V.S Aggarwal, J.:— The present revision petition has been filed by Rattan Lal, hereinafter described as the petitioner, directed against the order of eviction passed by the learned Rent Controller, Bhiwani, dated 18.9.1996 and of the learned Appellate Authority, Bhiwani, dated 23.7.1998 The learned Rent Controller had passed the order of eviction which was upheld by the learned Appellate Authority.
2. The relevant facts are that respondent Bihari Lal had filed a petition for eviction against the petitioner with respect to the premises in question. The grounds of eviction taken by the respondent were that the petitioner has not paid the arrears of rent despite repeated requests and that the petitioner has materially impaired the value and utility of the property. Besides that, the suit property was described to be unsafe and unfit for human habitation. Of these grounds of eviction, the first ground that the arrears of rent were due does not survive and is not subject matter of controversy in the present revision petition.
3. The petition for eviction had been contested. It was denied that by any act of the petitioner the value and utility of the property had been diminished or that the same has become unsafe and unfit for human habitation. According to the petitioner, the suit premises had been taken on rent about 30 years agp. The petitioner denied that he had demolished any portion of the premises which were shown with letter ‘X’ in the site plan filed by the respondent. As per petitioner, due to rainy season some portion of the wall had given way. The petitioner had got it repaired. It was denied that any extra room had been set up. The petitioner asserted that the room was already in existence. He had simply got it repaired. The question of raising any new construction, as per petitioner's averment, did not arise. It was denied that any new chappar had been established. It was even denied that there is change of the user of the property.
4. The learned Rent Controller held that there is no change of user of the premises in question. However, it was concluded that the property in question has become unfit and unsafe for human habitation and that the petitioner's have diminished the value and utility of the property. As mentioned above, against the said order of eviction an appeal was filed. The learned Appellate Authority dismissed the appeal.
5. As mentioned above, the scope of the present petition was confined to the controversy as to if the value and utility of the property has been diminished and whether the suit property has become unfit and unsafe for human habitation.
6. A Local Commissioner had been appointed by the learned Rent Controller, Bhiwani, to visit the spot and report the precise position regarding the structure. The report of the Local Commissioner has been filed and relevant portion of it reads as under:—
“The main entrance of the demised premises was in East at point ‘O’ with iron tin gate. There is a Chhapar which has been shown in the site plan as ABCD. There were two khor for animals which are marked as ‘a’ ‘b’ at point ‘d’. There was a kachi latrine wall ‘E-F’ was in bad condition. There was a newly constructed room marked ‘G-H-I-J’ and roof of the said room was built with Girder and Wooden Kaddis and wooden Fattis. The construction work of the roof of the room was in progress. Wall ‘G-H’ was old and wall ‘I-J’ was about 6′-9″ in height was old and remaining wall was new. There was four pillars which have been marked as ‘e’ ‘f’ ‘g’ ‘h’ and were newly built upto the roof level. One Gandasa was also present in the abovesaid roof. One Atta Chakki Machine was also present shown at point ‘K’. There was a ditch shown at point ‘L’. There was a covered Veranda which is marked as M-N-O-P. There was a covered room which is marked as O-P-Q-R and at point N-P-Q-S there was open wall N-S was in a broken condition. Five buffaloes were standing in the chhapper A-B-C-D.”
7. Learned counsel for the petitioner urged that the respondent has not filed any plan or otherwise established as to what was the original construction and consequently in the absence of the same, it cannot be termed that any act of the petitioner has impaired the value and utility of the property. This particular argument in the peculiar facts of the ‘present’ case necessarily has to fail. The filing of the plan in the circumstances of a particular case may be important so as to show as to what was the nature of the premises and the condition subsequently, but when other evidence is available which establishes certain facts, then to insist on filing the plan so as to indicate what was the original construction would be improper.
8. The respondent had asserted that the petitioner had demolished the verandah and had set up a new room. In addition to that, he had set up a chhaper and dug a ditch. The report of the Local Commissioner who had visited the spot in the presence of the parties indicate that there was a newly constructed room. The roof of the said room was built with girdar and wooden kaddis and wooden fatties. At that time, the construction of the roof was in progress. Part of the wall was old and rest of the three walls were new after the height of 6 feet 9 inches. Even four new pillars had been set up which were newly built.
9. So far as the plea of the petitioner that he had only repaired the room concerned, it finds no support from the material on the record. The Local Commissioner has found in unambiguous terms that a new room is being set up. The report clearly indicates that it is not the case of repairing the old. The word repair would certainly not indicate total demolition of the old construction and setting up of a new construction. The question as to whether the value and utility of the property in question has been impaired has necessarily to be seen from the point of view of the landlord and, therefore, to urge that in the garb of repair a new construction had been set up would not be incorrect. It would fall within the mischief of ground of eviction referred to above. The findings of the learned Rent Controller and the learned Appellate Authority, therefore, requires no interference.
