JUDGMENT
Ajay Kumar Mittal, J.
1. In this revision petition under Section 15(5) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short “the Act”), the tenant-petitioner has challenged the order of the learned Rent Controller dated 1.1.2004 whereby he has been ordered to be evicted from the demised shop on the ground that the same has become unfit and unsafe for human habitation and order dated 5.5.2004 passed by the learned Appellate Authority whereby the order of the learned Rent Controller has been affirmed.
2. The landlord filed ejectment petition against the tenant on the grounds that the tenant is in arrears of rent from 25.4.1991 to 24.4.1994 for 36 months amounting to Rs. 1,125/- along with house tax of Rs. 140.6.0. Another ground for ejectment is the change of user of the demised shop. It has been stated that the shop was let out by the landlord for running electric goods shop but the same has been changed and converted into saraffa shop under the name and style of M/s Surjan Singh and Sons and the same has been done without getting the prior written or oral permission of the landlord. The eviction has been sought also on the ground that the building is more than 100 years old and has outlived its age as the demised shop has developed cracks in the walls and the walls have left their joints. The building has become unfit and unsafe for human habitation. It has been averred that the tenant had tried to make unauthorised additions and alterations in the shop without seeking the permission of the landlord or the Court and in this way he had impaired the value and utility of the demised shop.
3. Upon notice, the tenant controverted the averments of learned Counsel for the landlord and on the basis of the pleadings of the parties, following issues were struck:-
1. Whether the respondent is liable to be evicted from the shop in dispute on the ground alleged in para No. 3 of the petition? OPP
2. Relief.
4. The learned Rent Controller held that the tenant is not in arrears of rent as he had already paid the rent for the disputed period and, therefore, his eviction cannot be ordered on that ground. The ground regarding change of user was also negatived by the learned Rent Controller and it was held that the tenant is carrying on the electric business in the demised shop ever since the creation of tenancy in his favour. However, on the ground of building having become unfit and unsafe for human habitation, the trial Court after considering the evidence produced on record came to the conclusion that the building has become unfit and unsafe for human habitation and the tenant is liable to be evicted from the demised shop on the basis of the building having become unfit and un-\ safe for human habitation.
5. Aggrieved by the order of eviction passed by the learned Rent Controller, the tenant preferred an appeal which, as stated earlier, was dismissed by the learned Appellate Authority, Yamuna Nagar at Jagadhri vide judgment dated 5.5.2004 by upholding the findings recorded by the learned Rent Controller.
6. Learned Counsel for the petitioner has submitted that the landlord had not appeared in the witness box and placing reliance upon Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihqr Behera and Anr. has submitted that the presumption should have been raised against the landlord and the learned Rent Controller and the Appellate Authority could not have come to the conclusion that the building has become unfit and unsafe for human habitation. He further submitted that the mere fact that the tenant had applied to the Rent Controller for repairs of the building under Section 12 of the Act, it would not mean that the same had become unfit and unsafe for human habitation and, therefore, the findings recorded by both the Courts below could not be legally sustained. In support of this contention, he has placed reliance on judgment of Dharam Pal v. Janki Nath Sharma. (1985-1)87 P.L.R. 450.
7. Learned Counsel for the respondent, on the other hand, controverted the submissions of the learned Counsel for the petitioner and submitted that the learned Rent Controller as well as the learned Appellate Authority have concurrently recorded a finding of fact on the basis of the evidence produced that building has become unfit and unsafe for human habitation and, therefore, in exercise of revisional jurisdiction under Section 15(5) of the Act, the Court should not interfere in the findings of fact recorded by the Courts below.
8. I have heard the learned Counsel for the parties and with their assistance have perused the record.
9. The learned Rent Controller on the basis of statement of Hem Chand AW-6 who had proved his report Ex.AW-6/8, has recorded as under:
That the demised shop is in four apartments shown with letters A, B, C and D. The demised shop is old which was constructed about 100 years back. The report shows that in the apartment A all the walls and ceiling were covered with new plywood and nothing could be visible. The chhaja in front is fallen half and half exist. Sides of underneath of roof were visible which revealed that roof tores have left ends and a big crack exists in eastern wall. The report shows that in apartment C, roof existed on brick tiles wooden karries laid north-south and total eaten up. The walls of the demised shop are of small lahori bricks in mud mortar and mud plastered. All the kuries have been eaten up. The intermediate wall in between C and D has crack on western wall and have left the wall. The report further shows that there is earthern flooring in C and D apartment and apartments. A and B is having brick flooring with cement plaster. The floor in apartment A is lower that B. The apartments were having dampness and stinking smell was there. The roof of portion A is sunk and was covered with black polythene sheet. Parapet of apartments A and B are damaged and cracked. Roof of apartment D has sunk down. Parapet on eastern side is damaged. The expert has concluded in the report that building is nearly 100 years old having cracks in walls, all wooden members of the roof are eaten up, supported on wooden steel members. Roof have sunk. The shop is unfit and unsafe for human habitation.
10. The learned Rent Controller had noticed that the demised shop was also inspected by RW-2 who was produced at the instance of tenant Surjan Singh who is a qualified Engineer retired from the service of Improvement Trust who on the basis of his affidavit Ex.RW-2/A has noticed as under:
That the demised shop is divided in five segments. Though he in his report has stated that the demised shop is strong enough to face a couple of decades but while giving the description of segment 5 he has mentioned in the report that this segment i.e. segment No. 5 seems to be quite old as the battens supported on a round wooden beam have started decaying. The western side 3 battens are also infested with termite.
The walls are chhoti bricks with apparently no plaster. The plaster visible is also mud plaster. The bricks with apparently no plaster. The plaster visible is also mud plaster. The report further shows that the wooden chokhat provided to join segment Nos. 3, 4 and 5 are quite old which can be replaced if desired so, as the demised shop is about 50-60 years old. Taking this view of the matter, it can be said that demised shop is in a damaged condition which has out-lived its life with the passage of time.
10. Shri Anil Aggarwal, Advocate who was appointed as Local Commissioner to report about the general condition and also of the wall XY has mentioned in the report that the eastern wall of second ‘khan’ marked XY had partly fallen and was made of old small bricks and wooden raftar of roof were placed on girders with two supports of ballas. He has further noticed that the wall of adjoining shop just adjacent to the wall XY was newly constructed which can easily be seen from inside the shop.
11. The learned Rent Controller on considering the totality of the facts and circumstances came to the conclusion that the shop has become unfit and unsafe for human habitation which has outlived its age as it is more than 100 years old. The said finding of the learned Rent Controller was affirmed in appeal by the learned Appellate Authority.
12. Learned Counsel for the petitioner could not pinpoint any infirmity or illegality or misreading of evidence on the basis of which it could be said that the finding of fact recorded by the Courts below that the building has become unfit and unsafe for human habitation could be said to be perverse or that there was any. error apparent on the face of it. The judgments relied upon by the learned Counsel for the petitioner have no relevancy to the facts of the present case and as such are not applicable.
Finding no merit in this petition, the same is accordingly dismissed in limine.