JUDGMENT
V.K. Bali, J.
1. This revision has been filed by the landlord, who, even though in the matter of seeking eviction of the respondent-tenant, which is cooperative store, succeeded before the Rent Controller, as order dated 25.4.1988 was passed for eviction of the respondent, lost his cause before the appellate authority as the order of eviction passed by learned Rent Controller, in an appeal preferred by the respondent-tenant was set aside vide orders dated 5.8.1999. Hence the present revision.
2. The bare minimum facts, that need to be mentioned reveal that Piara Lal, the landlord-petitioner herein, filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 seeking eviction of Liquidator Cooperative Store from the shop situated in the Shastri Market, Kapurthala on two grounds, namely that the demised premises remained unoccupied or not used by the respondent without any sufficient cause for a period of 2 to 4 years and that the respondent had made additions and alterations without the consent of the petitioner. On the pleadings of the parties, learned Rent Controller framed the following issues;
“1. Whether the tender of the rent made by the respondent is short invalid and besides is not made by the proper person. If so, its effect? OPA
2. Whether the demised premises has become unfit and unsafe for the human inhabitation. If so, its effect? OPA
3. Whether the shop in question is not being used by the respondent without any sufficient cause for the last 2/4 years, if so, its effect? OPA .
4. Whether the respondent has made additions and alterations in the premises in dispute without the consent of the petitioner. If so its effect? OPA.
5. Relief.”
3. The resultant trial, as mentioned above, culminated into order of eviction passed by Rent Controller dated 25.4.1988 which in an appeal preferred by the respondent-tenant as mentioned above has since been set aside.
4. With a view to substantiate his case, the petitioner-landlord besides examining himself as AW5, examined Dharam Pal Nanda AW1; Rajinder Kumar AW2; Raj Kumar, AW3; and Roshan Lal AW4, While evaluating the evidence led by the petitioner, learned appellate authority in so far as statements made by Rajinder Kumar and Raj Kumar AW2 and AW3 are concerned observed that both of them are shopkeepers and generally a shopkeeper would depose in favour of other shopkeeper. While dealing with the evidence of Roshan Lal, Advocate AW4 who was appointed as Local Commissioner, Learned Appellate Authority observed that he visited the premises and found the shop locked. But the evidence of this witness could not be relied upon as he had not given any notice of his visiting the spot to the respondent. The pertinent observation made on that count by learned Appellate Authority is as follows;
“When Local Commissioner goes to the spot without giving notice to the other party so his evidence cannot be relied upon.”
5. While discussing the evidence of the petitioner, who examined himself as AW5, as mentioned above, Learned Appellate Authority observed that no reliance could be placed upon the statement made by the appellant. However, while evaluating the evidence examined on behalf of the respondent, learned Appellate Authority insofar as the statement made by Harbans Singh, RW2 is concerned observed that he was having his shop in front of the shop in dispute. He could see the shop continuously daily and he stated that the shop never remained closed and was being used as a store. While dealing with the statement of Gulshan Kumar RW3, the Appellate Authority observed that he stated that the premises in dispute was being used as a store. Learned Appellate Authority also observed that it was admitted and proved on the record of the case that a door had been opened in the demised premises which is a shop from adjoining shop, which belongs to somebody else and that fact was taken as if the shop in dispute was being used as a store.
6. Insofar as the second ground for eviction pertaining to material alternations is concerned, learned Appellate Authority observed that no specific instance of alterations had been pleaded in the petition at this stage and, therefore, the ground seeking eviction on the material alterations as a ground for eviction would stand unsubstantiated.
7. I have heard learned counsel representing the parties and with their assistance examined the records of the case.
8. Before I may proceed further, it requires to be mentioned that this Court, in the revisional jurisdiction conferred upon it under Section 15 of the East Punjab Rent Restriction Act, 1949 can examine the legality as also proprietary of the order passed by the concerned authority. The order passed by learned Appellate Authority appears to be wholly improper. It is rather strange to note that learned Appellate Authority, when it came to discuss oral evidence with regard to shopkeepers, discarded the statements of the shopkeepers examined on behalf of the petitioner on the ground that they were shopkeepers and normally they depose in favour of a co-shopkeeper, whereas while dealing with the evidence led by the respondent, an evidence of a shopkeeper who had his shop in front of the shop in dispute was believed despite the fact that respondent too was a shopkeeper, even though a cooperative store. It, thus, proves that learned Appellate Authority applied mutually exclusively and contradictory standards in appreciating the evidence of the parties. Learned Appellate Authority also did not support its view either from provisions of Code of Civil Procedure or for that matter any judicial precedence to hold that if a Local Commissioner visits the spot without notice to the other party, his evidence would be of no use and consequence.
9. It is too well settled and reference in this connection may be made to the provisions contained in Order 26 Rules 9 and 10 of the Code of Civil Procedure, that the Court has ample power to appoint a Local Commissioner for the purpose of elucidating any matter in dispute. The Local Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him to the Court. There is no embargo in the rules aforesaid to appoint a Local Commissioner without first issuing notice to the other side. Ex-parte appointment of the Local Commissioner who may even submit his report without issuing notice to other party, is permissible under the law. All that is required in such matters is that the report of Local Commissioner would not become admissible or relied upon unless the Local Commissioner is examined in Court giving adequate opportunity to the other party to cross-examine him. In the present case, it is conceded position that Local Commissioner was examined as AW4 and was cross-examined as well. If the report of the Local Commissioner who may visit the spot without notice to the other party, is discarded on that ground alone the same would defeat the very purpose of appointing a Local Commissioner in the cases as the one in hand, inasmuch as the other party, after coming to know of the visit of Local Commissioner would only open the lock of the shop thus, defeating the cause of its adversary. Once again this Court is unable to understand as to how the statement of the petitioner could be totally ignored only for the reason that he was a person who was seeking eviction of the tenant.
“Further, learned Appellate Authority instead of discussing the findings recorded by the Rent Controller on the basis of oral evidence, and by the process of reasoning differing with the said findings, rather chose a novel method of discarding the entire evidence led by the petitioner on pure conjectures and surmises and by adopting contradictory standards of evaluating the same. That apart, even if it is assumed for the sake of arguments that landlord had not led substantial evidence insofar as second ground for eviction pertaining to material alteration is concerned yet the civil cases as in contrast to the criminal cases are decided on preponderance of evidence and in that connection evidence of the parties as such has to be evaluated. On the dint of the evidence led by the parties and, in particular, that once the respondent had admitted the opening of a door from the adjoining shop, in considered view of this Court second ground seeking eviction was proved to the hilt. An opening of the door from the adjoining shop as mentioned above has since been admitted. That the said adjoining shop belongs to some body else, is also an admitted position. The opening of the door from an adjoining shop could only be by breaking the common wall and that would certainly result in diminishing the value of the shop beyond measures. The shop as such would lose its identity being a single shop. This kind of alteration would obviously materially impair the value and utility of the shop, thus, entailing an order of eviction on the second ground pleaded in the petition for eviction. Looked from any angle, thus, it appears the Appellate Authority wrongly reversed the well reasoned order passed by the Rent Controller ordering eviction of the respondent from the demised premises.
11. For the reasons stated above, the order passed by Appellate Authority is set aside and the one passed by Rent Controller is restored. The revision is allowed accordingly. The parties are however, left to bear their own costs.,