M.L Singhal, J. — Rama Nand-petitioner/landlord filed ejectment application under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter to be referred as “the Act”) against late Jiwan Dass-now represented by his LRs/heirs Rattan Lal etc. whereby he sought his eviction from shop shown by letters “ABCD” in red in the plan Ex.A-1 attached thereto, situated in Sadar Bazar, Gurgaon Cantt on the ground that he is in arrears of rent. It is fairly old construction. The roofs of all the “4 khans” of the shop shown encircled in the plan had fallen down and the remaining part of the roofs are in a state of collapse. Plaster of the walls has mostly fallen and has lost its adhesive strength. There ace heavy cracks in the intervening walls of the rooms. The whole of the building is in dilapidated condition and has become most unhygenic and dangerous. The shop has out-lived its utility and requires reconstruction. The building has become most unsafe and unfit for human habitation. After getting the vacant possession of the shop, he will re-construct it. For re-constructing the shop he has got adequate funds with him. When Jiwan Dass took the said shop on rent, the shop consisted of 4 khans alongwith a common stair and a verandah in front of the rooms. He has converted the verandah into a room in the shop. He has thus effected structural alterations which have impaired the value and utility of the premises. Due to the neglect and careless use of the shop, the roofs of the 4 khans have fallen. Jiwan Dass took no steps to keep the shop in proper condition. He has committed and caused to be committed such acts as have impaired the value and utility of the building of the shop. This eviction application was filed in 1978.

2. Jiwan Dass contested this petition. It was urged that this application is not maintainable in view of the provisions of Section 14 of the Act as previous application for eviction was dismissed by the Rent Controller on 8.8.1973 The shop is old, made of stones and its condition is the same as it was, when it was taken on rent except that some repairs are needed, for which application has already been made. It was denied that there are heavy cracks in the intervening walls of the rooms. It was denied that the whole of the building of the shop is in dilapidated condition. It was denied that the building of the shop has become unhygenic and dangerous. It was denied that the building of the shop has out-lived its utility/life or that it requires re-construction. It was denied that the shop has become unsafe and unfit for human habitation. The building of the shop is quite habitable. There was no verandah in front of the shop. It was a vacant space and on the vacant space, he constructed the portion with the permission, consent and connivance of the predecessor-in-interesst of Rama Nand and Rama Nand at his own expense as is mentioned in the rent deed executed by him in favour of Rama Nand. Rama Nand cannot take up any such objection. He is estopped from doing so by his acts and conduct and the acts and conduct of his predecessor-in-interest. Even otherwise, the construction was raised by him more than 20 years ago. Such objection was raised in the previous eviction petition by the petitioner, which did not weigh with the Rent Controller. The finding is binding and final between the parties. It was denied that he has committed and caused to be committed acts as have impaired materially the value and utility of the shop.

3. On the pleadings of the parties, the following issues were framed :

1. Whether the respondent is liable to eviction on the ground mention in para No. 5 of the petition except that of non-payment of rent? OPP

2. Whether the petitioner served a valid notice on the respondent before filing the present petition, if not to (its?) effect? OPP

3. Whether the present petition is not maintainable in the present form as alleged in preliminary objection No. 3 of the written statement? OPR

4. Whether the application moved by the petitioner is not in accordance with law? OPR

5. Relief.

4. Learned Rent Controller allowed this eviction application vide order dated 24.11.1980 in view of her finding that the building of the shop has become unsafe and unfit for human habitation and that it does not admit of any repairs. It was found that this eviction application was not barred by the provisions of Section 14 of the Act because the previous eviction application was dismissed not on merit but simply as withdrawn.

5. Aggrieved by this order, tenant went in appeal, which was allowed by the learned Appellate Authority, Gurgaon vide order dated 10.9.1983 It was found that it was an ancient building and even at the time when the tenancy commenced in April, 1952, the roof of the shop and walls were in weak condition and after sometime the tenant set up a khokha on the chabutra of the shop and thereafter made unauthorised pacca construction. In the previous eviction application filed by the landlord, he had admitted that the building was in a dilapidated condition at the time of inception of tenancy, meaning thereby, that could be ordered to be evicted only if the building had become unfit and unsafe for human habitation during the continuance of tenancy.

