Punjab-Haryana High Court
Harjit Singh vs Daya Ram Sat Narain on 11 December, 2002
Equivalent citations: (2003)133PLR579
JUDGMENT M.M. Kumar, J.
1. This judgment would dispose of three civil revision petitions namely Civil Revision Nos. 1445, 1561 and 1810 of 1993 as the common question of law and facts have been raised by the landlord petitioner against the defendant-tenants who has sought their ejectment claiming to be a specified landlord under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for brevity the Act). For the sake of convenience, the facts are being taken from C.R. No. 1445 of 1993. The Rent Controller in his order dated 15.12.1992 has repelled the claim of the landlord-petitioner by dismissing his application in which prayer was made for eviction of the tenant respondent. Feeling aggrieved by the order dated 15.12.1992 dismissing his application, the landlord petitioner has filed the present petitions by invoking the provisions of Section 18A of the Act.
2. The findings which have attained finality against the tenant-respondent and have not been challenged before this Court may first be noticed, The Rent Controller has held that he landlord-petitioner is a specified landlord within the meaning of Section 2 (hh) of the Act as he is entitled to receive the rent in respect of the building on his own account and that the petitioner had retired as Chief Engineer w.e.f. 30.11.1990 from ME-CON (India) Ltd. Ranch! which is a Government of India undertaking in the Ministry of Iron and Steel. The Rent Controller on the strength of Ex.A.3 has further held that the whole shares of the MECON India Ltd. are subscribed by the President of India and for all Intents and purposes it was a Central Government enterprise. Therefore, it is safe to conclude that the landlord petitioner held an appointment in public service or a post in connection with the affairs with the Union of India which would bring him within the four corners of Section 2(hh) of the Act which reads as under:
"2(hh) "Specified landlord" means a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State."
3. This question came up for consideration before the Supreme Court in the case of Ram Gopal Sharma v. Sukhdev Raj Rudra, (2001)9 S.C.C, 201 where an employee of the Life Insurance Corporation of India was held to be a public servant and therefore a specified landlord under Section 2(hh) read with Section 13 A of the Act. It has further been held that the application under Section 13 A of the Act for eviction of the tenant was maintainable by a co-owner/landlord. Even otherwise there is no challenge raised by the tenant respondent to the findings recorded by the Rent Controller on this aspect. The Rent Controller has also held that the application has been filed by the land lord-petitioner within the specified period mentioned in Section 13 A of the Act. The landlord-petitioner had retired on 30.11.1990 and the application was filed on 31.5.1991 which is within a period of one year after his retirement as specified by Section 13 A of the Act.
4. Another finding which has not been assailed by the tenant-respondent before this Court as recorded by the Rent Controller is regarding the competence or locus-standi of the landlord-petitioner to file eviction application. The Rent Controller has held that the landlord-petitioner being one of the co-landlord was entitled to sue under Section 13-A of the Act in his capacity as a specified landlord for his personal necessity and he was also entitled to recover rent of the building on his own behalf as he was owner of every nook and corner of the house. The Rent Controller also held that the Will propounded by the landlord-petitioner was not contested. Therefore, he was entitled to institute an application under Section 13-A of the Act. This finding has also attained finality as none of the tenant-respondents have challenged this finding.
