Surinder Singh, J. - (1.) THIS revision petition by the landlord arises in the circumstances which are these. Ram Gopal petitioner (hereinafter referred to as the landlord) filed a petition against Lekhu Ram respondent (hereinafter referred to as the tenant) for the ejectment of the latter on various grounds from a shop situated at Nabha. It is needless to recapitulate all the grounds of eviction because after framing of the issues, at the time of the arguments before the Rent Controller, the counsel for the petitioner pressed only a single ground of ejectment, i.e., the shop in dispute was unfit and unsafe for human habitation. The other grounds of ejectment were not pressed. The learned Rent Controller considered the evidence produced by the parties on this point and after appraising the same, found the issue in favour of the petitioner. The ejectment of the respondent from the shop in question was, therefore, ordered, though he was allowed three months time to vacate the same. The tenant went up in appeal before the Appellate Authority. Before the said Authority, a point arose that the disputed shop which consists of three portions, according to the landlord had been let to the tenant as a whole, but according to the tenant he had taken only the front two rooms of the shop on rent It is the common case of the parties that the roof of the third room at the back has fallen down and it is in a dilapidated condition. Furthermore, the only entry to that third room is through the front two rooms of the shop. It is also in evidence that the rain water which pours down in the roofless third portion, has no outlet from the shop. In order to decide the controversy in regard to the number of rooms taken on rent by the tenant, the lower Appellate Authority allowed the amendment of the written statement filed by the tenant enabling him to make this allegation After allowing the amendment, the Appellate Authority obtained the report of the Rent Controller as to whether only two rooms of the shop had been rented or the whole of it had been taken on rent by the tenant. The Rent Controller made a report that only two rooms of the shop had been leased out. Accepting this report, the Appellate Authority proceeded to consider the main controversy between the parties as to whether the demised shop was unfit and unsafe for human habitation or not. After appraising the evidence on the record relied upon by both the parties, the Appellate Authority held that the two rooms of the shop leased to the tenant were fit and safe for human habitation. He, therefore, set aside the order of the Rent Controller and dismissed the ejectment application of the landlord. The present Revision Petition has now been filed to impugn the verdict of the Appellate Authority.
(2.) DURING the course of prolonged arguments in this case, the learned counsel for the petitioner laid stress only on two points. His first submission is that when the case was being initially tried by the Rent Controller, the respondent -tenant had moved an application for the production of additional evidence on the question as to whether two rooms of the shop had been taken by him on lease or the whole of the shop and this application had been dismissed by the Rent Controller. The dismissal was also affirmed by the High Court in revision. Subsequently, the tenant moved another application for amendment of the written statement before the Rent Controller and this application was also turned down by the Rent Controller. It was only the third application moved before the Appellate Authority for the amendment of the written statement in which the tenant succeeded in obtaining an order for amendment of the written statement and in consequence thereof as already noticed, a finding was recorded that the tenant had taken only two rooms on rent and not the third room at the tack. The learned counsel has sought to argue that in view of the earlier decision of the Rent Controller one of which was affirmed by the High Court, the Appellate Authority could not allow the amendment of the written statement. The argument may have some justification, but if adjudged from the point of view of the factual position, the objection so taken cannot be sustained. The tenant has produced on the record Rent Note Exhibit RW 5/A dated April 3, 1964 and the execution thereof is admitted by both the parties. In this Rent Note, it is clearly staled that the tenant had taken only two front rooms out of the three rooms of the shop, on rent. In face of this document, the execution of which is not disputed, the controversy must be set at rest. The course adopted by the Appellate Authority in allowing the amendment of the written statement was, therefore, quite justifiable. Coming now to the main and, in fact, the solitary question as to whether the demised premises is unfit and unsafe for human habitation, I find that the two Rent Control Authorities below have come to a conflicting decision after appreciating the same evidence Indeed, normally this Court would accept the assessment made by the lower Appellate Authority, but a perusal of the order of that Authority indicate that it has not properly appreciated the evidence on the point and has, in fact, gone on surmises, so far as the landlord is concerned, he produced not only some oral evidence proved the dilapidated state of the shop, i.e., Kulwant Rai (AW 2). Vasdev Sharma, Photographer (AW 3), Raghbir Chand (AW) independent witnesses, but also a retired Sub Divisional Officer Shri Shamsher Singh (AW 4) as an expert on the point. The last mentioned witness inspected the shop and prepared a site plan AW 4/1 and as per his report, followed by his deposition before the Rent Controller, the shop in question was found to be unfit and unsafe for human habitation. He also stated that the back portion of the shop had fallen down and the water from that portion was seeping into the remaining portion. He also deposed that the roof of the front two rooms of the shop was of third class mud and the rafters and Karris of these rooms were moth -eaten. As referred to earlier, this expert witness further deposed that there was no outlet for the rainy water falling in the back portion of the shop. The learned Appellate Authority while rejecting the testimony of this witness, observed that the witness had failed to give the precise condition of the damaged walls and the extent of damage to the rafters and Karris This criticism is factually wrong and even otherwise, unjustifiable. In the course of his examination in chief, Shri Shamsher Singh states that the flooring of the shop is brick laid in mud and the walls are made partly of small Lahori bricks and partly of big bricks and they are laid in mud. The plastering is also of mud, though the walls of the front room are cement plastered from inside. The expert witness was of the firm opinion that the shop in dispute was not repairable and requires reconstruction. The witness faced a lengthy cross -examination during which he deposed Karris of the rooms were in bent position and were damaged and, therefore, the roofs have to be replaced. He went further to depose that the front portion will remain unsafe even if the roofs are changed, but the walls are not re -constructed. According to him, the walls are old and there are patches on it and these cannot be set right by plaster alone. In face of this material, I fail to understand how the learned Appellate Authority made the observation that the witness had not given the precise condition of the damage to the walls, the rafters and the Karris.
(3.) AS against the above evidence of the landlord, the tenant sought to place reliance upon the evidence of Goverdhan Dass (RW2), Piara Lal (RW2) Madan Lal (RW3) and Jagan Nath Draftsman (RW 4). The last mentioned witness is the expert in regard to the condition of the building. According to this witness, the front two rooms of the shop are quite fit and safe for human habitation. This witness when cross -examined was obliged to admit that there was no outlet for the rainy water falling on the back portion of the shop. He also admitted that the walls were made of small bricks and those walls had been affected by rehi at some places As regards the roof, he admitted that it was made of rafters and balas with sirki over it and on the top some mud and dirt had been placed. The roof of the shop in dispute was admitted to be of third class mud roofing category. The witness admitted that he had not inspected the wood work by knocking at the same with some tool in order to see if it had been moth -eaten or not. In regard to the walls of the two rooms, he stated that there was kacha pacca plaster at some places and at other places, there was no plaster at all. It is beyond comprehension as to how the evidence of this witness has been preferred by the Appellate. Authority over that of the expert produced by the landlord. There is no manner of doubt that the landlord had succeeded in proving that the premises in dispute are unfit and unsafe for human habitation. The argument that it has withstood for the last several years and the tenant is working in the same, is of no avail as before recording a finding in regarding to the building unfit and unsafe, it is not necessary to wait till the building actually falls.;