Surender vs Nand Lal

NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 480 of 2018

SURINDER .....APPELLANT(S)

VERSUS

NAND LAL .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 481 of 2018

AND

CIVIL APPEAL NO. 482 of 2018

JUDGMENT

A.K. SIKRI, J.

These matters were listed for hearing on January 18, 2019. The

counsel for the respondents did not appear though the matters were

Signature Not Verified passed over once and were called again for the second time. In these Digitally signed by ASHWANI KUMAR

circumstances, we heard the learned counsel appearing for the Date: 2018.02.01 16:44:39 IST Reason:

appellant and reserved the judgment. However, in order to give an 2

opportunity, this Court granted one week’s time to the respondents to file

their written submissions. Even when more than one week has lapsed,

no written submissions have been filed by the respondents. In these

circumstances, we have ourselves perused the entire record while

considering the submissions of the appellant’s counsel.

2) The appellant herein is the owner of the premises situated in Main

Bazar, Old Najafgarh Road, Bahadurgarh, Haryana. In these premises

few shops were constructed in mid 1960s 1 by the father of the appellant

and one shop each was let out by the respondents in these appeals.

The premises are governed by the Haryana Urban (Control of Rent and

Eviction) Act, 1973 (hereinafter referred to as the ‘Act’) as per which

tenants can be evicted only on certain specified grounds. One of the

grounds for eviction is that the premises let out is in dilapidated condition

and cannot be repaired/reconstructed without evicting the tenant. The

appellant filed eviction petitions against the respondents before the Rent

Controller, Bahadurgarh, under Section 13 of the Act on the ground that

the shops which are built up on mud had become unsafe, inhabitable

and were in dilapidated condition. The Rent Controller was pleased to

dismiss the eviction petitions after recording a finding that tenanted

premises were not in a dilapidated condition. The appeal was preferred

by the appellant against the orders of the Rent Controller before the

1 Though respondents had disputed the year of construction and according to them construction was carried out 30-40 years ago only. 3

Additional District Judge-cum-Appellate Authority under the Act. These

appeals were also dismissed. Thereafter, the appellant filed revision

petitions, which have also been dismissed by the High Court. Identical

orders are passed dismissing these revision petitions and the operative

portion of order dated July 09, 2015 passed by the High Court in the

revision petitions is as follows:

“In the present case, petitioner had sought ejectment of respondent No.1 from the shop in question on the ground that it had been rendered unfit and unsafe for human habitation. In this regard, petitioner examined his expert. Respondent No.1 also examined his expert to establish that the premises in question was fit for human habitation. The Courts below after going through the reports of the expert and the photographs, placed on record, came to the conclusion that the premises in question was fit for human habitation. In fact, the shop in question had not been got repaired by the petitioner.

In the facts and circumstances of the present case, no ground for interference with the finding of fact arrived at by the Courts below, is made out.”

3) The learned counsel for the appellant has made twofold submissions. In

the first place, it was argued that during the course of the trial, the

appellant had placed on record the report of an expert, viz., an Engineer

who was also examined as PW-3. He also filed an affidavit stating that

he had carried out physical inspection of the shop and gave a detailed

report dated March 10, 2006, which was exhibited as Exhibit P-2. The

condition mentioned by him finds mention at pages 29 and 30 in

paragraph 19 of the judgment dated April 30, 2010 of the trial court.

4 Relying on that report, learned counsel for the appellant argued that it

speaks volumes about the state of existing construction and clearly

shows that the shop in question is in a dilapidated condition. It states

that cracks have been developed in the superstructure walls, RCC slabs

of the stairs, roof projection. It also mentions that cement plaster has

been eroded at some places leaving the bricks in the walls as naked and

the naked walls have been eroded leaving their joints and coming out of

the superstructure walls due to sudden dampness, efflorescence in walls

caused by wash/waste water drains passing along with the rear walls of

the shop. It also states that the roof projection deflected and cracks

developed may cause heavy damage due to sudden collapse at any

time. It also states that floor level of the shop is lower than the existing

main road level, thus, attracting dampness from rain water and dry

weather flow. Learned counsel for the appellant submitted that, no

doubt, the respondents had also examined a retired Engineer as RW-4,

who had filed his affidavit and his report was accepted as R-1.

