R.N. Aggarwal, J.
(1) This is an appeal by the tenant against the order of the Rent Control Tribunal dated May 4,1978. The relevant facts are these.
(2) The appellant is a tenant of shop No. 3 under the respondent-landlord. The shop measures about 100 sq. ft. The shop was let out in 1955. In 1969, the landlord filed a petition for eviction of the tenant on the ground that the tenant had built a loft in the shop which had substantially damaged the walls. The petition was filed under clause (j) of the proviso to Section 14(1) of the Delhi Rent Control Act.
(3) Both the parties led evidence before the Rent Controller. The landlord besides examining himself, examined AW-2 Shri Phool Ghand Goel, Chartered Civil Engineer and Architect. The tenant examined PW-2 Jagmohan Singh Architect. The Additional Rent Controller on an examination of the evidence found that the tenant had constructed the loft but it had caused no damage to the shop. (It may be noticed here that the plea taken by the tenant was that the loft was in existence when the shop was let out to him and he had not built the loft after taking the shop on rent).
(4) The landlord went in appeal and the tribunal found that the construction of the loft had caused substantial damage. The tribunal also held that the construction of the loft was in violation of bye-law No. 84 of the Municipal Corporation Act, 1967. The tribunal agreed with the finding of the Additional Kent Controller that the loft was built by the tenant in the year about 1966. Both the tribunal and the Additional Rent Controller have held that the loft was built throughout the length and breadth of the shop.
(5) Against the order of the tribunal the tenant has come in second appeal.
(6) A preliminary-objection has been taken by Mr. Bhargava, learned counsel for the respondent that the appeal is barred by time. It is contended that the ceritified copy of the order of Additional Rent Centroller was filed , in the court on 18th July 1979 and the appeal shall be deemed to have been instituted on 18th July 1979 which is hopelessly barred by time.
(7) The appeal was decided by the tribunal on May 4,1978. The tenant made an application for obtaining the certitied copy of the appellate court order on 24-5-1978 and its delivery was taken on 7-6-1978. The appeal was institutied on 1-7-1978. The certified copy of the appellate order was filed on 17-7-1978. It is not disputed that on 17th July 1978, the appeal was within time. The certified copy of the order of the trial court was filed on record on 18th July 1979. The certified copy shows that the application for obtaining the copy was made on 16th April 1979. It was ready for delivery on 17th July 1979 and the delivery of the copy was obtained the same day.
(8) Mr. R.S. Bakhshi, counsel for the appellant has produced the application which was made by the appellant to the Copying Agency for obtaining the certified copy of the order of the Additional Rent Controller. The said application shows that the application for obtaining the certified copy of the Additional Rent Controller was made on 20th June 1978 and it was returned to the applicant on 18ih September 1973 with the remarks that the file had been sent to the High Court. It is not clear what steps were taken by the appellant Between 18th September 1978 and 16th April 1979 for obtaining the certified copy of the order of Additional Rent Controller but as already stated the application for obtaining the certified copy of the order of Additional Rent Controller was made in the High Court on 16th of April 1979. The copy was obtained on 17th July 1979 and filed in the court on 18th July 1979.
(9) Along with the appeal the appellant had filed an application (CM 1351 of 1978) alleging that he had applied for certified copies of the orders of the tribunal and the Additional Rent Controller and that the filing of the certified copies be exempted. On July 3, 1968 Mr. Justice V.S. Deshpande, while admitting the appeal had allowed the G.M. 1351 of 1978 and granted exemption. After hearing the learned counsel for the parties I an inclined to hold that even if there is any delay in the filing of the. certified copy of the order of the Additional Rent Controller, the same deserves to be condoned.
(10) On the evidence both the Controller and the Tribunal came to the uniform conclusion that the loft was constructed by the tenant after the shop was taken on rent by him. This is a concurrent finding of fact and it cannot be upset in second appeal. As regards the substantial damage to the property, the Rent Controller found that the construction of the loft had caused no damage. The tribunal Came to a contrary finding. The tribunal has in para 7 of the judgment discussed the case regarding damage. Para 7 reads as under :
'NOW the next point which has to be seen is whether this construction of loft has caused any substantial damage to the premises or not.The Additional Controller has been much impressed by the construction of a false ceiling and putting up of some sun-mica dado on the walls for coming to the conclusion that there has been no damage to the shop. The counsel for the appellant has drawn my attention to Rule 84 of Manual of Building Bye-laws of Municipal Corporation 1967 4th edition which lays down that the total area of the loft shall not be more than 25 per cent of the built up area of a particular floor. So it is evident that the construction of the loft is definitely against the municipal bye-laws. It is also not difficult to imagine that this particular loft has put extra burden on the walls of the shop, the thickness of the wall being only 5' which was not disputed before me. Hence I hold that the construction of the loft in the present case has caused substantial damage to the premises and moreover the same being in violation of the municipal bye-laws definitely puts the building of the appellant in jeopardy as the municipal corporation can at any time demolish the said loft which would have the effect of substantially damaging the premises.'
The learned counsel for the appellant contended that the finding of, the tribunal that the - total area of the loft was more than 25 % of the built up area of that floor and, thereforee, the appellant has violated Rule 84 of the Municipal Bye-laws, is not correct. The counsel contended that there is no evidence that the area of the loft is more than 25%of the total built up area of that floor. The contention that by building the loft the tenant had violated the municipal bye-laws was also urged before the Controller but it was rejected on the ground that there is no evidence that the loft in question contravened bye-law No. 84. Bye-law No. 84 reads as follows :
'THE total area of loft on each floor shall not be more than 25% of the built up area of that floor'
There is no evidence to prove that the built up area of the loft is more than 25^ of the area of the floor. thereforee, the contention of the counsel for the appellant that the finding of the appellate judge that the construction of the loft is in violation of bye-law No. 84 of the building bye-laws is not correct has force.
