Punjab-Haryana High Court
M/S. Globe Publications And Another vs Madan Gopal And Another on 18 October, 1995
Equivalent citations: AIR1996P&H115, (1996)112PLR280, AIR 1996 PUNJAB AND HARYANA 115, (1996) 112 PUN LR 280, (1996) 1 ICC 54, (1995) 2 RENTLR 740, 1995 HRR 560, (1996) 1 RENCR 154
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER
1. Tenant petitioner (hereinafter referred to as 'the tenant') has challenged the orders passed by the Courts below ordering his ejectment from the premises in dispute, shown red in the site plan attached, of the premises bearing House Tax No. 572, Block-V (Old No. 6849), Railway Road, Ambala City.
2. Briefly stated, the facts of the present petition are that one Bimla Devi who was the original owner of the premises in dispute let out the premises in dispute to the tenant in the year 1967. Present landlord, who is a practising Advocate at Ambala, purchased the same in the year 1980. The tenancy under the tenant starts from 14th day of every month and ends with the 15th day of the next month.
3. Landlord-respondent (hereinafter referred to as 'the landlord') filed an application for ejectment against the tenant from the premises in dispute on the following grounds :--
i) that the respondent has failed to pay the rent from 14-5-1981 to 13-5-1984.
ii) That the petitioners require the Premises in question for their own use and occupation.
4. Tenant contested the petition and inter alia pleaded that M/s. Globe Publications, Railway Road, Ambala City has been the tenant for the last more than 17 years and the application filed in the present form was not maintainable without impleading M/s. Globe Publications. The factum of existence of relationship of landlord and tenant between M/s. Globe Publications and the landlord is proved from the recital in the sale deed executed by the previous landlord Smt. Bimla Devi in favour of the present landlord. It was further pleaded that the landlord did not require the premises in question for his own use and occupation because the landlord had sufficient accommodation in his possession. Lastly, it was also pleaded that the building in occupation of the tenant is a commercial building, so the ground of personal necessity is not available to the landlord and no decree of eviction can be passed on that ground.
5. Replication to the written statement was filed. On the basis of the pleadings of the parties, following issues were framed :--
"1. Whether the petitioners require the premises in question for their own use and occupation? OPP 1A. Whether Uttam Chand Bajaj in his personal capacity or whether M/s. Globe Publications firm is a tenant under the petitioner? OPP (This issue was framed at a later date i.e. 29-7-1991).
2. Whether the application is not maintainable in the present form? OPR
3. Whether building in occupation of the respondent is a commercial building? If so, its effect? OPR
4. Relief."
6. Demanded rent was tendered in Court.
7. Parties led their evidence.
8. Rent Controller decided all the issues in favour of the landlord and against the tenant. Order of ejectment was passed against the tenant against which an appeal was pre ferred by the tenant which was also dismissed, aggrieved against, which the present revision petition has been filed.
9. Admitted position between the parties is that there is no rent note. One of the basic question to be decided in the present revision petition is as to who is the tenant of the premises in dispute. The case of the tenant is that the tenanted premises were let out to M/s. Globe Publications whereas the case of the landlord is that the same were let out to Uttam Chand Bajaj in his personal capacity. Tenant has relied upon two documents. Exh.R-1 and Exh.R-2. Exh.R-2 is a receipt issued by the landlord where the landlord accepted the rent from M/s. Globe Publications. Exh.R-l is the agreement between Bimla Devi, previous owner, and the present landlord. In this agreement, it is written that the premises in dispute have been let out to M/s. Globe Publications. Exh.RW-3/A and Exh.RW-3/B are the house tax assessment registers in which again, M/s. Globe Publications has been shown to be the tenant in possession of the premises in dispute.
10. As against this, the landlord has relied upon judgment Exh.A-2, given by the Rent Controller, in a application filed by the landlord for fixing the fair rent. In this judgment, the tenant had taken the plea that M/s. Globe Publications was a tenant and an issue to that effect had been framed. No decision was given on this issue but impliedly, it was held that Uttam Chand Bajaj was the tenant of the premises in dispute. Fair rent was fixed as demanded by the landlord.
Argument of the counsel for the landlord is that the findings recorded, either expressly or impliedly, holding Uttam Chand Bajaj to be the tenant, would operate as constructive res judicata regarding the same issue in any subsequent proceedings.
