Brij Lal vs Shiv Mohan and Others

G.C. Garg, J.—Respondents'' application u/s 13 of the Haryana Urban (Control of Rent And Eviction), Act 1973 (for short the Act'') seeking ejectment on the ground of nuisance and the premises being unsafe and unfit for human habitation, was allowed by learned Rent Controller by order dated June 1, 1987. Appeal there against was dismissed by the learned appellate authority vide order dated October 18, 1988. Hence this revision petition.

Learned counsel for the petitioner after submitting that the scope of interference by the High Court in a revision petition under the Rent Act is much wider than the scope of interference u/s 115 of the Code of Civil Procedure, tried to argue that the finding recorded by the authorities below to the effect that the premises, a shop in this case, has become unsafe and unfit for human habitation, is erroneous in law. He in support of his submission referred to the report of the Local Commissioner who had found the roof to be intact. It was also submitted that onus to prove that the premises have become unsafe and unfit for human habitation was on the landlords and they have utterly failed to discharge the same.

It is true that the scope of interference in a Rent Petition is wider but it does not mean that a finding of fact recorded by the authorities below can be set aside by re-apraising the evidence. It is required to be shown that the finding recorded is perverse or against the settled principle of law calling for interference. This Court and the apex Court have on many occasions held that even if on appreciation of evidence two views are possible, this Court will not interfere with the view taken by the lower authority only because of the fact that it prefers or intends to take other view.

The landlords have clearly averred that the condition of the shop is poor and its walls are in a damaged condition because of leakage of water through roof, which was in a damaged condition. The Local Commissioner noticed that there was a hole in the roof of the size of 1''x1-1/2'' at one place and at other place the beams had either broken or had been damaged. By reference to other evidence, it could not be disputed that the walls of the shop arc kacha and that the shop is pretty old and that the condition of the rear wall is in a bad shape. The petition for ejectment was filed in the year 1984 and period of 12 years has gone by and during this period the condition of the shop must have further deteriorated. There is no evidence on the record to show that the walls were got repaired by the tenant or by the landlords at any time after the filing of the petition. The mere fact that the tenant has replaced the entire roof of the shop after putting an application u/s 12 of the Act wherein he stated that the roof had damaged and he had erected walls/pillors to support the broken beams to avoid collapse in no way helps the petitioner, it rather proves that the shop was not in a fit condition to be used for human habitation. By replacing the roof, the tenant cannot defeat the right of the landlords to seek ejectment especially when the walls continued to be kacha and in a damaged condition. Moreover, the tenant was allowed to effect repairs in the roof but he in the garb of that order replaced the whole roof. A right that had accrued to the respondents, namely, to seek ejectment of the tenant from the premises in question on the ground that the same has become unsafe and unfit for bumen habitation, in my view, cannot be thwarted by the tenant by his own act. Reference in that behalf may be made to Balbir Kumar v. Kaka Ram 1994 (1) RCR 259. The tenant now by replacing the roof cannot be heard to say that the premises are now fit and safe for human habitation or that the same can be used for sometime more.

This apart, the finding that the premises have become unsafe and unfit for human habitation, in my view, in the facts and circumstance of this case is a pure finding of fact. The apex Court in Amar Nath Sagar Chand v. Lal Chand Bansal 1994 (1) RCR 638, ruled that the High Court is not justified while sitting in revision, to upset the finding recorded by the authorities below on appreciation of evidence to the effect that the premises are unsafe and unfit for human habitation. As already observed, no material has been brought to my notice to show that the finding is vitiated or contrary to evidence or law. In the light of the above, no interference is therefore called for with the view taken by the authorities below.

The authorities below have also recorded a finding that the petitioner is a source of nuisance and is, therefore, liable to be evicted from the shop in question. Either the petitioner or his brother has already been challaned in four/five cases of gambling at the premises. Satta business (gambling) is nothing but a source of nuisance to the landlords and the neighbours. Brother of the petitioner is admittedly the employee of the petitioner who has been challaned under the Gambling Act. Carrying of gambling in the shop has in my view rightly been held to be a source of nuisance to the neighbors.

In view of the above, I find no merit in the revision petition and the same is dismissed. Parties are left to bear their own costs. However, the petitioner is given six months'' time to vacate the premises in question subject to the condition that he will place on record an undertaking within one month from today to the effect that he will hand over the actual physical possession of the shop/preemies in question to the respondents-landlords immediately on the expiry of six months.