JUDGMENT
Rajive Bhalla, J.
1. Challenge in this revision petition is to the orders dated 2.6.1999 and 27.11.2001 passed by the learned Rent Controller, as also the Appellate Authority, dismissing the rent petition, as also the appeal.
2. The petitioner, filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, praying for ejectment of the respondent from a shop measuring 16’x14′-3″, on the grounds of non payment of rent, the tenanted premises have become unfit and unsafe for human habitation and that the respondent had replaced the main gate of the shop with a shutter, without the consent of the landlord, thus, impairing the value and utility of the tenanted premises.
3. The petitioner landlord asserted that the respondent has failed to pay rent @ Rs. 40/- p.m. with municipal taxes @ Rs. 6/- p.m. from 1.4.1986. As regards the plea that the building has become unfit and unsafe for human habitation, it is averred that as the building is about 90 years old, the walls have developed cracks, the wooden battens have been consumed by termites, and as the building is in a dilapidated condition, it is therefore, unfit and unsafe for human habitation.
4. The tenant contested the correctness of the aforementioned assertions but on the first date of hearing, tendered arrears of rent amounting to Rs. 4,040/- @ Rs. 40/- p.m. with effect from 1.4.1986 to 31.8.1994, interest of Rs. 1,060/- and costs as assessed by the Rent Controller of Rs. 200/-. On the basis of the pleadings, the learned Rent Controller framed the following issues:
1. Whether the respondents are in arrears of rent? OPA
2. Whether the premises in dispute has become unfit and unsafe for human habitation and require reconstruction? OPA
3. Whether the respondents without the consent of the petitioner had removed the main gate of the demised premises and affixed a shutter and in this way impaired the value and utility of the premises in dispute? OPA
4. Relief.
5. Under issue No. 1, the learned Rent Controller held that the tenant had tendered the rent due to the landlord and, therefore, decided issue No. 1 against the petitioner. Under issue No. 2, it was held that the landlord had failed to establish that the premises in dispute have become unfit and unsafe for human habitation. Under issue No. 3, the learned Rent Controller held that the original landlady Smt. Parja Devi had consented to the additions and alterations and, therefore, this issue was also decided against the petitioner.
6. Aggrieved by the order passed by the Rent Controller, the petitioner filed an appeal. The Appellate Authority, after a considered appraisal of the pleadings and evidence, as also the findings recorded by the Rent Controller upheld the findings and dismissed the appeal.
7. Counsel for the petitioner has confined his arguments to the pleas of non payment of rent and that the premises have become unfit and unsafe for human habitation.
Counsel for the petitioner asserts that, though, the tenant tendered arrears of rent of Rs. 4,040/- @ Rs. 40/- p.m., he was also required to tender municipal taxes @ Rs. 6/-p.m. The tenant admittedly did not tender municipal taxes @ Rs. 6/ p.m. and in fact, contested his obligation to do so. The learned Rent Controller and the Appellate Authority rightly held that the respondent was required to pay the tax from February 1994 i.e. from the date of service of the demand notice, but thereafter erred while adjusting the excess rent tendered, against the amount of municipal taxes due from the respondent. The learned Courts below had no jurisdiction to adjust the excess rent towards arrears of municipal taxes as the tenant had asserted, in his reply to the ejectment petition, that he was not liable to pay any amount in lieu of the municipal taxes.
8. As regards the findings that the premises in dispute are unfit and unsafe for human habitation, it is asserted that the report Ex.A-5 submitted by the building expert, establishes the age of the building and when read with the photographs, depicts the dilapidated condition of the walls, roofs the wooden rafters etc. It is submitted that this report has been wrongly rejected and the report submitted by the respondent was incorrectly relied upon. The Courts below, have failed to assign any cogent reason for rejecting this report. The building is 90 years old, the wooden rafters have been eaten away by white ants and the walls are unable to withstand the weight of the roof on account of seepage of water. It is, therefore, prayed that the present petition be accepted and the orders passed by the Courts below be set aside.
