JUDGMENT
Satish Kumar Mittal, J.
1. The legal representatives of Shri Kunji Lal, who was the tenant in the shop in question, situated at Satta Bazar, Rewari, has filed the instant revision petition against the order dated 28.2.1995 passed by Additional District Judge, exercising the powers of Appellate Authority under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as ‘the Act’) vide which the petitioners were ordered to be ejected from the demised premises on he ground that the same has become unfit and unsafe for human habitation.
2. The brief facts of the case are that respondent Vidya Parkash (hereinafter referred to as ‘the landlord’} filed an ejectment application against Kunji Lal (hereinafter referred to as ‘the tenant’) under Section 13 of the Act for eviction of the tenant from the shop in question, which was under his occupancy at the monthly rent of Rs. 12.50 plus house tax. The said ejectment application was filed on two grounds, namely non-payment of rent and the shop in question having become unfit and unsafe for human habitation. The tenant hotly contested the said ejectment application. On the first date of hearing, the demanded rent was tendered along with interest and costs. The allegations regarding the demised shop having become unfit and unsafe for human habitation were denied. It was pleaded that the ejectment application was filed by the landlord with intention to coerce the tenant to increase the rent.
3. There was only one issue before the lower courts which was to be decided i.e. regarding the demised premises having become unfit and unsafe for human habitation. After considering the evidence led by both the parties and hearing the arguments of their respective counsel, learned Rent Controller dismissed the ejectment application filed by the landlord while holding that the landlord has failed to prove that the demised premises have become unfit and unsafe for human habitation. Feeling aggrieved against the said order, the landlord filed an appeal before the learned Appellate Authority, which was allowed vide the impugned order. Consequently the order passed by the learned Rent Controller was set aside, the ejectment application filed by the landlord was allowed and the petitioners were ordered to be ejected from the shop in question, while holding that the same has become unfit and unsafe for human habitation.
4. Learned counsel for the petitioners, while assailing the order passed by the Appellate Authority, has submitted that the finding of the Appellate Authority to the effect that the demised premises has become unfit and unsafe for human habitation is not correct finding as the same is contrary to the evidence available on the record. Primarily, learned counsel for the petitioners has submitted that the Appellate Authority has completely overlooked the admission/statement made by the expert witness i.e. Ram Bilas, retired Chief Engineer (AW.1) in his cross-examination. In this regard, learned counsel submitted that this witness has admitted that the age of the building is not the criteria for declaring the building unfit and unsafe. He also admitted that while examining the building, he did not get the building excavated. He further admitted that no through and through cracks in the wall were noticed by him. This expert witness has also admitted that he did not calculate the loads coming on the wall from the roof. It has also been admitted by him that he did not go to the top of the roof and he did not mention whether there was any depression in the roof or not. In view of the aforesaid alleged admission, learned counsel for the petitioners submitted that the Appellate Authority was not justified in depending upon the cracks and depression etc. shown by the said expert witness in his report. His admission completely negatives the report submitted by him. In support of his contention, leatned counsel for the petitioners relied upon decisions of this Court in Puran Chand and Anr. v. Roshan Lal, Advocate, 1977(2) Rent Law Reporter, 621, (The building suffered a few cracks does not mean that it has become unfit and unsafe for human habitation.), Pitamber Lal v. Pitamber Lal v. Ram Lal and Ors., 1984(2) Rent Law Reporter 491 (From the mere fact that the building suffers from cracks, it does not necessarily follow that it has become unfit and unsafe for human habitation.) and Trilok Chand v. Smt. Dropati Devi, 1989(2) Rent Law Reporter 596 (Solely the building being old and being built of small bricks is no ground to assume or infer that it has outlived its life and unsafe and unfit for human habitation.).
5. On the other hand, learned counsel for the respondent has submitted that there is no infirmity or illegality in the impugned order passed by the learned Appellate Authority. Each and every evidence available on the record has been duly considered and thereafter a finding of fact has been recorded to the effect that the shop in question has become unfit and unsafe for human habitation. Learned counsel for the respondent further submitted that Ex. A1, report of he expert, which has been duly proved by the statement of Ram Bilas, retired Chief Engineer (AW. 1), clearly establish that the demised premises has become unfit and unsafe for human habitation and learned Appellate Authority has relied upon this report of the expert as well as the other evidence available on the record, while recording the aforesaid finding. He further submitted that the authorities, cited by learned counsel for the petitioners, are not applicable to the facts and circumstances of the present case and each case has to be decided on the basis of the evidence available on the record. He further submitted that in the instant case the tenant has got repaired some portion of the demised shop during the pendency of the ejectment application without prior permission of the Court. This conduct of the tenant has also been taken into consideration by the learned Appellate Authority white coming to the aforesaid conclusion. In the last, learned counsel for the respondent submitted that the revision petition filed by the petitioners is devoid of merit and the same is liable to be dismissed.
