GYERSIA LAL Vs. FINANCIAL COMMISSIONER HARYANA AND ORS.

JUDGEMENT

(1.) On 1st September, 1973, Gyasi Lal filed an eviction petition against Sardar Singh tenant for his eviction from a shop situate in the town of Narnaul, district Mahendergarh, on the ground that the same was unfit and unsafe for human habitation as part of the building had fallen down and the remaining part was likely to fall. It was also asserted that adjoining the shop was the Government Hospital and due to which the shop becoming unsafe and unfit for human habitation it was likely to fall at any time and the Municipal Committee as also the Hospital Authorities wanted that the shop in dispute be pulled down lest some persons on the Hospital side got injured due to the falling of the same. While filing the ejectment petition, a prayer for appointment of a local Commissioner was made so that the condition of the building could be verified. The Rent Controller appointed a local commissioner. who submitted his report on 3rd September, 1973, to the effect that the building was unsafe and unfit for human habitation and was likely to fall. After the tenant was served, he opposed the ejectment petition and stated that the building was fit for human habitation. While the ejectment petition was pending, on 19th October, 1973, the tenant filed an application before the Rent Controller under Section 12 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act), praying that the building required urgent repairs. The tenant filed an affidavit also in support of his application under Section 12 of the Act and by an ex parte order dated 22nd October, 1973, the Rent Controller allowed the tenant to make repairs in the shop and the expenses of the repairs were to be borne by the tenant as he agreed to do so. Thereafter, it appears that the tenant not only carried out repairs but made extensive reconstruction and brought the building to a safe condition while the ejectment petition was pending, During the pendency of the ejectment petition, the Rent Controller visited the demised premises on 1st March, 1975 and came to the conclusion that at that time the building was not unsafe and unfit for human habitation.

(2.) After evidence was led by both the parties in the ejectment petition, at the time of arguments the point arose whether the nature of the building at the time of the filing of the petition was to be seen or the supervening facts could be taken notice of and the state of the building at the time of passing or the order had to be seen. The Rent Controller, by order dated 24th March, 1975, came to the conclusion that the condition of the building at the time of filing of the ejectment petition had to be seen and in coming to this conclusion, he relied upon a Division Bench judgment of this court in Sh. Piara Lal Kapur v. Smt. Kaushalya Devi and another,1970 PunLR 411, and an unreported single Bench decision of this Court in C.R. No. 247 of 1962 Gian Devi v. Nathu Ram decided by Mahajan, J., on 9th May, 1963 and distinguished the Supreme Court decision in Maharaj Jagat Bahadur Singh v. Badri Parshad Seth, 1963 65 PunLR 452. On the basis of the evidence on the record, the Rent Controller came to the conclusion that the building was unsafe and unfit for human habitation on the date of filing of the ejectment petition and ordered the ejectment of the tenant. The tenant took the matter in appeal before the appellate Authority, who agreed with the conclusion of law and fact arrived at by the Rent Controller and dismissed the appeal of the tenant by order dated 27th October, 1975. The tenant took the matter in revision before the Financial Commissioner, Haryana. The learned Financial Commissioner on the basis of the Supreme Court decision in Maharaj Jagat Babadur Singh's case , came to the conclusion that the Court has to see the condition of the building at the time of the passing of the ejectment order and not merely at the time of the filing of the ejectment petition and since the building was in a fit condition at the time of passing of the order by the Rent Controller the ejectment order passed by the authorities below could not be sustained. By order dated 4th February, 1976, the revision of the tenant was allowed and the order of ejectment passed by the Authorities below was set aside. The landlord, feeling dissatisfied with the order of the Financial Commissioner, filed the present petition under Article 227 of the Constitution of India in this Court.

(3.) Notice of the petition was issued to the respondent-tenant and inspite of service appearance was not put in this court either personally or through counsel. Again actual date notice was issued to the tenant and inspite of service. no appearance has been put in. Accordingly, I proceed to decide this petition ex parte.