5. The only question which has been debated before me is whether the building in question is a residential building under Section 13A of the Act. The Rent Controller has recorded a finding that the demised premises is a non-residential building within the meaning of Section 2(d) of the Act and therefore a specified landlord in respect of non residential building cannot maintain an application for ejectment of his tenant on the ground that he needs to recover immediate possession of his building for self occupation, the afore-mentioned finding has been recorded by the Rent Controller on the basis of various pieces of evidence which reads as under:-
"Description of the property in dispute is given as shop No. 2 by the petitioner himself In the site plan Ex.A10 also it is shown as shop and adjoining to it another shop No. 1. There was no averment in the petition that this shop is part and parcel of the residential building that it has been converted to commercial use without the permission of the Rent Controller. When the facts were brought to light by the respondent in his written statement, the petitioner in the rejoinder denied that earlier the ground floor of the premises was commercial. In fact this building was used by Tara Singh for his personal residence, and, that house on No. 221 which was owned by Tara Singh is in the ownership and occupation of Smt. Amrit Kaur mother of the petitioner and her daughter. Respondent as RW 1 stated that he is running business in this shop. The latest receipts issued by Smt. Amrit Kaur regarding payment of rent are Ex. R.2 dated 8.1.1991 and Ex. R.1 dated 8.2.1991. The shop is situated at Tanda Road which is bazar. There are shops on both sides of road and there are also shops of iron merchants and factory of M/s Amin Chand Bhola Nath. The shop is also not connected with the other part of the building. Tara Singh himself during his life time used to fun pig iron furnance in a portion of this building. There is also the office of the Punjab State Electricity Board on the upper storey of the building. There are six or seven rooms in which electricity office is situated. This evidence is almost admitted by the petitioner and his witnesses. AW3 Gian Singh stated that on the Tanda Road there are many hardware shops as well as factories though he has qualified his statement by his version that at the time of inception of tenancy there was only one shop. He also admitted that Sh. Tara Singh was doing business in the portion of his building but also reside here. AW 1 Atma Singh admitted as correct the suggestion that the disputed shop falls in the bazar and situated on Tanda Road. It is, however, disputed that Tara Singh was also residing in a portion of this building as stated by Gian Singh AW 3. The respondent in the cross examination RW1 levied that Tara Singh was living in this building when he took the shop in question on rent. The petitioner as AW 2 admitted that M/s Mittal and Co. was running a factory in a shed which is part of this building. He also admitted that eight rooms on the upper storey of this building have been rented out to Punjab State Electricity Board. By no stretch of imagination, therefore, the shop in question can be considered as residential in order to attract provisions of Section 13-A of the Act. The applicant has not described anything in his statement or in the site plan Ex.A.10 whether the room in question has any provision for bath room toilet or kitchen so that it could be termed as residential or as a part of the residential portion of the building. There is no dispute that the petitioner has filed four different eviction applications. The other three are : (i) Harjit Singh v. R.K. Steel Ejectment Application No. 292/92: (ii) Harjit Singh v. Jamna Dass, Ejectment Application No. 294/92 and (iii) Harjit Singh v. Bal Kishan, Ejectment Appl. No. 295/92, in respect of the shops in possession of each of the tenants which are pending in this very Court. The structural design of building therefore has been that the rooms in the front of the building, were meant as shops as these open in the bazar towards Tanda Road, where there are number of commercial complexes. The site plan itself shows that there is big space in between the shop's and remaining construction of the building in a portion of which the applicant resides..."
6. Shri Ashok Pruthi, learned counsel for the landlord-petitioner has submitted that the Rent Controller has committed grave error in law by treating the demised building as a non-residential building. According to the learned counsel the requirement of Section 13-A of the Act is that a specified landlord within one year after his retirement is qualified to apply to the Rent Controller, stating that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building. The learned counsel has also referred to the definition of expression residential building as adopted by Section 2(d) and (g) of the Act and has then submitted that a non-residential building would be the one for being used exclusively for the purposes of business or trade. In other words, if a part of the building is being used as a residential and other parts are being used for non-residential purposes in that case such a building would be covered by the expression residential building as given in Section 2(g) of the Act. In support of his submission, the learned counsel has placed reliance on a Full Bench judgement of this Court in the case of Hari Mittal v. B.M. Sikka, (1986)88 P.L.R. 1. Emphasising the mandatory nature of the provision, the learned counsel has argued that once it is held that the building is being used for residential purpose also then it would not be covered by the expression non-residential building as defined in Section 2(d) of the Act. He has also placed reliance on a judgment of the Supreme Court in the case of Vinod Kumar Arora v. Surjit Kaur A.I.R. 1987 S.C. 2179. The learned counsel has also submitted that the finding of the Rent Controller concluding that the building is non-residential building by referring to the adjoining building and shops is absolutely erroneous and cannot be sustained. He has referred to the statement of RW1 Sat Narain son of Daya Ram to point out that the witness has stated in his examination-in-chief that the landlord-petitioner along with others have another house which is situated in Laxmipura adjoining to the building in which the demised premises is situated. The witness has further stated that there is a passage from the Laxmipura as well as from Tanda Road and the father of the landlord-petitioner Tara Singh used to live in that house where some tenants and rest of the members of the family of the landlord-petitioner have been living. He has also referred to the statement of AW2 Harjit Singh, landlord-petitioner where he has stated that the demised premises had always been used by Tara Singh, his father, and he himself, for residential purposes. The witness has further stated that the property in dispute is part of the property No. 206 and all the properties adjacent to property No. 206 are domestic properties. He has further stated that on the southern and northern side of the property Pyare Lal and Ram Singh have been residing and that he did not own and possess any other property. The learned counsel has also referred to the statement of this witness in the cross-examination which reads as under:-
".....It is correct that there are two houses No. NB 206, Tanda Road and NB 221, Laxmipura. It is correct that a road to Lakshmipura goes from Tanda Road. The house is at the back of NB 206. It is correct that ground floor in which aforesaid factory of Mr. Mittal was working has been vacated by the orders of the Court. It is correct that in KB 206 there are eight rooms. These rooms are not on the ground floor alone. I would not call a factory which was being run a workshop but only a shed. It is correct that it is separate from eight rooms. It is incorrect to suggest that the demised premises were shops from inception. These were converted into shops in the year 1969 or 1970. I got one shop vacated about 1-1/2 years earlier to the filing of the application. The shop was given on rent by my mother after vacation of the shop to Mr. Garg..."