6. I have heard learned counsel for the parties and have perused the record with their assistance. Admittedly, the premises in question is an old building. The landlord claimed that the premises is more than 100 years old and the tenant claimed the same to be 60 to 65 years old. The learned Appellate Authority, after appreciating the evidence led by the parties in this regard, has categorically held that the premises in question is more than 100 years old and it may be even 125 years old. It is well settled that mere age of the building is not sufficient to hold that the building has become unfit and unsafe for human habitation. The Appellate Authority was also aware of this principle as he observed that though the age of the building itself is not sufficient to hold the premises unfit and unsafe for human habitation, but age of building is definitely one of the considerations to appreciate other evidence available on the record for coming to the conclusion regarding the premises in question having become unfit and unsafe for human habitation. With the aforesaid angle learned Appellate Authority has considered the other evidence led by the landlord in this regard. Thereafter, while relying upon the statement of the expert witness Ram Bilas, retired Chief Engineer (AW,1) and the report submitted by him, coupled with the statement of the landlord as well as that of Ashok Kumar, Photographer (AW.3) and the photographs Ex.PW3/l to Ex.PW3/13 proved by him, the Appellate Authority has come to the conclusion that the shop in question has become unfit and unsafe for human habitation. I have perused the report of the expert, Ex.A1, the relevant extract of which is reproduced below:
“During inspection it was observed that:
1. Roofing of portions marked I and II is done with wooden battens spanned with wooden chapters carrying lime concrete fill above. The battens are in sagged and fully weathered state. Ends of battens have decayed. Some of the battens in portion II stand in cracked/broken state.
2. Wooden chaptees spanning the battens in portions I and II have decayed and fallen out at places. Lime concrete fill above the chaptees is in fully weathered state and has also fallen down along with the chaptees leaving hollow pockets in the roof.
3. A h ole of size 4″ x 4″ exists in roof of portion II at ‘Z’ indicating that the roof is in advanced weathered and disintegrating state.
4. Lime plastered terraces on portions I and II are cracked allowing rain water to seep through them to roofs and walls, weakening their strength and stability.
5. Lime plaster stands fully weathered and has fallen off at places.
6. A depression of size 2′ x 4′ exists in wall CD of portion III above lintel level at Y. This indicates that this portion of the wall had failed, has been rebuilt and plastered subsequently.
7. Wooden lintels over openings in walls CD. EF, and GH have sagged and are in decayed and cracked state. Lintel and shutters of front door are in weathered/decayed state and exist in cracked/broken condition.
8. The floors are damp and in disintegrating condition.
9. Plaster on the outside face of wall GH has swollen and mostly fallen off, leaying the structure exposed to vagaries of weather and rains. Swollen plaster is in felling state. Bricks are showing signs of falling off near the top corners G and H.
10. The front wall GH is losing plumb and has leaned towards outside.
Inference:
As a result of inspection of site and from facts recorded above, it is evident that this old structure, estimated to be over 100 years old, has outlived its life and is in advanced state of weathering and decay.
Conclusion:
I am of the view that the premises under report has become unfit and unsafe for human habitation.”
7. From the aforesaid report, it is clear that the premises in question was not fit and safe for human habitation. This report has been duly proved by Ram Bilas, retired Chief Engineer (AW.1). I find no force in the contention of learned counsel for the petitioners that the Appellate Authority did not consider the statement made by the said expert witness in his cross-examination, in this regard, learned Appellate Authority has observed as under:-
“The expert witness of the landlord, of course, had admitted that he had not excavated the foundations to see whether there was a failure of foundation and that there were no through and through cracks in the wall and his report did not take into account the load of the roof and the width of the wall and that no white ants were mentioned in the report and no sign of see page was noticed by him. AW1 Shri Ram Bilas, Retired Engineer had also not measured the Chaptees and the tilt. These facts would not, however, prove that the building was not more than 100 years old or that the batons were not sagged or in fully weathered state and ends of battens had not decayed and some of the battens were not cracked/broken. But the report of the expert would still indicate that wooden chaptees spanning the battens in portions I and II had decayed and fallen out at places and lime concrete filled above the chaptees was in fully weathered state and had also fallen down alongwith the chaptees leaving hollow pockets in the roof and there was a hole of size 4″ x 4″ existing in roof of portion II at ‘Z’ indicating that the roof was in advanced weathered and disintegrating state and there was a depression of size 2′ x 4′ existing in the wall CD of portion III above lintel level at ‘Y’ and this indicated that this portion of the wall had failed and had been rebuilt and plastered subsequently and that the front wall GH was losing plumb and had leaned towards outside. Even the expert witness of the tenant has not excavated the foundations and had not given the age of the building.”
8. In view of the aforesaid observations made by the learned Appellate Authority, I find no force in the contention of learned counsel for the petitioners. In my view, the Appellate Authority has considered the entire matter in detail and I find no infirmity or illegality in the aforesaid finding. It has also come on record that during the pendency of the ejectment application the tenant had carried the repairs of the demised premises without prior permission from the Court. In this regard, a local commissioner was appointed on the request of the landlord to see whether the tenant had made some repairs in the demised premises. The said local commissioner inspected the demised premises in presence of counsel for both the parties on 14.03.1987 and submitted his report, in which he has clearly stated that the tenant had made certain repairs in the demised premises and thereafter had done the white-wash to conceal those repairs. The Appellate Authority, while taking into consideration the aforesaid conduct of the tenant, further concluded that this conduct of the tenant further establishes that the building in question was not fit and safe and the repairs were made to create evidence that the building was not in a state of falling down. It has been held by a Division Bench of this Court in Balbir Singh v. Hari Singh, 1982(2) Rent Law Reporter 463, that on becoming the building unfit and unsafe for human habitation, a right accrues to the landlord to eject the tenant and the tenant cannot carry out repairs himself to defeat right of the landlord. In my view, there is no illegality or infirmity in the impugned order passed by the Appellate Authority; and from the evidence available on the record no different view can be taken, The authorities cited by learned counsel for the petitioners are not applicable to the facts and circumstances of the present case.
9. In view of the aforesaid discussion, I find no merit in the present revision petition filed by the petitioner and the same is hereby dismissed with no order as to costs.