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PETITIONER: PIARA LAL

       Vs.

RESPONDENT: KEWAL KRISHAN CHOPRA

DATE OF JUDGMENT06/05/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1988 AIR 1432            1988 SCR  Supl. (1) 202  1988 SCC  (3)  51        JT 1988 (2)   502  1988 SCALE  (1)1012

ACT:      East Punjab  Urban Rent  Restriction Act, 1949: Section 13(3)(a) (iii)-Tenant-Eviction  of-On ground premises became unsafe and  unfit for  human habitation-Falling down of roof in one  room-Whether sufficient  for a  declaration building unsafe and unfit for human habitation.

HEADNOTE:      The suit premises consisted of four rooms in the ground floor where the appellant-tenant was running his office. One room in  the first  floor  was  in  the  possession  of  the landlord-respondent. The  roof of  one room in the rear side of the  leased portion  had fallen  down, and  it  has  been replaced by the appellant after obtaining orders of the Rent Controller under  Section 12  of the  East Punjab Urban Rent Restriction Act, 1949.      The landlord  filed a  petition  for  eviction  on  the ground of  bona fide requirement of the premises for his own use and  occupation, and  change of  user of the premises by the tenant.  As he  failed before  the Rent  Controller,  he preferred an appeal and during the pendency of the appeal he obtained the  court’s order  and amended  the  petition  and raised an  additional ground  under Section 13(3)(a)(iii) of the Act,  seeking eviction  of the tenant on the ground that the leased  premises had  become unsafe  and unfit for human habitation. The Appellate Authority called for a findings on this additional  ground from  the Rent  Controller  and  the finding went  against the  landlord. The Appellate Authority concurred with  the Rent  Controller on the said finding and dismissed the appeal.      The respondent  preferred  a  Civil  Revision  Petition before the  High Court which sustained the case, and ordered the eviction of the appellant under Section 13(3)(a)(iii) of the Act. The High Court came to the finding that the falling down of  the roof  of one  of the rooms afforded by itself a cause of  action to  the landlord  to seek  eviction of  the tenant under  the said section, and the said cause of action would subsist even if the tenant had repaired the roof under orders of the Rent Controller under Section 12 of the Act. 203      In the  appeal to  this Court  by  the  tenant  it  was