7. Reference has also been made to the statement of Gian Singh AW3 who in his cross examination has stated as under:
"I live in village Dialpur and not at Tanda Road. I have nothing to do at Tanda Road where the demised premises are situated. I had come to Tara Singh to meet him when the will was written. His wife, Tara Singh and no body else was present there. I have seen Tanda Road. It is correct that on the Tanda Road there are many hardware shops as well as factories, but at the time of creation of tenancy there was only one shop. I cannot tell when the tenancy commenced. Late Tara Singh was doing his business in the building in question but he was also residing in the same. There is another building adjacent to demised premises belonging to Tara Singh. Tara Singh has left his widow, one daughter and one son. I am the scribe of the will. I handed over the will to Tara Singh. His wife know that the will has been written. It is incorrect to suggest that I have made a wrong statement because I am related to Tara Singh."
8. Learned counsel has also drawn by attention to the statement of RW2 Inder Kumar son of Pyare Lal to show that there are residential houses adjacent to the disputed property. On the basis of the afore mentioned statement of the witnesses produced by the landlord petitioner and tenant-respondent, the learned counsel has argued that the finding of the Rent Controller to the effect that the building is exclusively used for commercial purposes cannot be accepted and it has to be held that the building was a residential building as well as commercial building. The learned counsel has contended that once it is held to be a residential as well as non residential building then it has to be held as residential building and benefit of Section 13-A of the Act would be available to the landlord petitioner because of the definition of the expression residential building as given in Section 2(g) of the Act.
9. The learned counsel has also referred to Section 11 of the Act to argue that if the building which is being used for residential and non-residential purposes is treated as non-residential building alone then the provision made in Sections 2(d) and (g) and Section 11 of the Act would be rendered illusory which can hardly be the intention of the Legislature.
10. The learned counsel has also argued that the judgment in Zenobia Bhanot v. P.K. Vasuydeva, (1992-2)101 P.L.R. 663 relied upon by the Rent Controller for the purposes of concluding that the landlord-petitioner cannot recover possession of more than one residential building inclusive of any part or parts thereof if it is let out in part or parts would no longer govern the controversy. Accordingly to the learned counsel the judgement in Zenobia Bhanot's case (supra) was taken to the Supreme Court in appeal and was reversed which is reported as Zenobia Bhannot v. P.V. Vasudeva, (1996-1) 112 P.L.R. 220. Therefore, according to the learned counsel the finding that the landlord-petitioner was entitled only to get ejectment from only one part of the building cannot be sustained.
11. Shri O.P. Hoshiarpuri, learned counsel for the tenant-respondent has argued that the landlord-petitioner in the heading of the petition filed under Section 13-A of the Act has described it as a shop i.e. Shop No. 2, 12 ft. x 20 ft. compromised in property No. NB 206, Tanda Road; Jalandhar". He has then referred to the statement of Gian Singh AW2 which has already been reproduced above to show that Tanda Road is a commercial area as there are many Hardware shops as well as factories. He has then referred to the statement of landlord-petitioner Harjit Singh himself where he has admitted that the building is commercial in nature and he got the premises vacated from one Mr. Mittal who was running a factory and had given it to one Mr. Garg. He has also pointed out that the landlord-petitioner has admitted that these shops were erected in the year 1970-71 and were rented out thereafter and the that on the first floor the office of P.S.E.B. is situated. In support of his submission, the learned counsel has placed reliance on a judgement of this Court in the case of Dr. Jagjit Singh Mehta v. Dev Brat Sharma, (1988-1)93 P.L.R. 154 to argue that me judgement of the Full Bench in Hari Mittal's case (supra) is confined to the question whether a residential building can be converted into a non-residential building by putting it to non-residential use. According to the learned counsel the question before this Court is whether the building which was taken by the tenant-respondent specifically for commercial purposes and which has never been used for residential purpose would be available to a specified learned like the landlord-petitioner under Section 13 A of the Act. He has then referred to another judgement of this court in the case of Dharam Pal Daulay v. P.S. Bhandari and ORs. , (1993-1)103 P.L.R. 529 to argue that even if originally the building was a residential building and the room constructed at a later stage was being used as a shop then it cannot be regarded as a non residential building especially when the entire area has taken the shape of a commercial area.