(12) Shri Bakhshi next contended that the finding of the Tribunal that the construction of the loft has caused substantial damage is conjectural and not based on any discussion of the evidence. It is true that the learned tribunal has not discussed the evidence and has reached the conclusion that the construction of the loft has caused substantial damage on the assumption that the loft must have put extra burden on the walls of the shop.
(13) I have re-appraised the evidence and I find that there is clear and convincing evidence on the record to prove that the loft or what is known as inter-floor in the shop has caused substantial damage. The shop was inspected by Shri Phool Ghand Goel, Civil Engineer and Architect under the instructions of the landlord and he made the report, Ex., AW-2/1 The relevant portion reads as under :
'WHEN I inspected the same shop for the first time in the year 1967, the occupant had constructed a wooden Dochhatti by providing three wooden karries and covering near about half of the shop by cutting six holes in the 5' thick partition wall on the western side and in the eastern wall. The western wall which was only 5' thick was not capable of taking .the load of the then constructed wooden Doch hatti. Four feet high plywood dado was fixed throughout the shop by cutting several holes in the walls, five mirrors and marble chips shelves were fixed in the walls and one wooden box was made in the ventilator on the east side door. On my inspection on the 3rd August 1969, I noticed that the following further additions, alterations and substantial damages have been caused to the building by misuse and destroying the building pails by the occupant of the shop in question. This action on the part of the occupant has adversely affected the stability of the walls and building and has caused several cracks in the walls here and there : 1. The previous Dochhati has now been extended to the whole of the shop by cutting further four holes in the 5' thick western partition wall and eastern wall by fixing two more karris in the said holes. This addition has put a further load on the 5' partition wall and has permanently impaired and weakened the stability of this partition wall. The other wall on the eastern side has also been affected due to this addicio'nal load specially when the walls are constructed in the lime rakhi mortar :- House-hold goods, boxes, trunks and other junk was laid on the roof of the said Docchhatti placing further load on the walls in question on which the docchhatti has been constructed. 2. The occupant has fixed sun-mica and mirrors up to the ceiling level of the dochhatti in the whole of the shop except the front door opening by cutting several holes in the walls and by hammering wooden gutkas in the shop have been substantially damaged, weakened and cracked. 3. One heavy, big size cooler has been fixed on the ventilator on the east side door by cutting holes in the wall. 4. One wash basin has been fixed by cutting holes in the southern wall. 5. The wooden show-almirahs have also been fixed on the walls by cutting holes in the walls. Under the circumstances stated above I am of the firm opinion that the building in dispute has substantially been damaged by the above stated additions, alterations, fixtures and unnecessary load on the walls, cutting of holes and hammering and by misuse of the building part. These actions on the part of the occupant have adversely affected the stability of the building, weakened the same and have permanently impaired the stability of the walls and have caused several dangerous thin cracks in the walls. According to my estimate which is based on the Schedule of Rates of C.P.W.D.S. 1967 the said damages can be repaired by spending Rs. 430.00 but even after such repairs, stability of the walls which has permanently been impaired, cannot be restored.'
AW-2 in court proved his report. In cross-examination the architect stated that as far as he remembered there were 5 karries but he did not remember the size or the thickness of the karries. There is hardly any cross-examination on the report by the witness that the construction of the loft had caused substantial damage to the walls.
(14) The tenant in support of his case examined Shri Jag Mohan Singh RW-2. Shri Jag Mohan Singh deposed that after his metriculation he had passed the Architect Course from M.E.S. Delhi Gate. The witness stated that by construction of the loft no crack has occurred in the walls and the walla have not broken at any place. In cross-examination the witness stated that the loft had been constructed throughout the length and breadth of the shop and that there was a temporary stair for going to the loft and that he had gone on the parchatti (loft) and he saw beddings spread on the floor of the loft. The witness further stated that rafters had been fixed in the walls at a distance of 2 ft. from each other.
(15) AW-2 on the basis of personal inspection of the shop has in the report Ex. AW-2/1 in clear words opened that the construction of the loft has caused substantial damage to the property whereas RW-2 in his testimony has made no mention whether the construction of the loft has or has not resulted in any damage to the property. I have doubts if RW-2 in a qualified engineer and architect. I would attach more weight and credence to the report and the testimony of AW-2 than the testimony of RW-2. The tenant Raghbir Singh as RW-3 only stated that when he took the shop on rent, the parchatti was in existence and that he did not build any parchatti after taking the shop on rent. The testimony of the tenant does not throw any lighten the point under discussion.
(16) On the evidence produced on the record I am inclined to agree in the finding of the tribunal that the construction of the loft caused substantial damage to the walls.
(17) Mr. Bakhshi contended that another tenant of the respondent had similarly constructed a loft and an eviction was filed by the respondent against that tenant which was dismissed by the Rent Controller and that order was ultimately affirmed by the High Court. I sent for the record of the said case which is Sao No. 366 of 1969 (Kanhaya Lal v. Chander Bhan and others) decided by Mr. Justice Rohatgi on April 16, 1975. I find from the judgment that in the said case both the Rent Controller and the Tribunal had on the evidence produced come to the conclusion that no substantial damage had been caused to the shop and the High Court had refused to interfere with the said finding on the ground that it was a finding of fact. The said decision can be no help to the appellant.
(18) For the reasons stated I dismiss the appeal. The appellant shall demolish the loft and repair the damage within two months failing which he shall be liable to be evicted. Lest the order is mis-understood, I would clarify that the sunmica dado on the walls and other fixtures hung or fixed in the Walls............to beautify the shop can be retained.
(19) The parties are left to bear their own costs.