, allowing the tenant to repair the same. It was submitted that vide order dated 28.2.2002, passed by this Court, in C.R. No. 5814/2001. counsel for the respondent tenant had submitted that if he was allowed to replace two battens each in the roof of the kitchen and verandah, he would not seek any concession on the basis of being allowed to replace the same so far as disposal of the present revision petition is concerned. I have gone through the order dated 28.2.2002, which has been placed on record as Annexure A3 with the application seeking to place on record subsequent events. As per the said order it was found that no prejudice would be caused to the landlord if the aforesaid four battens were allowed to be replaced. Accordingly, petition was disposed with liberty to the tenant to replace the four battens only and that he would not carry out any other repairs. In my opinion, replacing of two battens in the kitchen and two battens in the verandah would be neither here nor there, so far as the present petition is concerned. This is especially so, when the condition of building has been improved by replacement of battens.
11. In Shadi Singh v. Rakha, 1992 (2) Haryana Rent Reporter 7, it was held by the Hon’ble Supreme Court, as under:-
“6. There is a distinction between effecting repairs and in its guise to make structural alteration or to restructure the building. The tenant can not effect structural alteration or reconstruct the building. It is the right of the landlord alone to exclusive have it done, unless of course, the land lord having had the tenant evicted from the building for that purpose and demolished the building and failed to reconstruct and re-deliver possession thereof to the tenant. In a given case if the tenant acts unilaterally and effects structural alteration or reconstruct the building, it itself may be a ground for eviction under the appropriate provision of the statute. No such allegation was made, nor an amendment to the pleading sought by the respondent in this behalf. A feeble attempt was made by Shri Harbans Lal to raise the contention. In the absence of the pleading and the contention raised in the courts below, we decline to permit the counsel to argue that point, since there is no factual foundation in that behalf. The test in each case is whether it is absolutely necessary to have the tenant evicted to carry out repairs or structural alteration for making the demised building safe and fit for human habitation. Further it is to be asked whether the repairs are so fundamental in character and extensive which cannot be carried out without evicting the tenant from the building or which the tenant remained in occupation. If the repairs could be carried out without disturbing the possession of the tenant the need for eviction is mere a wish of the landlord or a ruse to have the tenant evicted. Take for instance, a building, in which commercial activity having established good will, was taken possession of under Section 13(3)(a)(iii) and got no repairs effected but demolished and no reconstruction was made for a long time. Prolonged stoppage of business will have a deleterious effect on the good will and cripple the business of the tenant. Each case on its own facts present its true colours. Its effect is to be visualised and considered in its own perspective.
7. It is settled law that subsequent events can be taken note of and the relief would be moulded suitably, vide Hasmat Rai and Anr. v. Raghunath Prasad, 1981 (3) SCR 105, and Variety Emporium v. V.P.M. Mohd. Ibrahim Naina, 1985 (2) SCR 02 at 110. Therefore, the appellate authority (District Court) is well justified in its conclusion that the cause of action for eviction of the appellant no longer subsisted after the tenant effected repairs and replaced that part of the fallen roof and the order of eviction, thereafter became unnecessary and wrong”.
12. In view of the law laid down by the Hon’ble Supreme Court in the aforesaid authority, in my opinion, no fault could be found with the order of the learned appellate authority, holding that the landlord had failed to prove that the building had become unfit and unsafe for human habitation. The authorities Balbir Singh v. Hari Ram, 1983 Haryana Rent Reporter 436 and Krishan Lal v. Madan Gopal, 1990 Haryana Rent Reporter 502, in my opinion, would be of no help to the petitioner landlord on the facts and circumstances of the present case, so far as subsequent events are concerned. As referred to above, even if those subsequent events are taken into consideration, still, in my opinion, it could not be said that the building in question had become unfit and unsafe for human habitation.
13. In view of the above, I uphold the findings of the learned appellate authority.
14. No other point has been urged before me in this revision petition.
15. For the reasons recorded above, finding no merit in this revision petition, the same is hereby dismissed.