Punjab-Haryana High Court
Kewal Krishan @ Kala vs Smt. Bhagwanti on 17 March, 1992
Equivalent citations: (1992)101PLR565
ORDER S.S. Grewal, J.
1. This revision petition is directed against the order of the Appellate Authority Karnal, dated 18th November, 1991 whereby the order of Rent Controller dated 23rd of May, 1990 was set aside and eviction of Kewal Krishan (hereinafter referred to as the tenant) from the demised premises was ordered under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the Act).
2. Smt. Bhagwanti (hereinafter referred to as the landlady) too has filed revision petition No. 338 of 1992 challenging the concurrent finding of the Courts below that the rate of demised premises from the inception of the tenancy was Rs. 60/- per month. As common questions of law and fact are involved and both these revision petition arise out of the same orders passed in the same proceedings by the Courts below, both these petitions shall be disposed of by one judgment.
3. In brief facts relevant for the disposal of this petition, are that according to the averments made in the application for ejectment moved by the landlady the tenant is in occupation of the demised premises, in north-eastern corner of residential house shown in red colour in the plan attached with the ejectment application on monthly rent of Rs. 150/- under her. The eviction of the tenant was sought, firstly, on the ground of non-payment of arrears of rent for the period August, 1984 to February, 1986, secondly, on the ground that the demised premises were required by the landlady for her personal use and occupation and that of her other family members consisting of two married sons, their families, one unmarried daughter, and, one, unmarried son, all of whom, are, living together in the same house, and, the accommodation already with the landlady was insufficient for her and other family members; thirdly, on the ground that the demised premises had become unfit for human habitation. The landlady wants to replace the roof with lintle as the old roof consisting of wooden beams was likely to fall at any time.
4. The tenant in his written reply took up preliminary Objections that the petition was filed with mala fide motive to pressurise the tenant to agree to excessive increase of rent. On merits the tenancy in the demised premises was admitted. It was denied that the rate of rent was Rs. 150/- per month. Rather it was pleaded that the rate of rent in fact was Rs. 60/- per month and the landlady wrongly claimed and alleged that the rent was Rs. 150/- per month. On the first date of hearing arrears of rent at the rate of Rs. 150/- per month for the period August, 1984 to February, 1986 amounting to Rs. 2,850/- along with interest and costs, as assessed by the Rent Controller were tendered, and, ground of non-payment of rent was given up by the landlady. The tenant, however, pleaded that he was entitled to recover excess payment made by him. Regarding the ground of personal necessity it was pleaded that no such ground exists as the demised premises are part of commercial building which has been constructed for non-residential purpose and is being used as such, since the inception of the tenancy. It was also pleaded that the demised premises being a shop, no ground of personal necessity to eject the tenant was available to the landlady. It was also denied that the demised premises were unfit for human habitation and that there was no need to replace the roof which was pucca one and the same was not likely to fall. The other averments made in the ejectment application were denied. The landlady in her replication denied the averments made in the written statement and reiterated those made in the petition.
5. From the pleadings of the parties, the following issues were framed:-
1. Whether the respondent is liable to be evicted from the demised premises as alleged? O.P.P.
2. What is the rate of rent of the premises in question O. P. Parties.
3. Relief.
The Rent Controller decided both issues No. 1 and 2 in favour of, the tenant, whereas, the Appellate Authority reversed the finding of the Rent Controller on issue No. 1 and held that the demised premises were residential and the tenant was entitled to be evicted there from as the same were bona fide required by the landlady for her personal use and occupation and that of her other family members.
6. The learned counsel for the parties were heard.
7. The main question which arises for determination in the instant case is as to whether the demised premises form part of the residential building or that the same are non-residential and are not an integral part of the main residential building. It was submitted on behalf of the tenant that the demised premises have been described as a shop attached with the house and as a part of the residendential building by the landlady in the notice Ex. D. 6 sent through her counsel to the tenant under Section 106 of the Transfer of Property Act. It was further submitted that the premises in possession of the tenant along with two other shops are situated in front portion of the residential house. All the three shops open towords the main Bazar and there was no window or ventilator in the said shops. Nor any kitchen or bath-room is attached with the demised premises ; that the shop in dispute is separate from the remaining portion of the building and has been used as a shop since the very inception of the tenancy in the year 1973 and that the residential portion of the building situated on the back side was constructed later on in the year 1974-75.