12. After hearing the learned counsel for the parties and perusing the record. I am of the considered opinion that this petition deserves to be allowed. A reference may be made to the provisions of Sections 2(d), 2(g) 11 and 13 A of the Act which read as under:
"2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,-
(a) to (c) xx xx
(d) "non residential building" means a building being used solely for the propose of business or trade:
Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a non-residential building to a residential building
(g) residential building means any building which is not a non residential building"
"11. Conversion of a residential building into a non-residential building.- No person shall convert a residential building into a non-residential building except with the permission in writing of the Controller."
"13A. Right to recover immediate possession of residential or scheduled building to accrue to certain persons.--Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied, custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts;
and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant:
Provided further that the Controller may give the tenant a reasonable period for putting the specified landlord or as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law in possession of the residential building or scheduled building, as the case may be and may extend such time so as not to exceed three months in the aggregate.
Explanation.--for the purposes of this section, the expression retirement means termination of service of a specified landlord otherwise than by resignation."
13. A perusal of sections 2(d) and (g) of the Act makes it evident that a building which is being used for both purposes i.e. residential and non residential would be treated as a residential building and cannot be considered as non residential, building alone. The mandate of Section 11 of the Act further is that no one would be entitled to convert a residential building in a non residential building without the prior consent of the Rent Controller. Admittedly, no consent in this case was ever taken for converting the residential building into a non-residential building. This provision came up for consideration before a Full Bench of this Court in the case of Hari Mittal (supra) wherein it was held that the object of enacting a prohibition contained in Section 11 of the Act is that no scarcity of accommodation for residential purposes could be permitted to be created by converting the residential building into non-residential building even by the landlord without the consent of the Rent Controller. The observations of their Lordships of the Full Bench in Hari Mittal's case (supra) read as under-
"In our opinion, the kind of purpose that Clause (k) of Section 14(1) of the Delhi Rent Act served, the same purpose appears to have been introduced by the Punjab Legislature in the present case to be served by the provision of Section 11 of the Act, so far as the use of the residential building for non residential purpose is concerned. This injunction was intended to be sub-serve a public policy of seeing that the residential accommodation does not fall short of the community's requirement, as the shortage of residential accommodation would tend to result in unhygienic condition of the residential area by accommodating more members than it could legitimately be intended or the extra population resorting to unhygienic use of the open spaces and pavements and creating social tension and health hazards to the community in view of the above, the provisions of Section 11 of the Act are mandatory in character.
It was then argued that if Section 11 of the Act was intended to subserve a public policy of the kind, then it would prohibit even a landlord for converting a self occupied residential buildings, but this Court in two Division Bench decisions referred to by the Division Bench in Bansal's case (supra) that is, Chattar Sain's case (supra) and Faquir Chand's case (supra) has taken the view that Section 11 is not attracted to a residential building which is in the self occupation of the landlord, hence the landlord could convert it into a self occupied non residential building without the permission of the Controller in terms of Section 11 of the Act.
We are of the opinion, with respect, that Chattar Sain's case (supra) and Faquir Chand v. Ram Kali's case (supra) do not lay down the correct law and we, therefore, overrule them.":
14. A perusal of Section 13-A of the Act shows that the expression residential building or scheduled building has been employed which is defined by Section 2(g) of the Act. Therefore, once the building is held, to be a residential building by the operation of law then the benefit of Section 13 A of the Act would be available to the landlord-petitioner because even a building partially being used for commercial purposes and partially for residential purpose would be covered by expression residential building. A non-residential building has been defined to mean a building used solely for the purpose of business or trade.
15. The Rent Controller completely ignored the fact that a residential building may partially be used for commercial purposes but a non-residential building is to be used solely for the purposes of business or trade. It is probably for this reason that he ignored the statements of various witnesses like RW1 Sat Narain, AW2 Gian Singh and RW2 Inder Kumar. These statements, as already referred above, would demonstrate that the building is not being used exclusively for commercial purposes.
