Punjab-Haryana High Court
Gurbax Singh vs Kuldip Singh on 8 February, 1990
Equivalent citations: (1990)97PLR704
JUDGMENT Amarjeet Chaudhary, J.
1. This is a revision petition filed by landlord against the judgment of Rent Controller, Ludhiana dated 30-1-1989 whereby his application under Section 13 A of the East Punjab Urban Rent Restriction Act, 1949 (as amended by Act 2 of 1986) for ejectment of the respondent has been rejected.
2. The case set out by the landlord in the rent petition is that the tenant/ respondent is a tenant in two rooms and common bath room, forming part of property No BXXV. 1141/1 situated at Sardar Nagar, Basti Jodhewal, Rohon Road, Ludhiana shown red in the site plan whtch were let out at a monthly rent of Rs 200/- seven years back. The petitioner at the time of filing the rent petition was posted at Chandigarh as Settlement Officer (Rehabilitation) Punjab and was to retire on 30-9-1988 Personal necessity was justified in the pleadings through his petition and factum of occupation of another house at Ludhiana was also admitted However, in view of size of family, ejectment of the respondent was sought on the ground of personal necessity.
3. The respondent contested the petition, after getting necessary permission to contest the same and pleaded that the demised premises is a shop which was let out in October, 1978 and present petition was filed malafide to coerce him to increase the rent of Rs. 500/-- p.m. and that the petitioner does not require the premises bonafide and is having sufficient accommodation and it was also averred that the demised premises being shop had nothing to do with common bath. The shop is having shutters and as such cannot be used for residential purposes, hence provision of Section 13-A of the Act cannot be made applicable. He also gave details of premises in occupation of landlord/petitioner. The following issues were struck by the Id. Rent Controller.
1. Whether the demised premises were let out as 'shop' and as such provisions of Section 13 A of the East Punjab Urban Rent Restriction Act are not applicable, OPR;
2. Whether the petitioner does not own and possess suitable accommodation in the local area for his own occupation, OPA; and
3. Relief.
4. After recording evidence, the Rent Controller decided Issue No. 1 against the landlord/petitioner and recorded a finding in his favour on issue No. 2. Consequently, the Rent petition was dismissed. The learned counsel for the landlord/petitioner vehemently argued and assailed the findings of the learned Rent Controller on Issue No. 1 on various grounds and his star argument was that the demised premises was a part of residential building and no permission was obtained for renting out the same for non-residential purpose as requited under Section 11 of the Act. Hence it was residential building and covered under Section 13-A of the Act. It was also argued that the Rent Controller mis-read the site plain Exhibit A/2 showing common bath room as part of the tenanted premises, duly proved through AW. 2 who deposed that the demised premises is linked by doors with rest of the house and that the findings of the Rent Controller is against She Full Bench judgment of this Court rendered in the case of Hari Mittal v. B. M. Sikka, (1986-1) 89 P. L. R. 1. He also relied upon the decisions reported as Vinod Kumar Arora v. Smt. Surjit Kaur, A. I. R. 1987 S. C. 2179. Sita Ram v. Kalawati , (1989-2) 96 P.L.R. 139. and B. R. Dullar v. C. P. Sethi , 1989 H. R. R. 235.. Besides the aforementioned arguments, it was also argued that the tenant/respondent resides in a demised premises and that he also gave address of the demised premises in Sale deed Exhibit A-1 and that the Rent Controller has decided the case against the law and facts.
5. The learned counsel for the respondents vehemently argued that the demised premises was non-residential which was let out for non-residential purposes and the landlord-petitioner purchased the same as non-residential as shown in the sale deed Ex. R-l and that the landlord/petitioner did not approach the Court with clean hand. The learned counsel relied upon the decisions reported as Hiralal Kapur v. Shri Prabhu Chaudury , 1988 (1) R. C. R. 241. and M/s General Radio and Appliances Co. Ltd. and Ors. v. M. A. Khader (dead), 1986 (2) R. C. R. 283. and Hari Shankar v. Kaliasho and Ors, (1986-1) 89 P. L. R. 703.
6. I have heard the arguments of the learned counsel for the parties and have perused the records of the case minutely and I am of the considered view that the landlord/petitioner must fall on both counts i.e. on his conduct as well as on merit.
7. It is patent on the record that the landlord/petitioner purchased the property including the demised premises from one Wadhawa Ram on 5-7-1977 vide sale deed Exhibit R-l in which demised premises have been shown as a shop. It is also not under dispute that there is no documentary evidence showing the letting out purpose. However, the area locality of the premises is non-residential and adjoining premises are also shops abutting Rahon Road and the demised premises has got a shatter and is a separate portion altogether. This fact is supported by photographs Exhibits R. 3 to R. 5 and site plan Exhibit R. 2. Front room on other sides of the passage in between is also a shop having shutter One Tirath Singh is in occupation of which as a tenant running welding shop there. It is. thus, clear that the demised premises is non- residential and is being used for non-residential purpose. It was used as a shop even before the house was purchased by the landlord/petitioner and exhibit R. 1, sale deed is evidence thereof.