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contended  that   the  Rent  Controller  and  the  Appellate Authority had  concurrently  found  that  the  building  was neither unsafe  nor unfit  for human  habitation and as such the High  Court was not justified in interferring with those findings especially  when they  were findings  of  fact.  On behalf of  the respondent,  the appeal  was contested on the ground that  the falling  down of  the roof  in a  room  was indicative of  the damage  condition of  the  building  and, therefore, the  High Court  was fully  justified in ordering eviction, and  that the  replacement  of  the  roof  by  the appellant would  not extinguish  the right which had accrued to  the  respondent  under  Section  13(3)(a)(iii)  to  seek recovery of the possession of the leased premises.      Allowing the appeal, ^      HELD: 1.  The High  Court was not justified in allowing the revision  and directing  eviction of the appellant under Section 13(3)(a)(iii). [206H]      2. The High Court proceeded on the erroneous assumption that the  falling down  of the  roof in  one room was itself sufficient to warrant a finding that the entire building had become unfit  and unsafe for human habitation and called for a declaration to that effect. [207F]      In the  instant case,  the admitted position was except for the  roof in  one of  the rooms  falling down,  no other damage  to   the  building   was   noticed   and   in   such circumstances,  there   is  no  scope  for  holding  that  a substantial or  major part  of the building had become unfit and unsafe  for human  habitation  and  hence  an  order  of eviction was called for. [208G-H]      3. The  High Court had wrongly assumed that besides the falling down  of  the  roof,  one  of  the  walls  has  also crumbled. This  assumption was  a mistaken  one because  the expert witnesses  examined during  the trial  by the parties have spoken about the good condition of three walls alone of the room and not the fourth because they are the outer walls of the  room while the fourth wall was a common wall for the room in question, and the adjoining room and hence there was no need to certify its good condition. [205E-F]      4. The High Court had also failed to notice two factors of relevance:  viz. (1)  that the  respondent had  given his consent to  the Rent  Controller granting  permission  under Section 12 of the Act to the appel- 204 lant to  replace the  roof, and  (2) that  in spite  of  the alleged cause  of action  having arisen  due to  the falling down of  the roof,  the respondent did not seek amendment of the petition  so as to seek eviction of the appellant on the additional ground under Section 13(3)(a)(iii) but instead he chose to  prosecute his petition only on the original ground for eviction set forth therein and only after falling before the  Rent   Controller  and  preferring  an  appeal  to  the Appellate Authority,  he deemed  it necessary  to amend  the petition and  ask for  eviction  of  the  appellant  on  the additional ground.       [207C-E]      5. The  aforesaid conduct  of  the  respondent  clearly reveals that he himself has not attached any significance to the falling down of the roof in one of the rooms and has not seriously considered  the sustainable  cause of  action that had arisen  to him  under Section  13(3)(a)(iii) for seeking eviction of the appellant. [207E-F]      Balbir Singh  v. Hari  Ram, AIR 1983 Punjab and Haryana 132; Chander  Mohini v.  Jiva Singh,  [1983] 2  RCJ 523  and Sardarni Sampurna Kaur v. Sant Singh & Anr., [1983] PLR 449, distinguished.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1682 of 1984.      From the  Judgment and  order dated  23.12.1983 of  the Punjab and  Haryana High  Court in Civil Revision No. 959 of 1979      V.M. Tarkunde, A.D. Sikri for the Appellant.      Hardev Singh and R.S. Sodhi for the Respondents.      The judgment of the Court was delivered by      NATARAJAN, J.  What falls  for  consideration  in  this appeal by  special leave by a tenant against the judgment of the High  Court of Punjab and Haryana in a Civil Revision is whether the  High  Court  had  transgressed  its  revisional powers in  interfering with the concurrent findings rendered by the  Rent Controller  and  the  Appellate  Authority  and ordering the  eviction of  the  appellant  herein  from  the leased premises  and secondly  whether the  High  Court  had erred in  holding that the leased premises had become unsafe and unfit  for human  habitation  as  envisaged  in  Section 13(3)(a)(iii) of  the East  Punjab Urban  Rent Eviction Act, 1949 (hereinafter the Act). 205      The respondent’s  petition for  eviction was originally based on  other grounds such as bona fide requirement of the premises for  own use  and change of user of the premises by the tenant.  As he  failed before  the Rent  Controller, the respondent preferred  an appeal  and during  the pendency of the appeal  he obtained  orders and amended the petition and raised an  additional ground under Section 13(3)(a)(iii) for seeking the  eviction  of  the  appellant  viz.  the  leased premises had  become unsafe  and unfit for human habitation. The  Appellate   Authority  called  for  a  finding  on  the additional ground  from the  Rent Controller and the finding went  against   the  respondent.   The  Appellate  Authority concurred with  the Rent  Controller on the said finding and dismissed the  appeal. Before  the appellate  Authority  the respondent did  not seriously  press the original grounds on which eviction  was sought for and laid stress only upon the ground  under   Section  13(3)(a)(iii)   of  the   Act.  The respondent then  preferred a Civil Revision wherein the High Court sustained  his case  and ordered  the eviction  of the appellant under  Section 13(3)(a)(iii) and hence the present appeal by the appellant-tenant.      Section  13(3)(a)(iii)  was  resorted  to  for  seeking eviction of  the tenant  on the footing that one room in the rear-side of  the leased  premises had  fallen down.  We may state, even at this juncture that the High Court had wrongly assumed that  besides the  falling down  of the roof, one of the walls  had also crumbled. This assumption was a mistaken one because  the expert  witnesses examined during the trial by the parties have spoken about the good condition of three walls alone  of the room and not the fourth because they are the outer  walls of  the room  while the  fourth wall  was a common wall  for the room in question and the adjoining room and hence  there was  no need to certify its good condition. It was  therefore wrong  for the  High Court to have assumed that only three walls of the room were in good condition and not the fourth wall.      The  High  Court  deemed  it  necessary  to  allow  the Revision and  set aside the order of the Rent Controller and the Appellate Authority because of its view that the falling down of  the roof  of one  of the rooms afforded by itself a