16. However, the question is whether this court could interfere in findings of fact and what is the scope of Sub-section 15 under the Act. It is true that power of revision vested in this Court under Sub-section 5 of Section 15 of the Act does not go the extent of exercising appellate power. All the same, it is not restricted to the areas specified by Section 115 of the Code of Civil Procedure, 1908. The provisions of Sub-section 5 of Section 15 of the Act reads as under:-
"15. fasting of appellate authority on offers by State Government. (1) to (4) xx xx xx (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying himself as to the legality or propriety of such order or proceedings and may pass such an order in relation thereto as it may deem fit."
17. A perusal of Sub-section 5 of Section 15 of the Act shows that this Court is clothed with the power to satisfy itself as to the legality and propriety of any order passed by the Rent Controller or the Appellate Authority. In cases where the statement of witnesses in respect of material facts have been ignored by the Rent Controller or the Appellate Authority and which have substantial bearing on the finding then this Court is entitled to take into consideration those statements and record a conclusion different than the one recorded by the Rent Controller. In the present case, the Rent Controller appears to be totally oblivious to the expression residential building which could mean that part of the building being used as residence and the other part being used for trade or commerce but still it would retain the character of a residential building,
18. The power of this Court in revisional jurisdiction made in the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity the Haryana Act) came up for consideration before the Supreme Court in the case of Vaneet Jain v. Jagjit Singh, (2000-3)126 P.L.R. 263 (S.C.) Dealing with Sub-section 6 of Section 15 of the Haryana Act, which is pari materia to Sub-section 5 of Section 15 of the Act, their Lordships observed as under:
"Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999)6 S.C.C. 222 held, that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998)8 S.C.C. 119 it was held that High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose of ascertaining as to whether the conclusion arrived at by the fact finding court is wholly unreasonable.
A perusal of Sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below."
19. Similar view has been taken in the case of Shiv Lal v. Sat Parkash, 1993 (supply) 2 S.C.C. 345 and Bhoop Chand v. Kay Pee Cee Investments, (1991)1 S.C.C. 343, Sub-Section 6 of Section 15 of the Haryana Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh, (1995-3)111 P.L.R. 276 (S.C.). Placing reliance on Hari Shankar v. Rao Girdhari Lal Chowdhary A.I.R. 1963 S.C. 698: State of Kerala v. K.M. Charia Abdullah and Co., A.I.R. 1965 S.C. 1585 and Neta Ram v. Jiwan Lal, 14 A.I.R. 1963 S.C. 499, their Lordships pointed out the distinction between the re-visional power under the Rent Act and the appellate power which reads as under:
"From the use of expression "Legality or propriety of such order or proceedings" occurring in Sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act -is wider than the power under Section 115 of the Code of the Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrance within its fold all the attributes and characteristics of an appeal and disturb a concurrent findings of fact properly arrived at without recording a finding that such conclusion are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High court comes to the conclusion that the concurrent finding recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference."
20. From the above enunciation of law laid down by the Supreme Court it is evident that despite wider nature of power of revision with the High Court under the Rent Act than the power of revision under Section 115 of the Code of Civil Procedure, 1908 a distinction has to be maintained between a revision and an appeal. The ground of revisions are limited and can be summed up as under :-
(a) Findings are perverse;
(b) Findings are bald and without evidence;
(c) Findings are based on perfunctory and superficial approach;
(d) Findings are wholly unreasonable;
(e) Findings cannot be reversed by re-assessing evidence merely because a view different than the one recorded by the Courts below is possible;
(f) Powers of revision under Sub-section (6) of Section 15 of the Act do not extend to power of regular appeal."
21. If the facts of the present case are examined in the light of the principles enunciated by the Supreme Court then it would become evident that the findings are based on perfunctory and superficial approach adopted by the Rent Controller. As noticed above, he has completely ignored the statements of various witnesses who have stated that the building is being used for residential purposes. In this regard, reference may be made to the statements of witnesses like RW1 Sat Narain; AW2 Gian Singh and RW2 Inder Kumar. As the statements of aforementioned witnesses would make a substantive difference of for the purposes of concluding whether the demised premises would be considered as residential building or a non residential building. It was not the dutiful approach adopted by the Rent Controller. Such statements are relevant because of the substantive law and would make material difference to the character of the premises in dispute as the definition of residential building and a non-residential building provide that to fall under the residential building the premises could be used for both purposes but to fall under non-residential building the premises has to be used only for one purpose i.e. commercial purpose only. Moreover, no permission has been obtained from the Rent Controller by either of the parties for converting the character of the building from residential building to a non-residential building.
