Prem Chand Mittal vs Mohinder Singh

S.D.Anand, J.—The petitionertenant has applied for the invalidation of the finding dated 13.3.32009. The learned Appellate Authority affirmed the view obtained by the learned Rent Controller directing the ejectment of the petitionertenant from the tenanted premises on a finding that the premises aforementioned had become unfit and unsafe for human habitation. The learned Appellate Authority did not go into the controversy about the validity or otherwise of the finding recorded by the learned Rent Controller that the respondentlandlord has not been able to prove that the petitionertenant had changed the user of the tenanted premises. It would follow therefrom that parties restricted their controversy to the validity or otherwise of the finding that premises had become unfit or unsafe for human habitation.

Learned counsel appearing on behalf of the petitionertenant canvassed that impugned finding is not correctly appreciative of the fact that the building expert examined by the respondentlandlord was not a qualified person.

The plea raised is oblivious of the fact that the petitioner did not examine the building expert as his own witness to rebut the deposition on oath of PW2Kulwant Singh who had inspected the tenanted premises and had given a precise finding about the tenanted premises being unfit and unsafe for human habitation. Even otherwise, it may be noticed that the statement made by the expert is in accord with the pleadings and deposition on oath of the respondentlandlord. It is apparent from a perusal of the record that the expert had been allowed to inspect the premises by the learned Rent Controller vide order dated 22.2.2001. Further, the photographer had taken photographs Ex. PW3/1 to Ex. PW3/15 (of the tenanted premises) with the leave of the Court which came to be granted vide order dated 22.2.2001 itself by the learned Rent Controller. Though the expert did concede that no test had been conducted to check the adhesive strength of the cement, he was equally categorical in asserting that �100% of the batons used in the roof in the property in dispute were moth eaten and termite effected.� The deposition on oath of the expert is cemented by the testimony of PW3Surinder Sharma, a professional photographer, who had taken photographs Ex. PW3/1 to Ex. PW3/15 (Ex. PW3/16 to Ex. PW3/30 being their negatives), under the instructions of the building expert Kulwant Singh, on 24.3.2001. A perusal of the photographs will also support the presentation that a hole had been found in the roof. The fact that 100% of the batons used in the roof were found to be moth eaten and termite effected and also the fact that a hole had been found in the roof would go a long way to support the finding recorded by the learned Appellate Authority that the respondentlandlord had been able to prove that the tenanted premises had become unfit and unsafe for human habitation. Insofar as the controversy about the change of user is concerned, finding recorded by the learned Rent Controller would, even otherwise, deserve to be affirmed, though for reasons slightly a different from those recorded by the learned Rent Controller. In this case, the respondentlandlord averred that the premises had rented out �for the sale and purchase of packing material business� but that the petitionertenant has changed it to an industry wherein he is running a saw mill. The petitionertenant denied that averment in the pleadings and asserted that the premises had been taken on rent �for running a wood cutter for the manufacturing of wooden blocks.�

It is in the statement of none else or other than Gurcharan Singh, son and power of attorney of the respondentlandlord, that the tenancy was documented (�rent note was executed between my father and respondent�). He initially claimed to have produced the rent note on this file. However, after having gone through the file, he told the Court that no such rent note was available (on the file). However, he reiterated in his deposition on oath that original rent was in his possession at his residence which he undertook to produce after lunch. Case was ordered to be taken after lunch. When Gurcharan Singh got back to the witness box after lunch, he conceded that he had not been able to trace out the rent note (� I could not trace out the rent note from my house�.) He further conceded that he was not present when the rent not was scribed. He also had no idea about who has attested that rent note. He further proceeded to state that he had a glance at the rent note for the first time at the time this petition was filed. The position that, thus, emerges, is that the respondentlandlord has not been able to place on record the documentation which he claims to have been in his possession and which could have clinched the controversy about the change of user.

For the reasons noticed above, the finding recorded by the learned Rent Controller negativing the averment by the respondentlandlord qua change of user shall stand affirmed.

In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. The petitioner shall have two months'' time from today to vacate the premises aforementioned.