8. The correctness of plan Ex. P. 5 showing the main building as well as the demised premises was not denied in the written statement filed by the tenant. Nor correctness of the said plan has been disputed at any stage so far Its correctness thus would be deemed to have been admitted by the tenant. The demised premises are in the. front portion of the building on the north-eastern side which opens in the street and then comes another room used as a ration depot by the son of the landlady. Prior to that it has been occupied as a shop by Sada Singh. Them comes the entrance for the back portion of the house Next to the gallery/entrance is the kitchen, and, the last room in the front row is used by the son of the landlady as a Karyana shop. The back portion consists of two more rooms, one store and a court-yard. The entire back portion of the ground floor as welt as the first floor cosisting of two big rooms are used by the landlady for her own residence and that of her other family members which include two married sons, their families, one unmarried daughter and one unmarried son.
9. It was next submitted on behalf of the tenant that even in the general power of attorney Ex. P. 4 executed by the landlady in favour of her son Nand Kishore, it is mentioned that the demised premises being used as a shop, were let out to Kewal Krishan, and these circumstances coupled with the fact that the landlady has not produced any documentary evidence that the building was constructed for residential purpose, support the testimony of the tenant who appeared as R.W. 8 and that of Nand Lal R.W. 9 and Kimti Lal R.W. 10 to the effect that the demised premises have been used as a shop from the very inception of tenancy, and that the same constitute a part of the non-residential building.
10. Testimony of Ram Niwas clerk from the office of Tehsildar Sales shows that the house in question which was described as a mud house was allotted to Paras Ram husband of Bhagwanti on 22 5 1953 by the Rehabilitation department, the aforesaid house and the other mud houses in the colony had been constructed for providing private residence to the refugees who had come from Pakistan and not for any commercial purpose. Nand Lal R.W. 9 admitted that he works in shop situated m front of the premises m dispute and that his shop forms part of residential house of Sat Pal Ahuja. There is no specific pleading by either side that the front portion of the building in which the demised premises are situated, was constructed firs of all as a commercial building, or, that the back portion was constructed subsequently as a residential building. As such any evidence which traverses beyond pleadings cannot be legally looked into border 5o prove that the building ,n which the demised premises is situated was constructed first or, that the back portion of the building was constructed later on for residential purpose. Apart from that neither side has proved on the record any plan approved by the competent authority which would indicate that the building in which the premises in dispute are situated was constructed for commercial or non-residential purpose alone. Rather, Kewal Krishan tenant himself admitted that the number of the entire building in which the shop in dispute is situated as well as the building in which the landlady or her other family members reside is 26/1 and the same is a double storey building He also admitted that the door of the kitchen does not open on the road side, but the same is towards the residential portion of the building. No other reliable evidence has been led to prove that initially the front portion of the house No 26/1 including the premises in dispute were constructed for commercial or non-residential purpose or thereafter the remaining portion of the building for residential purpose was constructed.
11. It is pertinent to mention here that mud house was already in existence since 1953. According to Nand Lal R.W 9 at the later stage the same was renovated and not reconstructed Mere fact that the front portion was renovated first or that the back portion w renovated later on in the absence of other legal, cogent or liable evidence would not be sufficient to hold that the entire mud house had been demolished or in its place two separate buildings namely residential in front and non-residential building in the rear portion had been constructed later on. Mere fact that there is no entry from the demised premises or from the rooms used by son of the landlady for running a ration Depot and Karyana shop in order to approach rear portion of this building, or, there are separate entries in order to approach the remaining portion of the residential building, would not necessarily lead to the inference in the present case that the demised premises constitute, or, form integral part of a non-residential building. Rather from the facts and circumstances of the present case, it is quite apparent that the building in which the demised premises are situated is an old building which was initially constructed as a mud house in the year 1953, and, some improvements by way of renovation were made later on. The same cannot by any stretch of imagination be dubbed as a non-residential building merely because two other room, had been used for ration Depot and Karyana shop by the sons of the landlady. It is significant to note that the rooms used by the landlady for commercial purpose are without any shutters and have only ordinary doors.
