M/s Deena Paints (P) Ltd v. Saroj Gupta

Mr. Sanjay Majithia, learned Senior counsel, appearing on behalf of the tenant – revisionist, assisted by Mr. Shailendra Sharma, Advocate and Mr. Jashanpreet Singh Gill, Advocate, vehemently argued that finding of the learned Rent Controller that building is not in dilapidated condition is perfectly valid and finding of the learned Appellate Authority that building is unfit and unsafe for human habitation is based on conjectures, surmises and no evidence. Mr. Majithia, further argued that even if other portion of the building of which demised shop is a portion has fallen down, it does not mean that demised shop is also in dilapidated condition. He C.R. No. 363 of 2005 4 has further argued that even if one of the wall has developed cracks, it does not mean the entire building is in dilapidated condition. He has placed reliance on the judgment of this Court in the matter of Daulat Ram vs. Pt. Laxmi Narain, reported in 2003(2) RCR 353, Tek Chand vs. Rattan Lal and others, reported in (2003-1) P.L.R., 513 and Laxim Devi vs Kishan Lal, reported in 2003(1) RCR (Rent) 398. On the other hand, Mr. Sanjiv Bansal, learned counsel, appearing on behalf of the respondent, has vehemently argued that jurisdiction of this Court under Section 15(5) of the Act is limited and if a finding of fact recorded by the Court below is based on evidence, it should not be disturbed while exercising revisional jurisdiction even if two views are possible. Mr. Bansal has placed reliance on the judgment of this Court in the matter of Brij Lal vs. Shiv Mohan and others, reported in 1996(2) R.C.R. (Rent) 24. Learned Appellate Authority, in the impugned judgment, has observed as under:- “11. The ld. Rent Controller has observed in Para No. 14 of the impugned judgment that of course there are visual few cracks in the walls of the shop as shown by the photographer relied upon by the petitioner yet there is no evidence with regard to depth of those cracks and the extent to which they have damaged the wall. He has also further observed that these C.R. No. 363 of 2005 5 cracks appear to be superficial on being outer side of the walls most probably on plaster. The photographs Ex.AW 7/2 to Ex.AW 7/24 taken and proved by Shri Kishan Sood AS-7. They have not been rebutted by the respondent / tenant. Shri G.D. Wadhera, AW-1, Shri A.N. Balia AW-6, both building experts Shri Rajesh Kashyap, Advocate, Local Commissioner AW- 9 have reported that there are cracks in the building and the building is unfit and unsafe and for human habitation. Rajesh Kashyap AW-8 has also given a detailed report after visiting the spot and had drawn the plan of the cracks observed by him, whereas Shri G.D. Wadhera RW-1, building expert examined by the respondent is totally silent about the cracks shown in the photographs and found by the Local Commissioner, Shri Rajesh Kashyal, Advocate at the spot. Hence, the report of the Shri G.D. Wadhera RW- 1 is of no consequence because he has failed to give the depth, length and width of cracks. The photographs Ex.AW7/18 shows that rear side of the top of wall had buldged out and there is a gap of few inches in between the buldged out portion from the remaining wall. The reports of building experts Shri R.C. Verma and Shri A.N. Waldia, which are Exts. AW4/1 Ex.AW6/1, respectively and photographs C.R. No. 363 of 2005 6 Ex.AW7/1 to Ex.AW7/24 shows that Mud mortar has started coming out of the wall. The walls have buldged outside. The report of Shri A.N. Baldia Ex.AW6/1 shows that there are horizontal as well as vertical cracks in all the four walls shown in the photographs Ex.AW7/11 to AW7/15, Ex.AW7/16 and Ex.AW7/16B and it also shows that plaster had been damaged the bricks corroded and the floor depressed and damaged at several places. Furthermore, the perusal of the Ex.AW7/11 shows that vertical support has been given to the roof of the shop/building by placing an iron Phata. Similarly perusal of the Ex.AW7/13 shows that the tiles used in the roof are fresh. The perusal of the Ex.AW 7/18 and Ex.AW7/20 shows that wall has gone out of plumbs which is a structural cracks in the building. The plea of the respondent is that the cracks are man-date and the same have appeared in the building because the Parnala of the building was blocked by the petitioner but this plea of the respondent is falsified from the careful examination of RW-3. RW-3 Ashok Kumar, Regional Manager, examine by the respondent who has stated as under:- C.R. No. 363 of 2005 7 “This is my own opinion that LRs of the petitioner have closed the parnala during the rainy season. I have not gone upstairs to see whether there are building adjoining to the property of the owner also. Also I cannot say as to what extent of the owner adjoins the property in dispute. The case was pending at that time. We have not made any application in the court complaining of the fact that parnala has been blocked by the petitioner.” Therefore, in view of the admission made by Shri Ashok Kumar RW-3, it is categorically clear that there is no proof on the file to prove that petitioner or his L.Rs. had closed `Parnala’ of the property in dispute…… Moreover, lastly and most importantly the respondent in this case has not stepped into witness box to deny the assertions and evidence led by the petitioner / appellant. The respondent simply examined RW-3 Shri Ashok Kumar, Regional Manager but he was not authorized by the respondent to make statement in the court on oath. He was simply authorized as per document Ex.RX to file any paper, document and to compromise, if necessary in this case. Therefore, adverse inference C.R. No. 363 of 2005 8 is drawn against the respondent due to non appearance of the respondent or a duly authorized person by the respondent…..” Mr. Sanjay Majithia, learned senior counsel could not dispute the photographs Ex.AW7/1 to Ex.AW7/24, however, argued that all these cracks are because of the fact that parnala of the building was blocked by the landlord to create the evidence. I find no force in the argument of Mr. Majithia because learned First Appellate Court rightly observed that the Manager of the tenant could not prove that parnala was ever blocked by the landlord. In the matter of Daulat Ram (supra), learned Single Judge of this Court declined the eviction of the tenant on the ground that landlord could not produce any evidence to the effect that the entire building was unfit and unsafe for human habitation and in the absence of any evidence to the effect that the entire building is in dilapidated condition, the tenant cannot be ordered to be evicted. Likewise, in the case of Tek Chand (supra), the learned Single Judge of this Court has held that only because the building is old does not mean the building was unfit and unsafe for human habitation. In the matter of Laxmi Devi (supra), again old age of the building or two/three wooden battens of roof are damaged does not mean that building is unfit and unsafe for human habitation. C.R. No. 363 of 2005 9 In the present case, the learned Appellate Authority has rightly come to the conclusion that there is evidence to prove that the entire demised premises is unfit and unsafe for human habitation. Learned First Appellate Court has discussed in detail the entire evidence on record and come to the conclusion that demised premises is in dilapidated condition. There is no perversity and illegality in the findings of Appellate Authority. Judgments cited by the revisionist – tenant have no application in the peculiar facts and circumstances of the present case. In the case of Brij Lal (supra), this Court in paragraph no.3 has held as under:- “3. It is true that the scope of interference in a Rent Petition is wider but it does not mean that a finding of fact recorded by the authorities below can be set aside by re-appraising the evidence. It is required to be shown that the finding recorded is perverse or against the settled principle of law calling for interference. This court and the Apex Court have on many occasions held that even if on appreciation of evidence two views are possible, this Court will not interfere with the view taken by the lower authority only because of the fact that if prefers or intends to take other view.” C.R. No. 363 of 2005 10 In the opinion of this court, finding recorded by the learned First Appellate Court is correct and is based on the evidence. No interference is called for in this petition. Present petition is devoid of merit, hence is dismissed. September 07, 2010 ( Alok Singh ) Judge