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cause of  action to  the landlord  to seek  eviction of  the tenant under  Section 13(3)(a)(iii)  and the  said cause  of action would  subsist even  if the  tenant had  repaired the roof under  orders of  the Rent Controller, under Section 12 of the  Act. It is necessary to mention here that during the pendency of  the proceedings before the Rent Controller, the appellant obtained  the permission  of the  Rent  Controller under Section 12 to replace the roof fallen down and re- 206 cover the  cost from the respondent since the respondent had failed to  do the  work himself.  The High Court relied upon two decision  Balbir Singh  v. Hari Ram, AIR 1983 Punjab and Haryana 132  and Chander  Mohini v. Jiva Singh, [1983] 2 RCJ 523 for  holding that  once a  cause of  action ensued under Section 13(3)(a)(iii),  it  would  subsist  inspite  of  any repairs effected  by the  tenant. It  also relied on another decision Sardarni Sampurna Kaur v. Sant Singh & Anr., [1983] PLR 449  for holding  that even  if the rest of the building was in  good condition,  the falling down of the roof of one room would  constitute  sufficient  material  to  sustain  a landlord’s claim  under Section 13(3)(a)(iii) of the Act for seeking the tenant’s eviction.      A few  facts may  now be  set out.  The leased  portion comprises of  four rooms  in  the  ground  floor  where  the appellant is  running his  office. There  is a  room in  the first floor  in the possession of the respondent himself but we are  not concerned  with it. It is common ground that the roof of  one room in the rear-side of the leased portion had fallen down  and it had been replaced by the appellant after obtaining orders  of the  Rent Controller  under Section 12. The appellant’s  contention is  that the falling down of the roof in one of the four rooms would not by itself render the entire building  unsafe and  unfit for  human habitation  as envisaged under  Section 13(3)(a)(iii)  of the  Act and,  as such, the  High Court  had erred  in ordering eviction under the said  provision. It  was further  urged  that  the  Rent Controller and  the  Appellate  Authority  had  concurrently found that  the building  was neither  unsafe nor  unfit for human  habitation  and  as  such  the  High  Court  was  not justified in interfering with those findings especially when they were  findings of  fact. In  reply to  the  above  said contentions, the  learned counsel  for the respondent argued that the  falling down  of the roof in a room was indicative of the damaged condition of the building and, therefore, the High Court  was fully  justified in ordering the eviction of the appellant under Section 13(3)(a)(iii) of the Act. It was further urged  that the  replacement  of  the  roof  by  the appellant would  not extinguish  the right which had accrued to  the  respondent  under  Section  13(3)(a)(iii)  to  seek recovery of  possession of  the leased premises and the High Court had rightly adverted to this aspect of the matter also while allowing the revision filed by the respondent.      On a careful consideration of the matter with reference to the  contentions put-forth by the learned counsel for the parties, we  are clearly  of opinion that the High Court was not justified  in allowing  the revision  and directing  the eviction of the appellant under Section 13(3)(a)(iii). It is true that a roof of one of the rooms on the rear-side 207 had fallen  down and  required replacement  but there was no evidence whatever  that the entire building or a substantial portion of  it was  in a  damaged condition and consequently the building  as a  whole had  become unfit  and unsafe  for human habitation. Unless the evidence warranted an inference that the  falling down  of the  roof in  one room  was fully

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indicative of  the damaged  and weak condition of the entire building and  that the  collapse  of  the  roof  was  not  a localised event,  we fail  to see  how the  High Court could have concluded  that the  entire building  had become unsafe and unfit  for human  habitation. In fact, the appellant had replaced the  roof only  at a  cost of about Rs.200 and this would independently  show that  the damage that had occurred could not  have been of a serious or disquieting nature. The High Court  has failed  to notice  two factors of relevance, viz., (1)  that the  respondent had given his consent to the Rent Controller  granting permission under Section 12 of the Act to  the appellant  to replace  the  roof  and  (2)  that inspite of  the alleged cause of action having arisen due to the  falling  down  of  the,roof,  the  respondent  did  not immediately seek  amendment of  the petition  so as  to seek eviction of  the appellant  on the  additional ground  under Section 13(3)(a)(iii)  but instead he chose to prosecute his petition only on the original grounds for eviction set forth therein and  only after  failing before  the Rent Controller and preferring  an appeal  to the  Appellate  Authority,  he deemed it  necessary to  amend  the  petition  and  ask  for eviction of  the appellant  or the  additional ground  under Section  13(3)(a)(iii).   The  above  said  conduct  of  the respondent would  clearly reveal  that he  himself  had  not attached any significance to the falling down of the roof in one of  the rooms  and had  not seriously  considered that a sustainable cause of action had accrued to him under Section 13(3)(a)(iii) for seeking the eviction of the appellant. The High Court  has not  only failed to appreciate these factors but has  also proceeded on the erroneous assumption that the falling  down  of  the  roof  in  one  room  was  by  itself sufficient to warrant a finding that the entire building had become unfit  and unsafe for human habitation and called for a declaration  to that  effect. It is this basic error which has affected  the reasoning  of the High Court lead the High Court to  apply the  ratio laid  down in certain cases where the facts and circumstances were entirely different.      What arose  for consideration  in Balbir  Singh’s  case (supra) was  whether a  tenant would  stand deprived  of his right under  Section 12 to carry out repairs of the tenanted premises by  reason of  an application  filed by  a landlord under Section  13(3)(c) of the Haryana Urban Control on Rent and Eviction  Act (Corresponding to Section 13(3)(a)(iii) of the East Punjab Urban Rent Restriction ’Act, 1949) and con- 208 versely whether a landlord would stand deprived of his right to seek  eviction of  his tenant  under Section  13(3)(c) by reason of  an order  passed under  Section 12 empowering the tenant to carry out repairs to the tenanted premises. It was in that  context, the  High Court held that the two sections operated in  their respective  spheres  and  they  were  not mutually destructive  of each other and consequently, when a right accrued  to a  landlord under  Section 13(3)(c) of the Haryana Act  to seek  eviction of  a tenant, the right would not get  extinguished on  account of  an order  passed under Section 12 of the Act. In other words, it was held that once a cause of action had arisen for a landlord to seek eviction under Section  13(3)(c) of  the Haryana  Act that  the  said cause of  action would ensure to the benefit of the landlord in spite of the tenant effecting repairs to the building for his  benefit  in  pursuance  of  permission  obtained  under Section 12  of the  Act. The decision does not lay down that each and  every damage  to a  building, without reference to the seriousness  of its  nature or  to the  condition of the building as  a whole  would by  itself entitle a landlord to