6. Aggrieved by the order of the Appellate Authority, Mangal Sain etc. Lrs/heirs of late Rama Nand have come up in revision to this Court.

7. I have heard the learned counsel for the parties and gone through the record.

8. The onus to prove that the building of the shop had become unsafe and unfit for human habitation lay upon the landlord-late Rama Nand, represented now by his LRs Mangal Sain, etc.-petitioners. The building of the shop was let out vide rent note Ex.R-1 dated 10.4.1952 In the rent note, it is no where recorded that the building is in dilapidated condition. It is no where on the record that none of the four khans of the shops was being used and work was being done in the tin shed which is in front of 4 khans of the shop. In the rent note Ex.R-1, it is no where recorded that all the 4 khans of the demised building were in dilapidated condition.

9. It was submitted by the learned counsel for the petitioners that the building of the shop became unfit and unsafe for human habitation after the creation of tenancy and tenant is carrying on business in the on shed where he sits and carries on the business. Sat Narain Verma-draftsman who prepared site plan Ex. A-1 stated that he has mentioned the condition of the building of the shop in site plan Ex.A-1. He went to the spot on 28.5.1976 There are karis in the four khans of the shop in dispute. These karis did not appear from the above as these were lying down. The patches shown in Ex.A-1 in the 4 khans show the fall of the roof and there are holes in the roof. There were cracks in the walls. Ram Bilas-Chief Engineer (Retd.) AW-2 stated that he is qualified Civil Engineer and served PWD Haryana, Punjab as Assistant Engineer, Executive Engineer, Superintending Engineer and finally retired as Chief Engineer in 1971. He had been incharge of Government buildings during his service. He inspected this shop and prepared report Ex.A-2 at the spot in which the condition of the shop is depicted. The building is in advanced stage of disintegration and is not safe and fit for human habitation. According to him, the roof of Khan No. 4 had completely fallen down. There were three holes in the roof of khan No. 3. So far as Khan Nos. 1 and 2 are concerned, their roofs had fallen to the extent of 60 to 70%. There were cracks in the intervening walls of the khans and they were not capable of being repaired. He stated that the shop requires pulling down and reconstruction. As he was afraid of falling, he did not measure the extent of the fallen roofs. From the roof, he observed the condition of intervening wall of the khans and the karis and the walls. He did not measure the height of the walls. The age of the building constructed with stones and bricks in cement mortar is about 80 to 90 years. In lime mortar, it is about 50 to 60 years while in mud mortar, it is about 30 years. This building is constructed in lime mortar. The roofs were also not cemented. He has pointed out cracks intervening walls of khan by word “C” in the wall CDEF. He did not measure the length of cracks but they were wide enough to look serious and cannot be repaired. He has mentioned in his report that the cracks are serious. Madan Lal AW-4 also stated that the roof of first khan had fallen to the extent of 90% while the roof of 4th khan had fallen altogether. About the other two khans, he stated that there were big holes in the roofs of the khans. Plaster of the walls has lost its adhesive strength. The floor of the khans are in a broken condition and there is no plaster thereon. He stated that the shop is unsafe for business purposes and for residential purposes. Bhagti Saran Singh, Sub Divisional Engineer (Retd.) RW-3 also admitted that the roofs of first and second khans had fallen to the extent to 80 to 90% while the roof of the 4th khan had fallen to the extent of 40 to 50% and there are big holes in the roof of the 3rd khan. He has slated that whatever battens are available in the roofs, they have out lived their life. The plaster was missing from the walls. Kesar Dass RW-4 stated in his cross-examination that none of the four khans is capable of being used at present.