9. I have heard learned Counsel for the petitioner and perused the impugned orders.
As noticed herein above, arguments have been addressed on the question of non payment of rent i.e. Municipal taxes and that the building has become unfit and unsafe for human habitation.
10. The rate of rent is admittedly Rs.40/- p.m. The petition for ejectment was filed on 20.5.1994. The tenant was required to tender rent from 1.4.1986 to 20.5.1994 (i.e. May, 1994 inclusive) i.e. a sum of Rs. 3,920/-. The tenant admittedly tendered Rs. 4,040/- , an excess of Rs. 120/-. The learned Rent Controller and the Appellate Authority held that the tenant was required to tender arrears of municipal taxes from the date of the service of a notice of demand, by the petitioner but though the tenant did not tender arrears towards taxes, the excess rent tendered could be adjusted towards the taxes. It is true that a tenant, is required, as per the provisions of Section 9 of the East Punjab Urban Rent Restriction Act, 1949 to pay any fresh rate, cess or tax, that may be levied in respect of the building and/or any increase in such cess, tax or levy. The rate, cess or tax, however, is to be paid, as held in Smt. Kirpal Kaur v. Bhagwant Rao (1969)71 P.L.R. 238, and Bansi Lal v. Sunt Ram Chopra (1965)67 P.L.R. 192, from the date of service of a notice by the landlord, calling upon the tenant to pay the taxes imposed or increased. The notice of demand admittedly bears the date 25.11.1994 (Ex.A-3). The tenant, therefore, was required to tender municipal taxes @ Rs. 6/- p.m. from January to May (inclusive) i.e. a sum of Rs. 30/-.
11. Admittedly, the tenant did not tender the aforementioned amount. The Rent Controller, as also the Appellate Authority, however, held that as the tenant had tendered Rs. 120/- in excess, of the amount due as rent, the excess amount was to be adjusted towards the arrears, payable on account of house tax. I find no error of jurisdiction of law, in the course adopted by the learned Rent Controller, as also the Appellate Authority. It is settled law that where, a tenant tenders an excess amount and it subsequently transpires that some other amount is due from the tenant, the excess amount may and can be validly adjusted towards the shortfall. The contention of counsel for the petitioner that as the respondent denied his liability to pay any amount towards the municipal taxes, the Courts below had no jurisdiction to adjust the excess amount paid, cannot be accepted. An excess amount of rent tendered by a tenant can be adjusted against any amount that may be subsequently found due from a tenant.
As regards the findings that the premises in dispute have been rendered unfit and unsafe for human habitation, both the Rent Controller as also the Appellate Authority, after due consideration of the reports submitted by building experts produced by the petitioner, as also by the tenant, arrived at a considered decision that the tenanted premises are not unfit and unsafe for human habitation. Counsel for the petitioner has failed to advance any argument that would disclose an error of jurisdiction or of law, as would necessitate interference in these concurrent findings of fact.
12. The report Ex.A-5 submitted by the building expert produced by the petitioner does not make a reference to any cracks. It merely relies upon photographs appended thereto. As held by the Courts below, it appears that the portion in the landlord’s possession has become dilapidated by consistent neglect on the part of the landlord. The Rent Controller and the appellate authority have concurrently held that the portion in the tenant’s possession is safe and well maintained. The mere fact that the building is 90 years old, would not by itself be sufficient to hold that the building has become unsafe and unfit for human habitation. The fact that a building is old not necessarily render a building unsafe and unfit for human habitation. Each case has to be decided on its own peculiar facts and on the nature of the building. The rejection of the report submitted by the petitioner’s building expert and the acceptance of the report submitted by the respondent’s building expert, is an exercise of judicial discretion that is neither arbitrary nor illegal and, therefore, does not require interference. These findings, concurrently returned by the Courts below, do not call for interference, in the exercise of revisional jurisdiction.
13. In view of what has been stated herein above, as the impugned orders do not suffer from any error of jurisdiction or of law, as would require interference, the revision petition is dismissed.