However, the report filed by RW-4 did not discuss the conditions of the

shops and it only mentioned about the photographs of the roof and

flooring which was taken with the help of a digital camera and the report

also mentioned about Chhajja in the front side stating it to be in a good

condition. He, thus, submitted that the findings of the courts below were

totally perverse which relied upon the report of RW-4 and ignored the 5

report of PW-3.

4) Second submission of the learned counsel for the appellant was that the

subsequent events which happened fortified the report of PW-3

inasmuch as in the year 2012, when the appeal of the appellant was

pending before the Additional District Judge-cum-Appellate Authority, the

Chhajja had fallen down. This event, according to him, proves that the

premises are in dilapidated condition and unsafe for habitation. He

submitted that even when this fact was brought to the notice of the

Appellate Authority as well as the High Court, these courts have not

taken note of this subsequent development, though they were supposed

to look into the same. On this ground also it was argued that the

findings of the courts below are perverse.

5) In his judgment dated April 30, 2010, the Rent Controller discussed the

expert evidence led by both the parties and after detailed examination of

both the reports, he formed an opinion that the appellant was not able to

prove that the shops were in a dilapidated condition. Discussion on this

aspect runs as follows:

“23. In the opinion of the court, the petitioners have not been able to prove that the shop is in dilapidated condition. On perusal of photographs Ex.R3, it is evident that the roof of the shop has been consisting of wooden battons. It has come in the cross-examination of PW2 Surender that ever since the shop has been let out to the respondent, they have never bothered to get the same repaired or white-washed. Their own witness of petitioners PW4 Parveen Kumar has also 6

stated in the cross-examination that the shop of Nand Lal from outside is in good condition. He also stated that between his shop and the shop of Varinder no other shops is there and the stairs of his shop are broken and had cracks but the remaining shop is fine. PW3 Sunil stated in his cross examination all the four shops where the construction at the same time. Since PW4 Parveen stated in his cross-examination that except four stairs his shop is fine and that all the shops were constructions together, it is improbable that one shop is about to fall being dilapidated and the other shop is fine. Beside this, PW1 Sh.R.Punia has stated in his cross-examination that he has not mentioned in the report the size of the plaster which has eroded from the walls and at what places.”

6) Thus, after examining the expert witnesses who are produced by both

sides, the Rent Controller returned the aforesaid findings, which findings

were approved by the Appellate Authority as well in its judgment dated

September 17, 2012. We find that the view taken was plausible view

which cannot be considered as perverse. The revisionary jurisdiction of

the High Court is limited and, therefore, it rightly observed that no

ground for interference with the finding of fact arrived at by the courts

below was made out.

7) Insofar as the contention of the appellant based on alleged subsequent

event is concerned, except arguing that it was taken before the appellate

court as well as the High Court, no material is produced to support this

submission. Grounds of appeal filed before the Appellate Authority or

the copy of the revision petition has not been placed on record.

Moreover, judgments of the Appellate Authority as well as the High Court 7

do not reflect that such a contention was raised before the said courts.

In the absence thereof, the alleged subsequent event cannot be taken

into consideration.

8) We, therefore, do not find any merit in these appeals which are

accordingly dismissed.

However, if the condition of the premises, as of today, is

dilapidated and the appellant is correct in his submission that the

Chhajja of the premises had fallen down in the year 2012, it would be

open to the appellant to file a fresh petition on the aforesaid ground as

these events would furnish a fresh cause of action to the appellant.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN) NEW DELHI;

FEBRUARY 01, 2018.