10. On behalf of the respondent strong reliance has been placed on the decision of the Supreme Court in the case of Shadi Singh v. Rakha,1. In the cited case, the landlord had filed a petition for eviction under the East Punjab Urban Rent Restriction Act, 1949. It was asserted that the ejectment of the tenant was required on the ground that the building was required for reconstruction because it had become unfit and unsafe for human habitation. An order of eviction was passed. In appeal, the Appellate Authority held that the tenant had already carried out the repairs and so need for ejectment no longer subsists. High Court had upset the findings of the learned Appellate Authority. It appears that the repairs had been effected after taking the permission of the Rent Controller. In paragraph 8 of the judgment, in the face of the abovesaid fact, Supreme Court held as under:—
“It is true as contended by Shri Harbans Lal that in that case there were five rooms and that the roof of one room alone had fallen and that the tenant had obtained orders of the Rent Controller under Section 12, and thereafter the tenant replaced the roof. It is sought to be contended that by unilateral act of the tenant effecting repairs, the right of the landlord for eviction under Section 13(3)(a)(iii) was frustrated and it could not be permitted to be done. Normally it would be so. A tenant is under a statutory obligation to approach the Controller and seek an order for effecting repairs provided the landlord refuses or neglects to effect repairs. After the Rent Controller passes an order, the tenant acquires right to effect repairs. In that event he is entitled to recover costs thereof from the rent payable. Under Section 108(f) of the Transfer of Property Act, even in the absence of a contract tenant has a unilateral right to effect repairs, when the landlord neglects to effect repairs within a reasonable time after notice the tenant has a right to effect the repairs and deduct the expenses with interest from the rent or otherwise recover it from the landlord. Under the Act this right is hedged with an obligation to get an order from the Rent Controller.”
11. It is abundantly clear from what has been recorded above that the facts in Shadi Lal's case (supra) were totally different. In the present case, no permission of the learned Relf Controller has been taken to replace the roof. In addition to that, as already pointed above, herein it is not merely repair but a new room has been set up.
12. In that event, reliance was further placed on the decision of the Supreme Court in the case of Om Pal v. Anand Swarup (dead by his legal representatives),2. This was a decision under the East Punjab Urban Rent Restriction Act, 1949. But the ground of eviction under the said Act is para materia with the Rent Act applicable in Haryana State. In the case of Om Pal (Supra), a parchhatti had been set up in the shop for storing clothes which was taken on rent by him for running a dry cleaning laundry. The landlord had asserted that this act has caused material impairment to the building. An order of eviction as such had been passed. Supreme Court had set aside the said finding and held as under:—
“… In order to attract Sec. 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e of a substantial and significant nature. It was pointed out in Om Parkash v. Amur Singh, (1987) (1) S.C.C 458 to 463 : 1987 (1) R.C.R 326) that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word “materially altered the accommodation” and as sucli the construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. It would, therefore, follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.”
13. Once again, the findings recorded in Om Pal's case (supra) do not come to the rescue of the petitioner. Herein, entirely a new room had been set up. It would certainly affect the building from commercial and monetary point of view. Even the expression that the value of the building has effected from commercial point of view is to be viewed from the point of view of the landlord. A tenant is not permitted to set up a palace from hut because is has to be seen how the landlord had let the property and how the value and utility of the same has been affected. Therefore, the cited decision is also distinguishable.
14. Reverting to the other ground of eviction as to whether the property in question has become unsafe and unfit for human habitation, the statement of the petitioner by itself reveals that the said ground of eviction would be established. It has been found by the learned Rent Controller as well as the Appellate Authority that there was a covered room existing at the site. One of its wall was in a broken condition. The report of the Local Commissioner further indicates that four new pillars had been set up. The roof was raised on the said pillars. It was concluded by the authorities below that the wall of the verandah was in a dilapidated condition and this cannot bear the weight of the roof. Even the roof of the verandah had fallen. The petitioner when cross-examined admitted that karris have broken and sky can be seen clearly from the room. These facts show that the property in question, indeed, is in a dilapidated condition.
15. There is another way of looking at the matter. Certain findings of fact have been arrived at by the learned Rent Controller as well as the Appellate Authority. This Court ordinarily will not interfere in the findings of fact unless they are shown to be erroneous or there is misreading of evidence. In the present case, as noticed above, the findings of fact, indeed, requires no interference. They are based on evidence and it cannot be termed that they are erroneous. In these circumstances, there is no illegality or impropriety in the order of eviction that has been passed.
16. For these reasons, the revision petition being without merit must fail and is accordingly dismissed. The petitioner is granted three months time to vacate the property.
R.M.S
Petition dismissed.