allowed to lead his additional evidence to that effect, in view of the Supreme Court judgment reported in the case of Radhey Shyam Rastogi vs. Ashish Kumar and another 2008(4) RCR (Civil) 642. The Court would have had no hesitation in appointing a Local Commissioner to find out the present status of the shop. However, the same is not necessary in the facts of the present case. A Local Commissioner was appointed by the trial Court and his report is already on record as Exhibit A- 4. Besides, the report of the Local Commissioner, it is an admitted position that the wall of the Southern side of the shop, in dispute, has fallen. Due to the collapse of the wall, the portion of the roof of the shop, in dispute, has also fallen. The portion of the roof, which has fallen, is covered with polythene sheets and the falling portion is about 5' x14”. It is also admitted that the entire premise comprises of one room and one verandah. It is not a case of number of rooms or huge building, where a collapse of one of the rooms, does not mean that the entire building has become unfit for human habitation. The demised premises has no scope for the tenant to shift into another portion of the building to permit repair of the remaining part of the building. Thus, the repairs, in the present case, being fundamental in character and with no other space left to shift, the same cannot be repaired while the tenant remains in occupation. Thus, the report of the Local Commissioner being already on record and there being no doubt about the unfit and dangerous condition of the premises, there is no merit in the application under Order 41 Rule 27 CPC read with Order 26 Rule 9 C.P.C., and the same is, accordingly, dismissed.
