- (1.) Petitioner-landlords, who failed to cause eviction of the respondent-tenant, before the Rent Controller, were also unsuccessful in the appeal instituted by them and have assailed the finding recorded by both the two courts below, that no ground was made out to cause ejectment of the respondent-tenant from the shop in dispute. Shri Milkh Chand was the owner of the shop in dispute and after his death, petitioners, being the legal heirs, became landlords of the shop in dispute. It was stated in the eviction petition that the respondenttenant admitted the petitioners as landlords and executed a rent deed dated 21.4.1972 in favour of the petitioners. The shop has been fully described in the head note of the eviction petition. Respondents were tenants since the year 1961 at the rate of Rs.800/- per month. The eviction petition was filed on the following grounds:- (a) that the tenant is in arrears of rent from 2.5.1989 to 1.5.1990 and he has also not paid the house tax; and (b) that the demised shop being quite old and in dilapidated condition, had become unfit and unsafe for human habitation. Therefore, the building being unsafe and unfit for human habitation, was the ground pressed to secure eviction of the tenant.
(2.) On appearance, respondent filed reply to the eviction petition and stated that earlier a similar eviction petition was dismissed as withdrawn on 11.2.1977 and therefore again eviction petition was not maintainable. The respondent-tenant denied the averments made in the eviction petition that the building has become unsafe and unfit for human habitation. The Rent Controller formulated following issues:- "1. Whether the site plan pertaining to the demised premises produced by the applicant is wrong, if so its effect OPR 2. Whether the tender of the arrears of rent made by the respondent on the first date of hearing, is illegal, and invalid OPA 3. Whether the demised premises are in a dilapidated condition and the demised premises are unfit for human habitation OPA 4. Whether the present application is bad under Section 23 Rule 1 CPC in view of the order dated 11.2.77 passed by the Rent Controller, Barnala OPR 5. Whether the applicant is estopped from filing this eviction application on account of his act and conduct OPR 6. Whether the respondent is liable to be evicted from the demised premises on the ground mentioned in issue No.2 & 3 above OPA 7. Relief."
(3.) Five witnesses were examined by the petitioner-landlord and he relied upon documents P-14 to P-18. Respondent-tenant also relied upon the oral evidence of five witnesses. The Rent Controller after appreciating the evidence, came to the conclusion that since the rent was tendered on the first date of appearance, the ground of non-payment of rent was not available to the landlord. Petitioners placed reliance upon the testimony of AW1 Shamsher Singh, who proved his report Ex.P2, along with site plan Ex.P1. Rajesh Kumar, AW2, proved photographs of the spot Ex.P3 to P13. Petitioner no.1, Jagdish Rai himself appeared as AW5 and his testimony was duly corroborated by AW3 Surinder Kumar and AW4 Pawan Kumar.;