- (1.) THE present petition is directed against the order of the Appellate Authority dated April 23, 1980 under the East Punjab Urban Rent Restriction Act, 1949 (for short the 'act') whereby the appeal filed by the respondent-tenant against the order of his eviction passed by the Rent Controller has been allowed and the ejectment application dismissed.
(2.) THE respondent herein was inducted into the demised premises as a tenant in the year 1962. In the year 1970, the landlord petitioners filed an application under the Act for his ejectment on the ground that the shop in dispute had become unsafe and unfit for human habitation. This application was dismissed by the Rent Controller and no further action appears to have been taken by the trial Court thereafter. The petitioner filed another application in the year 1973 seeking eviction of the respondent on the ground of non-payment of rent. This too was disposed of after the rent was tendered. The present application was, thereafter, filed praying for eviction of the tenant on the grounds of non-payment of rent, that the shop had become unsafe and unfit for human habitation and that some structural alterations made by the respondent had materially impaired its value and utility. On notice to the respondent, the rent as claimed was tendered and accepted without objection, but on the pleadings of the parties, the following issues were struck: 1. Whether the disputed shop was become unfit and unsafe for human habitation ? 2. Whether the value and utility of the shop has been materially impaired by the respondent ? 3. Whether the respondent has refused to accept the applicants as his landlord, if so, to what effect ? 4. Relief: The Rent Controller held that the shop in dispute had become unfit and unsafe for human habitation and by erecting certain pillars to support the roof which was admittedly in a bad shape, the respondents had materially impaired the value and utility of the premises. For arriving at this conclusion, the Rent Controller relied very substantially on two inspection reports recorded by two different Judicial Officers one recorded by Sh. P. Lall, Rent Controller in these very proceedings and another dated 19. 9. 1974, Exhibit P-3 recorded by Sh. S. K. Garg, Sub Judge in some other proceedings between the parties. In addition to the above, the Rent Controller also relied on the statement of Shri Washir Ahmed Oversear, M. C. Sangrur, Ex. RW2 and the statement RW/1 of Shri Hans Raj, Executive Engineer, who had inspected the premises. The matter was thereafter taken in appeal by the respondent and the Appellate Authority upset the findings of fact recorded, solely on the ground that on a fresh inspection made by Shri T. S. Chauhan, Sub Divisional Engineer, PWD Bandr at Sangrur on 29. 4. 1977 who communicated his report to the Court vide letter dated 3. 5. 1977, it had been found by him that at the time of inspection the condition of the shop building was safe and it was not likely to collapse. The appellate authority also held that the efforts of the respondent to repair the shop prior to the filing of the ejectment application had been frustrated by the petitioner by filing a Civil Suit and in that situation the petitioner could not take advantage of his own wrong and seek ejectment on the grounds taken. The appellate authority also reversed the findings on issue No. 3 holding that the construction of pillars just close to the wall to support the roof did not materially impair the value of the demised premises and on the contrary enhanced it, and as such allowed the appeal and dismissed the ejectment application.
(3.) MR. M. L. Sarin, Ld. Senior counsel, appearing for the petitioners', has urged that at the time when the ejectment application was filed the building had been found to be unsafe and unfit for human habitation by the Rent Controller in these very proceedings in his inspection made on 10. 2. 1976 and in an earlier report of Sub Judge in another litigation between the parties on 19th September, 1974 Exhibit P3. In the first mentioned report it had been found that the roof was likely to give in and pillars had been erected recently by the tenant to stop it from doing so. It has also been noted that the building appeared to be more than 60 years old and had been built of nanakshahi bricks. It had also been stated that some of the balas and the beam supporting them had been eaten up by white ants and some of the balas were sagging. It had also been mentioned that the western wall was also in danger of falling down. Even in the report dated 19th September, 1974 the Sub Judge had observed that there was no roof on the adjoining shop of Hari Kishan and the bifurcating wall of the rear room of the two shops was in bad shape and could fall down at any time. It was specifically observed further that it would be unsafe if this wall was not demolished. The inspecting Court found that close to the dilapidated wall some support had been given to the roof to stop it from falling as the wall supporting the roof appeared to be in danger. Mr. Sarin also relied on another report Ex. P2 dated 17th November, 1974 recorded by a person stated to be an Expert, who had stated much to the same effect. Mr. Sarin has, therefore, argued that admittedly when the ejectment application was filed it was proved beyond doubt that the building was unsafe and unfit for human habitation. In this connection he has also urged that if the Court found as a matter of fact that during the pendency of the appeal that the building had been repaired structurally the right which had accrued to the petitioners as the owners of the premises to secure the eviction of the tenant could not be taken away. In this connection he has relied on Maharaj Jagat Bahadur Singh v. Badri Parshad Seth,1 (1963) 65 P. L. R. 452 (S. C.), Jagdish Chand etc. v. Mst. Bachni Devi,2 1980 C. L. R. (C) 490, Balbir Singh v. Hari Ram,3 1982 (2) R. L. R. 463, Krishan Lal v. Madan Copal,4 1984 (1) R. L. R. 65, Finally it has been submitted that as the report of Shri Tirath Singh Chauhan had not been proved and the objections filed against it had not been decided by the appellate authority, it would not be read in evidence.;