11. I find force in the submission made by the counsel for the landlord. A specific issue was framed in the application for fixation of fair rent of the premises in dispute. Although, no specific finding has been recorded by the Rent Controller on this issue but by implication, it has been held that Uttam Chand Bajaj was the tenant of the premises in dispute.
12. A Division Bench of the then PEPSU High Court in Balbahadur Singh Amar Singh v. Walaiti Ram Kalu Ram, AIR 1954 PEPSU 55, held that where a point has been urged by a party but not decided the same would be regarded as having been determined against him. It was held as under:--
"Lastly it was urged that the objection regarding limitation, though raised in the objection petition by Balbahadur Singh, was not put in issue and was not expressly determined. While dismissing the objections of Balbahadur Singh the court directed the land of the judgment-debtor to be attached and it was in fact subsequently attached. Dismissal of objection petition in which a question of limitation was also raised and ordering attachment amounts to an order holding the execution application within time. A point urged but not decided in favour of the judgment-debtor should be regarded as having been determined against him. Ofder dated 22-10-2006 (sic) could have been appealed against by Balbahadur Singh if he felt aggrieved and unless set aside it was final and binding so far as he was concerned. He could not, therefore, subsequently urge that the execution application was barred by time under Section 48, C.P.C."
13. Onus to prove the issue regarding as to who is the tenant was upon the tenant. The same was not decided in his favour and the same would be taken to have been derided against him. If the tenant was aggrieved against the decision of the Rent Controller, Exh. A-2, then he should have filed an appeal/ revision against the said order and got it set aside. He cannot at this stage be permitted to argue that the finding recorded in the earlier rent petition would not operate as constructive res judicata on the question as to who is the tenant of the premises in dispute.
14. In Rakha Singh v. Amrit Lal, AIR 1984 Punj and Har 47, a learned single Judge of this Court, while interpreting Explanation VI of Section 11, Civil Procedure Code, regarding constructive res judicata, held as under:--
"From a reading of the sect ion, it is evident that a decision of a Court is final not only if it has been decided in an earlier suit between Ihe same parties but also if the matter might or ought to have been made ground of defence or attack in the former suit. The principle underlying the Explanation is that if a party had an opportunity to raise a matter in a suit that should be considered to have been raised and decided. The object of the principle is to cut short litigation between the parties so that a person may not be vexed again and again with regard to the same matter. The facts of the present case have been given in detail above. The plaintiff could take the pleas, which have been taken by him now, in the earlier suit. Therefore, the principle of constructive res judicata is applicable."
15. In Nikunja Behari Das v. Jatindra Nath Kar, AIR 1956 Cal 613, a Division Bench of the Calcutta High Court, held as under:--
"A decision by necessary implication is as much res judicata as an express decision. That this is so in the case where Explanation IV of Section 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have always held that the principle of res judicata is applicable."
16. Actual adjudication on an issue in a suit, under the circumstances, would not be necessary to constitute res judicata in a subsequent suit. The decision given in the earlier suit impliedly can also decide the point which is in issue in a subsequent suit and the same would operate as res judicata.
17. Accordingly, it is held that the implied finding recorded in Exh. A-2 would operate as constructive res judicata between the parties and that Uttam Chand Bajaj was the tenant of the premises in dispute in his personal capa city and not M/s. Globe Publications as claimed by the tenant.
18. Next argument raised by the counsel for the tenant is that there is overwhelming documentary as well as oral evidence to show that the premises in question were let out for non-residential purposes by the previous landlord and the landlord-respondent has also treated the premises in question as non-residential and as such, the courts below have erred in holding that the premises in dispute arc a part of the residential building. For this, reliance has been placed upon Exh.R-1, an agreement between Bimla Devi and the landlord-respondent, wherein it has been stated that the premises in dispute are on rent with M/s. Globe Publications. Exh.RW-2/C to Exh.RW-2/ G are the receipts issued by the previous landlord in favour of M/s. Globe Publications. It is not in dispute that except the premises in dispute, the remaining portion of the building is being used for residential purposes. Even in Exh.R-1, the building has been described as a house bearing House Tax No. 6849, Ward No. 4, Railway Road, Ambala. All around this building, there are residential buildings and offices of lawyers at same distance from the building in question. There are certain shops as well. From this, counsel for the tenant wants me to conclude that the other buildings around the premises in dispute are being used for commercial purposes and the area in question has become semi-Commercial area where the ground floor of the building is being used for commercial purposes.