10. Learned counsel for the petitioners submitted that the shop is unfit and unsafe for human habitation. All the 4 khans of the shop are in extremely bad shape and are in dilapidated condition. The roof of the 1st khan of the shop has almost fallen. The roof of the 2nd khan is about to fall and is having 4/5 holes. 80% of the roof of the 3rd Khan has fallen. The remaining part of the roof of the 3rd khan is also about to fall. The condition of the roof of 4th khan is also like the roof of 3rd khan. There is cemented floor in the tin shed. The floors of the two khans are intact up to 50% area and the remaining part of the floor of these two khans are kacha as the bricks do not exist on that portion. The malba is lying in the last khan. Banwari Lal AW-5 touched the plaster of the shop and the same was found to have been reduced to dust while in between the roofs and the doors of 2nd and 3rd khans have broken. Support of a pillar has been given at portion shown by letter marked “A” in the site plan Ex.A-1 so that sardal did not fall down. The condition of the shop is dilapidated and most of the bricks and stones have already come out of the walls.

11. Sh. Jai Narain Yadav, Advocate, who was appointed Local Commissioner stated that about one feet high malba of the roof was lying in the last khan and major portion of the roof of the 4th khan had fallen down. Effects of the shop were not lying in any of the shops. He inspected the shop on the day when it was raining. Rain water was falling inside the khans on account of major portions of the roofs having fallen down. About flooring also, he stated that the same was missing from third khan while in the fourth khan 50% portion was without flooring.

12. Respondent-Jiwan Dass stated that he had earlier been working in all the 4 khans but stopped using them for the last 7/8 years. This shows that the building has worsened. He stated that the condition of the shop has not deteriorated after the inception of the tenancy and the shop continues to be in the same condition as it was, when he tenanted it in the year, 1952. Since the inception of tenancy, the same is in dilapidated condition. Its roofs are broken at many places since the inception of tenancy but the condition of the walls is good. One of the wall is common with Nand Kishore-neighbour. On the common wall, a double storeyed building of Nand Kishore is lying erected. The stones, bricks and lime of the walls are in good condition. The walls are strong. He has been working in the tin shed since beginning. He started the business of sale of books under the name and style “Pustak Bhandar” in this shop. He used to use all the 4 khans then. He used to keep books in 3 khans. Since the year, 1968-1969, he stopped the business of the sale of books.

13. Learned counsel for the petitioners submitted that the shop became unfit and unsafe for human habitation after the inception of the tenancy, Jiwan Dass had been working in all the 4 khans earlier. He stopped using the khans since the year, 1968-1969 obviously because the condition of the shop had worsened.

14. Learned counsel for the respondent submitted that the shop was not in good condition when the tenancy commenced. Respondent was carrying on the business of sale of books in the name “Pustak Bhandar” in this shop and its condition did not deteriorate during the continuance of tenancy. Learned counsel for the respondent submitted that the shop was in bad condition since the inception of tenancy and he is not liable for ejectment if it did not deteriorate further. In the year, 1955, the landlord had sought his ejectment on the ground of nonpayment of rent, the landlord intending to repair and re-erect the building and the premises having been sub-let by the tenant. That petition moved by the landlord was dismissed by the Rent Controller on 1.11.1955 vide order Ex.R-2. Thereafter, landlord filed civil suit in the month of January, 1956 against him for his ejectment saying that in the month of June, 1955, he (tenant) had removed the temporary tin shed and erected permanent structure in its place and the shop being in dilapidated condition required reconstruction. It was also stated that the suit was not hit by the provisions of the East Punjab Urban Rent Restriction Act, 1949 because the front portion of the shop was constructed in the year, 1956. The landlord's suit was dismissed as the building was found not to have been constructed in the year, 1956. Landlord's appeal to the Senior Sub Judge, with enhanced appellate power also fai led. His second appeal to this Court also failed. In the year, 1972, landlord filed ejectment application for his ejectment under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, in which it was pleaded that the tenant was liable to be ejected as the building was unfit and unsafe for human habitation. On 8.8.1973, that ejectment petition was dismissed as withdrawn.

15. There is no gain-saying that this building is unsafe and unfit for human habitation. Question to be seen is whether this building became unfit and unsafe for human habitation during the continuance of tenancy or it was unfit and unsafe forhuman habitation at the commencement of the tenancy and there was no further deterioration in its condition after the commencement of tenancy.