8. The landlord/petitioner refused to produce the sale deed and also was hesitant in disclosing the fact if two shops were indicated as part of house sold to him, nor he disclosed the particulars of the sale deed In fact the landlord tried to supress this fact with a view to avoid true facts coming on record. Not only this, T. S. Form No. 1 including Fxhibit R 11 shows that EL No. 1141/1 has two shops, one is in possession of the respondent at the rate of Rs. 150/- p.m. and the other is in possession of one Tirath Singh at the rate of Rs. 100/- p.m. T S. Forms for the years 1978-79 Exhibit R. 4 shows, one shop and similar position in the subsequent T. S. Forms. This document further establishes that the demised premises and the remaning front portion on the other side of the passage in between are two shops referred to in sale deed Exhibit R. 1.
9. Despite the fact, the landlord/petitioner in his examination-in-chief stated that the portion in dispute was let out as a house and that the doors and windows open in the remaining portion of the house. However, he was unable to tell if the respondent was still using the demised portion for residential purpose or had shifted his residence from there. In his cross-examination, be had stated that he had not put shutter to the front room of the demised premises and he was not aware of this fact as he had not visited the house for the last two years However he admitted that there are shops surrounding his house but he was unable to tell the measurement of the front portion The landlord was also hesitant to tell as to what business Tirath Singh does in the portion In his possossion The site plan produced by the landlord/petitioner Exbit A. 2 was not corroborated by AW 2 Subhash Chander, Draftsman Admittedly the site plan A. 2 was not signed by the petioner rather in the site plan, in place of common bath-room, a kitchen has been shown to be in possession of the respondent. Thus the site plan which does not bear the signatures of the owner or any of his attorney and does not depict the correct position cannot be taken on its face value Even A.W. 2 Subhash Chander, Draftsman did not tell if the shop has a shutter or not. He could not tell the width of the opening between the two rooms. The testimony of AW. 3, Cham Lal can also be discarded as he was not present at the time of execution of sale-deed, nor there was any agreement to sell. So his saying that the house was sold by previous owner as acant cannot be believed.
10. There is no force in the arguments of the learned conusel for the petitioner that in sale deed Ex. A. 7, the respondent has given his address of premises in dispute. However, that is immaterial as giving address in papers will not amount to residing at the demised premises. This has been reported in Sulekh Chand Jain v. Minhas Chand Join, 1986 (1) R. C. R 191. The respondent has successfully proved on 'he record that the premises was non-residential and was let out for non-residential purposes. Various documents have been placed on the record. P.W. 3 is close relation of Wadhawa Ram, the original owner, who deposed that the original owner used to run a Karyana shop in the demissed premises whereas the remaining portion was Coal Depot. Now the adjoining shop is in possession of Tirath Singh, tenant. Earlier the shop now in possession of Tirath Singh used to be with one Hard Pump Seller. Even electric meter is commercial Thus the oral evidence recapitulated further corroborates that the premises was non-residential and had been let out for the said purpose.
11. The arguments of the learned counsel for the landlord/petitioner loses sight of definition of word building as given in Section 3 (a) of the Rent Act which reads as under :
"'Building' means any building or part of the building let for any purpose whether actually used for that purpose of not including any land, godown, out house or verandah let therewith, but does not include a room in hatstel, hotel of boarding house "
12. So apparently any portion of the residential site building which was constructed solely for non-residential purpose and was let out for non-residential purpose has to be treated as non-residential and the ground of personal necessity will not be applicable to it. Hence the authorities relied upon by the learned counsel will not be applicable in this case The decision rendered in the case of Dr. Jagjit Mehta v. Dev Dutt Sharma, 1988 (1) R.C. R. 308, supports the case of the respondent It lays down that when the portion of the residential building converted into shop and let out to tenant for non-residential purpose and the specified landlord wanted to start practice as an Advocate after retirement in the let out portion, the tenant cannot be ejected as the premises were a shop. So far as the Full Bench authority of Hari Mittals case, (supra) is concerned, it is on different facts inasmuch as in the said case it was a residential building let out for non-residential purposes, whereas in the present case the demised premises was constructed for non-residential purpose had been let out for non-residential purpose and had been used as such either by the owner or by the tenant Hence, Hari Mitta's case (supra) will not be applicable. I, therefore, do not find any infirmity in the findings recorded by the Rent Controller on issue No. 1. The same is affirmed.
13. Since the 'landloard/pstitioner fails on Issue No. 1 so there is no necessity of going into the merits of issue No. 2 as it is dependant upon Issue No. 1. The learned Rent Controller has held that if the landlord succeeded on Issue No. 1, he would have succeeded on Issue No. 2 and I affirm his view on Issue No. 2. Thus in the totality of the circumstance, I bold that the landlord-petitioner has not approached the Court with clean hands and has infact tried to conceal the fact with regard to the nature of the demised premises and was hesitant in disclosing even particulars of the sale-deed through which he purchased the property. He also produced a site plan Ex. A. 2 giving wrong description. Admittedly, the demised premises is an independent unit constructed for non-residential purpose and was being used for non-residential purposes, even prior to purchase thereof by the landlord-petitioner as shows in sale deed Ex. R. 1 dated 5-7-1977. Hence the same will be treated as non-residential inview of the definition of word 'Building' given in Section 2(a) of the Rent Act, irrespective of the fact that rest of the portion except, the other side of the demised premises was residential, hence the provisions of Section 13-A claiming the possession from the respondent as a specified landlord on the ground of personal necessity would not be applicable.
14. For the foregoing reasons I do not find any merit in the revision petition and resultantly the same fails and is hereby dismissed with no order as to costs.