Amin Chand vs Mohan Lal

J.V. Gupta, J.—This is tenant''s petition against whom the ejectment application was dimissed by the Rent Controller, but eviction order was passed in appeal.

Mohan Lal landlord has sought the ejectment of his tenant Ami Chand from the shop in dispute situated in the main bazar, Ferozepur. The ejectment application was filed on 12th August, 1983, interalia, on the ground that the hind portion of the shop in question marked A B C D I shown in red colour in the plan has become unsafe and unfit for human habitation and the tenanted premises required reconstruction. According to the landlord he intended to errect chaubara in order to make provision for use and occupation of his sons for their residence and the said chaubara could not be constructed without re-errecting the ground floor.

The stand taken by the tenant was that the shop including its hind portion was fit for human habitation being in good condition. The landlord did not want to construct chaubara in order to habitate his sons for residential purposes and, therefore, he could not evict him from the non-residential building on that ground. The learned Rent Controller found that the shop in dispute was fit for human habitation. According to the learned Rent Controller that "he had no hestiation to hold that the hind khan of the disputed shop is a very old and poorly maintained structure mainly because of the failure of the landlord to do occasional repairs and equally indifferent attitude of the tenant, who did not seem to have made use of his statutory right despite a long litigation between the parties under the Act which, however, could not be declared as unfit and unsafe for human habitation." He also found that "nor do I find any force in the alarm raised by the experts of the landlord that there was imminent danger of collapse of the hind portion which was likely to endanger the structural health of the front portion of the shop in dispute." In view of this finding the ejectment application was dismissed. In appeal, the learned Appellate Authority reversed the said finding of the Rent Controller primarily on the ground that since the hind portion formed part of the entire building though the front portion was newly built, the tenant was liable to ejectment. According to the Appellate Authority that "the fact that the hind portion is made of Nanak Shahi bricks and the ceiling is made of sirkies, is not disputed. The manufacturing of Nank Shahi Bricks was stopped about hundred years ago as was unequivocally admitted by Swami Dayal (R. W. 3) which fact would show that the walls of the hind portion are very old". It was, therefore, held by the Appellate authority that the hind portion of the shop is in a dilapidated condition and has outlived its utility and, as such, the same has become unfit and unsafe for human habitation. Consequently, eviction order was passed.

Learned Counsel for the tenant-Petitioner submitted that the premises were let out to the tenant vide rent note exhibit R-5 dated 1st January, 1960, therein the premises were described to be newly constructed. Not only that the tenant filed an application for fixing of fair rent in August, 1964 in which the stand taken by the landlord was that the premises are newly constructed and, therefore, the agreed rent was the fair rent. The said plea of the landlord was accepted by the Rent Controller vide order dated 10th January, 1967, copy exhibit R-9. It was held therein that the shop in dispute was reconstructed in the year 1959-60 and it amounts to new construction for the purpose of the notification issued by the Government of Punjab u/s 3 of the Act. Thus argued the learned Counsel, in view of the said finding the landlord could not be allowed to say that since the hind portion was an old one, the entire building has become unsafe and unfit for human habitation. The said bind portion is being used by the tenant for storing his goods etc, whereas the front portion is being used as show room by him. as he is running a cloth shop therein. Moreover, on this very ground the landlord filed an earlier ejectment application in the year 1978 which was dimissed in the year 1982, vide order dated 11th January, copy exhibit AK with permission to file a fresh application on the same cause of action. Thus, according to the learned Counsel, from the facts and circumstance of the case and the conduct of the landlord he could not be allowed to eject his tenant on the plea that since the back portion of the demised premises is an old one, the entire building has become unsafe and unfit for human habitation. In this behalf reliance was placed on recent Supreme Court judgment reported in Piara Lal v. Kewal Krishan Chopra 1988 (2) R.L.R. 181. On the other hand, learned Counsel for the Respondent submitted that the earlier application was dismissed with permission to file a fresh application on the same cause of action as there were certain technical defects therein. That being so, that does not stand in the way of the landlord. Moreover, since the back portion is an old one and has become unsafe and unfit for human habitation, the tenant was liable to ejectment as the landlord wanted to reconstruct the entire building afresh. Of course, in the year 1960 when the premises in dispute were let out, only the front portion consisting of two khans was reconstructed and, therefore, the hind portion being a substantial portion of the demised premises, the tenant was liable to ejectment. In support of this contention he referred to 1986(1) R.C.R. 303, 1988(1) R.C.R. 120 and 1985(1) R.C.R. 175.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record.

Even according to the findings of the Appellate Authority, the building has become unsafe and unfit for human habitation only because the hind portion was made of Nanak Shahi bricks which stopped manufacturing about 100 years ago. It means that because the portion was an old one, according to the Appellate authority it will be deemed to have become unsafe and unfit for human habitation. It may be that the age of the building will be one of the factors to determine as to whether it has outlived its utility and on that ground it has become unsafe and unfit for human habitation, but in the present case no such finding has been given that the building has become unsafe and unfit for human habitation because of its old age. As a matter of fact, the landlord himself in the year 1960 vide rent note exhibit R-5 dated 1st January, 1960, rented out the premises describing the same as newly built. It is the case of the landlord himself that at that time he reconstructed the first portion consisting of two khans whereas the other two khans behind were not reconstructed. In these circumstances, the landlord could not be allowed to eject his tenant on the plea that the hind portion has become unsafe and unfit for human habitation because in that situation the same cannot be considered to be a substantial portion of the demised premises as such as to eject the tenant. It was held by the Supreme Court in Piara Lal case (supra) that it is true that a roof of one of the rooms of the rear-side had fallen down and required replacement but there was no evidence whatever that entire building or a substantial portion of it was in damaged condition and consequently the building as a whole had become unfit and unsafe for human habitation. That being so, in the present case as well, it could not be held that the entire building has become unsafe and unfit as to eject the tenant because it is only the bind portion which is old and which according to the learned Rent Controller is due to the poorly maintained structure because of the failure of the landlord to do occasional repairs. That being so, the landlord could not be allowed to take the benefit of his own wrong.

As observed earlier, apart from the fact that the landlord himself admitted in the rent, note exhibit R-5 that it is a newly constructed building, he also got the application filed for fixation of fair rent by the tenant dismissed on that ground vide exhibit R-9.

In view of these circumstances, this petition succeeds; the order of the Appellate Authority is set aside and that of the Rent Controller is restored with no order as to costs.