16. In Lekh Raj v. Muni Lal and others, 2001 (1) RCR (Rent) 168 (SC) : 2001 Haryana Rent Reporter 150, the Hon'ble Supreme Court held that subsequent events can be taken note of where the landlord asked for ejectment of the tenant on the ground that the demised building had become unfit and unsafe for human habitation and the case remained pending for 18 years. As to whether the building has become unfit and unsafe forhuman habitation during this period of 18 years, can also be taken into account.

17. In Lekh Raj's case (supra) it was also held that for determination of the question of unfitness of a building, length of crack in a wall is not material, but depth and length of crack must be proved. If the cracks have weakened the wall, it is not necessary to prove that such cracks should be visible on the other side of the wall.

18. It was held in Kusum Kumar… v. Smt. Parkash Wati…., 1999 (2) RCR (Rent) 605 (P&H) : 1999 HRR 564 that, “the condition of the demised building is unfit and unsafe and for human habitation because as per report of the Local Commissioner, roofs of 2 of 3 khans of the shop had already fallen and the roof of the third room was likely to fall. To say that replacement of roof comes under the heading of repairs does not help the tenant as whole building was in dilapidated condition.”

19. In Rattan Lal v. Bihari Lal and another, 1999 (2) RCR (Rent) 125 (P&H) : 1999 HRR 360, it was held that where karris had broken and sky was visible through the roof, the building had to be held as unfit and unsafe for human habitation.

20. In Rakha v. Shadi Singh, 1981 (1) RCR 106, it was held that the landlord has a right to apply to the Rent Controller if during the continuance of tenancy, without any fault on the part of the landlord, the building becomes unsafe or unfit for human habitation for the eviction of the tenant. The words “has become” are suggestive that as and when the building becomes unsafe or unfit, the landlord gets the right to apply for ejectment of his tenant. If during the pendency of the petition, the tenant of his own without any order of the Rent Controller, does some repairs etc as to make it fit for human habitation, he cannot be allowed to urge that now the building is not unsafe or unfit for human habitation.

21. If the building was unfit and unsafe for human habitation in the year 1952 and no repairs were carried out to it afterwards, it would be natural to say that after the year 1952, it deteriorated in its condition and it become more unfit and unsafe for human habitation. We are in the year 2002 now.

22. The building of the shop was let out in 1952 which was not fit for human habitation. It is un-imaginable that it would not be unfit and unsafe for human habitation now in 2002.

23. Learned counsel for the respondent submitted that since the ejectment application filed earlier by the landlord against him was withdrawn without permission to institute another ejectment petition, this ejectment petition was barred by the provisions of Order 23, Rule 1(4) Civil Procedure Code. In support of this submission, he drew my attention to Mehtab Singh v. Tilak Raj Arora and another, AIR 1989 Punjab and Haryana 12 where it was held that a second petition for the ejectment of the tenant on a ground on which an earlier petition was got dismissed as withdrawn without liberty to file a fresh petition, fresh petition would be barred and not maintainable. Similar view was taken in Ram Sarup Bhulla v. Barkut Singh, 1990 (2) RCR 392.

24. Suffice it to say, the previous ejectment application was not decided on merit and therefore this ejectment petition will not be barred. There was no adjudication on the landlord's contention that the building of the shop was unfit and unsafe for human habitation in the earlier ejectment proceedings. Previous ejectment application was withdrawn by the landlord as according to him, the same was suffering from formal defect. If the Rent Controller allowed him to withdraw that application on the ground that it was suffering from some formal defect, the grant of liberty to file fresh application on the same cause of action has to be inferred.

25. Learned counsel for the respondent submitted that the respondent is carrying on business in the tin shed which is perfectly habitable.

26. Suffice it to say, if part of the building is unsafe and unfit for human habitation while part of the building is safe and fit for human habitation, tenant has to be thrown out of entire building. Tenancy is one and indivisible. On this analogy, ejectment must proceed from whole of the tenanted premises.

27. For the reasons given above, this revision is allowed and the order of the learned Appellate Authority, Gurgaon is set aside while that of the learned Rent Controller, Gurgaon is restored and the tenant is ordered to be evicted from the shop marked “ABCD” in red in the plan attached to the ejectment application. Tenant is, however, allowed three months time to vacate it and put the landlord in vacant possession thereof. No order as to costs.

Revision allowed.