22. Therefore, the landlord-petitioner would be entitled to recover possession of the demised premises. Reliance in this regard can be placed on a judgment of this Court in case of Om Parkash v. Shiv Dutt Sharma, 1991(1) R.C.R. 395: Sarjit Singh v. Gian Singh Gandhi, (1990-2)98 P.L.R. 355 and d Hem Raj v. Ramesh Kamar Khosla, (1994-3)108 P.L.R. 108. 23. The view of the Rent Controller that the landlord petitioner cannot seek eviction of the tenant-respondent from all parts of the building would also be unsustainable because the judgment in Zenobia Bhanot's case(supra) has now been reversed by the Supreme Court on appeal See Zenobia Bhanot v. P.K. Vasudeva and Anr., (1996-1)112 P.L.R. 220. Recognising the right of the landlord to recover the possession of a part or parts of the building and reversing the judgment of this Court, their Lordships observed as under:
"The title to Section 13-A state that the right is given to a specified landlord to recover immediate possession of residential or scheduled building. The statement of Objects and Reasons also states that the summary procedure for eviction of tenants from the residential and scheduled buildings is provided in Section 13-A. The crucial words in Section 13-A, clearly point out that, where a specified landlord, at any time within one year.... applies to the Rent Controller... to recover possession of his residential building for his own occupation.,, there shall accrue, on and from the date of such application to such specified landlord...., a right to recover immediately the possession of such residential building... or any pan or parts of such building, if it is let out in part or parts. The provisions of the Statute are clear. The right is given to a specified landlord to recover immediate possession of the residential building. He should have retired from the service and should file an affidavit that he does not own and possess any other suitable accommodation to reside. In such a case, he can require possession of his residential or scheduled building for his own occupation. The right is given to the landlord notwithstanding any other provision in the Act or any other law or any contract to the contrary, to recover immediately the possession of such residential building. If such residential building is let out in parts, the landlord is given the option to recover immediately the possession of such residential building itself or any part or parts of such building, in cases where it is let out in part or parts. In case the building is let out in parts, the parts so let out, will form part of the building itself. All that the second proviso provides is that the said right shall not enable the landlord to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if the building is let out in part or parts. There are no words in Section 13-A of the Act to import the idea that if a residential building is let out in parts, each part will become a residential building thereby fettering the specified landlord to avail the concession only from a part. Section 13-A, which gives a special right to the landlord, is to enable him, to exercise the right to recover the residential building for his own occupation, if he does not own or possess any other suitable accommodation. In interpreting the Section, it is farcry to state, that the question as to whether the accommodation with the landlord after taking possession from one of the tenants is sufficient for his personal requirement or not, is not to be gone into in such proceedings. The right is given to the landlord, in case where he does not own or possess any other suitable accommodation to recover possession of his residential building. If the building is let out in parts, any or all such parts can also be recovered, since the part or parts let out, form part of the building. Section 13-A clearly points out that the landlord has an option to get the recovery (the immediate building or any part of parts of such building, in a case where the building is let out in parts. The option so given to the landlord by the concluding words in the opening clause of Section 13-A, in cases where the building is let out in part or parts, either to recover the whole building or to recover in part or parts thereof is reinforced by the second proviso. By no stretch of reasoning, the second proviso of Section 13-A can be construed as nullifying the main provision of Section 13-A and, the particular, the concluding words in the opening clause of Section 13-A whereby the option is given to the landlord to recover the possession of residential building itself or any part or parts thereof in cases where the building is let out in part or parts. We hold that the reasoning and conclusion to the contrary the two reported judgments of Punjab and Haryana High Court and also in the judgment under appeal dated 20.7.1992 are clearly erroneous and unjustified. On the other hand, the reasoning contained in the order of reference dated 26.11.1990 appear to us, as reasonable and fair and the same is in accord with the legislative intend and the language of Section 13-A of the Act. We set aside the judgment of the Division Bench of the Punjab and Haryana High Court dated 20.7.1992 appealed against herein and allow the appeals."
23. For the reasons recorded above, all the three revision petitions are allowed. The tenant-respondents are granted three months time from today to hand over the vacant possession of the demised premises to the landlord petitioner failing which the landlord-
petitioner would be entitled to execute this order and recover possession immediately on the expiry of three months.