12. Since the demised premises form integral part of residential building, the same were let out as a shop to the tenant without obtaining permission of the Rent Controller concerning the change of user as contemplated under Section 11 of the Act, it would be permissible for the landlady to seek eviction of the tenant on the ground of personal necessity. I find support in my view from Full Bench authority of this Court in Hari Mittal v. B. M. Sikka, (1986-1) 89 P.L.R. 1, wherein it was held that a residential building let out for non-residential purpose by the landlord without obtaining the written permission of the Rent Controller in terms of Section 11 of the Act would continue to be a residential building, and, the landlord would be entitled to seek ejectment of the tenant on the ground of his bona fide requirement.
13. Reliance was placed by the learned counsel for the tenant on a Single Bench authority of this Court in Lal Chand v. Bal Kishan, (1987-2) 92 P.L.R. 222, wherein it was held that it is an admitted fact on the record that the premises in dispute are two shops on the ground floor of a larger building, the major part of which is no doubt residential in character, but at the same time it cannot be disputed that the shops in dispute which have been let out to the petitioner are non-residential in character. Clause (a) of Section 2, inter alia, defines 'building or part of a building let out for any purpose whether being used for that purpose or not.' Thus, these two shops are a building falling within the scope of the aforesaid definition. Merely because these two shops in the form of building are integral part of the larger building as known in the common parlance, the predominant part of which is residential in character, it is difficult to hold that these shops are a residential building and not a non-residential one. The shops have admittedly been let out to the petitioner solely for running his business. Therefore, these shops are to be treated as non-residential building within the meaning of Clause (d) of section 2 of the Act. While letting out shops for solely the purposes of business, it was not necessary to secure the written permission of the Rent Controller under Section 11 of the Act. Such a permission is required only where a residential building is sought to be converted into a non-residential building."
14. The view taken in the aforecited authority in Lal Chand's case runs counter to the Division Bench of this Court in Sardarni Sampuran Kaur and Anr. v. Sant Singh and Anr., A.I.R. 1982 Punj. & Hary. 245, wherein it was observed as under:-
"The definition of the word 'building' in section 2 of the Act is not in terms absolute but is subject to contextual limitations. The very opening part of the said section makes it explicit that the definition is to apply only if there is nothing repugnant in the subject or the context. Consequently, the use of the word building in section 13(3) (a) (iii) has to be viewed in its particular textual context and not with any inflexible absoluteness of the literal terms of clause (a) of section 2 of the Act. Therefore, it would be possible to construe the word 'building' as used in section 13(3) (a) (iii) of the Act to include the integrated larger building as a whole, rather than the part thereof demised to a particular tenant alone."
The aforesaid View was followed in Single Bench authority of this Court in Sujan Singh v. Shobha Nath, Chela Balak Nath, Chela Brahm Nath, (1982) 84 P.L.R. 615.
15. It seems that the aforecited Division Bench authority in Sardarni Sampuran Kaur's case was not brought to the notice of the learned Single Judge in Lal Chattel's case (supra). The view taken by the Division Bench in Sardami Sampuran Kaur's case (supra) has to be preferred on this point to the view expressed in Lal Chand's case (supra) by the learned Single Judge. From the facts of Lal Chand's case (supra) it is not clear as to whether the shops in question formed integral part of the residential building at the time when the said building had been completed, or, tenancy with regard to the said shops was created at a subsequent point of time. In the case in hand, there is a specific pleading that the entire building had been constructed solely for residential purpose in the year 1953 and later on only one room i.e. very small portion of the front side of the building was let out in the year 1973 or thereabout. The aforecited authority in Lal Chand's case is not applicable to the facts of the case in hand and is clearly distinguishable.