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invoke Section 13(3)(a)(iii) to seek eviction of the tenant. In Chander Mohini’s case (supra) wherein Balbir Singh’s case (supra) was  followed, it  was held  that if the tenants had pulled down the roof of one of the rooms under their tenancy and replaced  the same,  obviously for their own convenience and for  pre-empting the landlord from filing a petition for eviction under  Section 13(3)(a)(iii),  the  landlord  would undoubtedly,  acquire   a  cause  of  action  under  Section 13(3)(a)(iii) as  soon as  the tenants  had pulled  down the roof of the room and his rights could not be defeated by the tenants  by  the  replacement  of  the  roof  of  their  own volition. The  other decision  in Sardarni  Sampurna Kaur v. Sant Singh  has also  no relevance  because it  was found in that case  that even  though the portion under the ocupation of the  tenant was  in  a  sound  condition,  a  substantial portion of  the composite  building  had  become  unfit  and unsafe for  human habitation.  In that  situation, the  High Court held  that what  was relevant  for  consideration  for passing an order of eviction under Section 13(3)(a)(iii) was the condition  of the  building viewed as a whole and not in parts or  blocks. In the instant case, the admitted position is that  except for  the roof  in one  of the  rooms falling down, no  other damage  to the  building was  noticed and in such circumstances,  there is  no scope  for holding  that a substantial or  major part  of the building had become unfit and unsafe  for human  habitation  and  hence  an  order  of eviction was  called for.  It is  therefore obvious that the ratio laid  down in  the earlier  decisions were  not at all attracted to  the facts  of the  case and the High Court had wrongly applied them because of its erroneous assumptions. 209      Learned counsel  for the  respondent tried  to  contend that apart  from the building having become unsafe and unfit for  human   habitation,  the  respondent  had  also  sought eviction  on   the  ground  he  was  genuinely  in  need  of additional  accommodation   but  the   Appellant  Court  had unjustly  rejected   the  plea  by  saying  that  since  the respondent was  jointly living  with his  son, he can secure additional accommodation  from out  of the  portion  in  his son’s  occupation.   We  do  not  find  any  merit  in  this contention because  the requirement  of the building on this ground was  not canvassed  before the  High Court.  Even the Appellant  Authority  has  observed  that  the  only  ground pressed for seeking eviction of the tenant was under Section 13(3)(a)(iii)  and   the  other  grounds  were  not  pressed seriously and  only incidentally  a halfhearted argument was advanced regarding the requirement of the leased premises by way of additional accommodation.      In the  result, the  appeal is allowed and the judgment of the High Court is set aside. The respondent’s application for eviction  of  the  appellant  will  stand  dismissed  as ordered by  the Rent Controller and the Appellate Authority. The parties  are, however,  directed to  pay and  bear their respective costs.      N.V.K.                                  Appeal allowed. 210