M.M.KUMAR,J - (1.) THIS is tenant's petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, challenging order of reversal dated 11.3.1999, passed by the learned Appellate Authority directing his ejectment on the ground that demised premises have been rendered unsafe and unfit for human habitation. The findings recorded by the Rent Controller on the issue as to whether the demised premises have been rendered unsafe and unfit for human habitation, are reversed by the learned Appellate Authority. FACTS : A. Earlier ejectment petition filed in 1983
(2.) THE landlord-respondent on 3.9.1983 filed an ejectment application, bearing case No. 92R of 1983 before the learned Rent Controller, Jagadhari. The landlord-respondent had taken various grounds of ejectment, namely, non- payment of rent, change of user from grass cutting to that of a factory and that the demised premises have become unfit and unsafe for human habitation. The application was dismissed by the Rent Controller on 7.8.1990 (Ex.R-3). On all the issues the Rent Controller had recorded the finding against the landlord-respondent by holding that the rate of rent was Rs. 20/- per month, there was no change of user and the demised premises were not unfit and unsafe for human habitation. The order passed by the Rent Controller was upheld by the Appellate Authority who dismissed the appeal filed by the landlord- respondent on 5.11.1992 (Ex.R-4). Against the order of the Appellate Authority a Civil Revision bearing C.R. No. 722 of 1993, was filed before this Court which on 4.7.2007 has been dismissed as withdrawn on the statement made by the learned counsel for the landlord-respondent to the effect that in view of the subsequent ejectment application filed against the tenant-petitioner, which has been allowed, the revision petition was rendered infructuous. B. The subsequent ejectment petition of 1988 relevant to the instant Revision Petition The ejectment application in the present case was filed on 14.12.1988 before the Rent Controller, being Rent Case No. 90 of 1988. It is obvious that the earlier application filed in 1983 and decided by the Rent Controller on 7.8.1990, was pending although a period of about 5 years had elapsed. The landlord-respondent has again pleaded the aforementioned three grounds of nonpayment of rent, change of user and that the building has become unfit and unsafe for human habitation. The application was again dismissed by the Rent Controller on 11.1.1997, holding that the rate of rent was Rs. 20/- per month as has been held in the earlier rent case No. 92R of 1983 and the tender made by the tenant-petitioner at the aforementioned rate along with interest and cost was not short. Therefore, the first ground of ejectment was repelled. The Rent Controller further found that there was no change of user after recording a categorical finding that no document was produced to prove that the shop was actually taken on rent for grass cutting. As no rent note was produced nor any oral evidence was brought before the Court to show that the premises in question was taken on rent for grass cutting and that there was no bar on the part of the tenant-petitioner to install his factory in the demised premises, the second ground of ejectment was also rejected. The other ground of ejectment that the building has become unfit and unsafe for human habitation, was also rejected by the Rent Controller by observing as under :- "17. While arguing on this point learned counsel for the respondent took the plea that after the visit of Shri D.B. Gaur, Executive Engineer Shri Hem Chand Goel has also inspected the shop and his report is Ex.R1 on this file and the site plan prepared by him is Ex.R2 on the file and as per his statement as RW1 before the court the building is quite safe and fit for human habitation. So, the findings on this issue be returned against the petitioner. 18. as at this stage there are two different reports before the court i.e. one of Shri D.B. Gaur Ex.A2 and other of Shri Hem Chand Goel as Ex.R1 on the file but during the cross-examination of Shri D.B. Gaur it has come that technicalities of the building is prime factor for assessing the condition of the building but in his report Ex.A2 Shri D.B. Gaur Executive Engineer has not examined technical aspect of the building as admitted by him. Moreso, earlier he had inspected the building in 1985 and at that time he had reported that the building was fit for human habitation and the same was safe. The report of Shri D.B. Gaur, Executive Engineer is not based on facts and he has given simple report that the same is unfit and unsafe whereas Shri Hem Chand Goel has given the complete report and reasoning that how the building is fit and safe and he has also prepared site plan alongwith his report. Moreover, law was laid down by our Hon'ble High Court in case Sohan Lal v. Amar Nath and others, 1992(1) RCR(Rent) 543 : 1992(1) RLR 277 that if in the report there is nothing to suggest sagging of foundation and walls going out of plumb report on the basis of age of building only, cannot be inferred that the building has become unsafe and unfit for human habitation. Similarly in the report of Shri D.B. Gaur learned local commissioner Ex.A2 there is no such mention that there is sagging of foundation and walls going out of plumb and the said report is also on the age of building only and as such I agree with the report of Shri Hem Chand Goel, expert witness in this case and does not believe the report of Shri D.B. Gaur, Executive Engineer and on the basis of report of Shri Hem Chand Goel, Ex. R1 I am of the view that petitioner has not been able to prove that shop is unsafe and unfit for human habitation and this issue is decided against the petitioner."
(3.) IT is appropriate to mention that the report of the expert Shri D.B. Gaur, Executive Engineer (Ex.R-1), was disbelieved wherein he has opined that the building had become unfit and unsafe for human habitation, whereas the other report submitted by Shri Hem Chand Goel that the building was safe and fit for human habitation was accepted.;