16. The learned counsel for the tenant relied upon the authority in Dr. Jagjit Singh Mehta v. Dev Brat Sharma, (1988-1) 93 P.L.R. 154, in which the authority in Lal Chand s case (supra) had been followed. The aforecited authority in Dr. Jagjit Mehta's case, relates to a case where portion of the residential building had been converted into shops by making structural changes a d steel rolling shutters were provided, and, those shops had been let. out separately and independently solely for the purpose of business, or, trade. In view of these facts, it was held that these would come within the definition of non-residential building being part of a building let out for the said purpose falling within the meaning of Section 2(d) read with Section 2(a) of the Act. The facts of the case in hand are entirely different, wherein out of the three shops only one had been let out, whereas the remaining two are in occupation of the son, of the landlady. Besides there is no evidence that any structural change was made in any of shops, or, regular shutters were provided.
17. Reliance has further been placed by the learned counsel for the tenant on the Single, Bench authority of this Court in Gurbax Singh v. Kuldip Singh, (1990-1) 97 P.L.R. 704, which merely relates to a building which was constructed solely for non-residential purpose and was let out for non-residential purpose.
18. The aforecited two authorities in Dr. Jagjit Singh Mehta's case and Gurbax Singh's case (supra) cannot be followed in view of the ratio of Division Bench authority in Sardami Sampuran Kaur's case referred to above. These two authorities are also not applicable as the facts in these two authorities were entirely different from those, in the case in hand.
19. As regards the two shops in occupation of the son of the landlady, Section 11 of the Act would not apply to any property which is not occupied by the tenant and the owner of such property can reasonably use that property in the manner he likes, and, he can use it even for non-residential purpose and still it is not competent for the Rent Controller not to order eviction of the tenant from a part of the same building on the ground of personal necessity, as the law does not require that the landlord should render his or her son or daughter jobless first and then seek eviction of a tenant from his building on the ground of bona fide personal necessity. I find support in my view from Single Bench authority of this Court in Brij Lal Puri and Ors. v. Muni Tandon and Urmila, (1979) 81 P.L.R. 621.
20. There is abundant evidence on the record that the landlady has large family consisting of two married sons and their families, one unmarried daughter and one unmarried son and that she bona fide requires the demised premises for her personal use and occupation and that of her aforesaid family members. It is settled law that the landlord or landlady concerned is the sole and best judge to decide about the bona fide requirement for their personal necessity. In view of the large family the accommodation already in their possession is not sufficient for her own use and occupation and those of her other family members. As such the landlady has been able to prove affirmatively that she bona fide required the demised premises for her own use and occupation and that of her other family members. Mere fact that in notice Exhibit P-6 sent under Section 106 of the Transfer of Property Act, it was mentioned that the premises are bona fide required for business of her son would hardly be of any consequence. For this purpose all the genuine needs of the landlady have to be taken into consideration.
21. No rent note or rent deed has been produced in this case and the question about rate of rent of the premises in dispute has been decided mainly on the basis of other relevant evidence on the record. Nand Kishore P.W. did state that the rate of rent in respect of the demised premises earlier on was Rs. 100/- and later on it was increased to Rs. 150/- per month, whereas, the tenant while appearing as R.W.-8 deposed that the monthly rent regarding the said premises was Rs. 60/- from the very inception of the tenancy. His testimony find ample corroboration from the entries in the Assessment register of the Municipal Committee, Karnal for the year 1985-86 wherein the rate of rent in respect of the shop in question is mentioned as Rs 60/- per month. Both the Courts below have rightly believed the testimony of Kewal Krishan tenant on this point, as the same finds independent corroboration from the documentary evidence referred to above.
22. For the foregoing reasons, the impugned order of ejectment of the tenant passed by the Appellate Authority in favour of the landlady cannot be said to be illegal. Nor the same suffers from material irregularity or lack of exercise of jurisdiction vested in the Appellate Authority. This revision petition as well as C.R. No. 338 of 1992 are without any merit and the same are hereby dismissed, with no order as to costs. The tenant is, however, granted two months time to hand over the vacant possession of the demised premises to the landlady failing which she would be entitled to execute the order of eviction passed in her favour by the Appellate Authority.