MANGAL SAIN Vs. JIWAN DASS

JUDGEMENT

(1.) 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 are 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.) 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.