19. As against this, counsel for the landlord placed reliance upon a Full Bench judgment reported as Hari Mittal v. B. M. Sikka, 1986 (1) RGR 93, wherein it was held that a residential building let out for non-
resident) purpose without obtaining the written permission of the Rent Controller in terms of Section 11 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 would continue to be a residential building and the landlord is entitled to seek ejectment on the ground of bona fide personal requirement.
20. I find substance in the submission made by the counsel for the landlord. It has already been held by me that the premises in dispute were let out to Uttam Chand Bajaj in his personal capacity. Premises in dispute are a part of the residential building. The same may have been used by the tenant for commercial purposes but the same would not change the nature of the building. A residential building cannot be converted into a non-residential building even if it is let out to a tenant for business purposes without obtaining the written permission of the Rent Controller. Supreme Court of India in Rai Chand Jain v. Miss Chandra Kama Khosla, 1991 (1) RCJ 5, held as under :--
"The last contention that falls for consi-deration is whether the provisions of Section 11 of the said Act expressly prohibits the conversion of a residential building into a non-residential building "except with the permission in writing of Controller" creates a legal bar for such conversion and as such in case of such conversion even with the consent of the landlord whether the tenant is liable to ejectment from the demised premises. It has been urged on behalf of the appellant that the aid of this provision cannot be taken advantage of by the landlord who knowing fully of this legat prohibition has inducted the tenant into the demised premises for being used as printing press i.e. for commercial purposes. We have already considered herein before that the landlord is not entitled to waive this legal bar by giving his consent for such use. It is pertinent to refer in this connection once more the observations of this Court in Faqir Chand v. R. R. Bhanot (supra) to the following effect:
"The anxiety of the legislature is to prevent unauthorised user..... There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute..... We thus reach the conclusion that the lease in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him. Neither the clear words of the section, as in Waman Shriniwas Kini v. Rati Lal Bhagwandas, AIR 1959 SC 689, nor a consideration of the policy of the act lead us to the conclusion that the lease was void in its inception if it was for an unauthorised user"."
21. The judgment in Hari Mittal's case, 1986 (1) RCR 93 (supra) was quoted with approval in Rai Chand Jain's case, 1991 (1) RCJ 5 (supra).
22. Counsel for the tenant cited Gurbax Singh v. Kuldeep Singh, 1990 (1) RCJ 594; Balwant Singh v. Gurdip Singh, 1994 (1) RCR 93, Prem Chand v. Siri Ram (died) reported by his LRs, 1994 (1) RCR 410; Nahar Singh v. Surjit Singh, 1989 (2) RCJ 113 and Sant Ram v. Ramesh Chander, (1993-2) 104 Pun LR 94. All these judgments are distinguishable on facts. In all these judgments, the cases have been decided on their own facts and it has been held that the unit in occupation of the tenant was an independent unit and by custom, in a Mandi in the State of Punjab, the ground floor is used as a shop whereas the upper portion of the building is used for residential purposes. Such are not the circumstances of the present case. In the present case, only a portion of the ground floor is being used by the tenant for commercial purposes. The other portion, which is under tenancy with one Madan Lal Sharma is being used for residential purposes. The premises in dispute are not situated in a Mandi but are in a Municipal Ward in Ambala City where primarily residential buildings are situated. In some of the buildings, lawyers are residing. They have opened their offices. It is possible that in some of the buildings, a room or two are being used for commercial purposes. This will not give it a colour of a commercial area as in the Mandi where a ground floor of the building is used for commercial purposes whereas the upper portion is used for residential purposes. It is, therefore, held that the premises in dispute were not let out for non-residential purposes as claimed by the tenant and, in any case, the nature of the building cannot be changed only because the tenant had put the premises for use for commercial purposes. Nature of the building, under the circumstances, shall say to be residential building and the landlord has a light to get it vacated for his own bona fide personal requirement. A residential building does not get converted into a non-residential building only because the tenant has put it to use for non-residential purposes with or without the consent of the landlord.
23. Next question to be considered is regarding the bona fide requirement of the landlord for the building in dispute. The Courts below have recorded a finding of fact that the landlord is a lawyer having more than 25 years of practice. His wife is working as a Teacher and they have three sons who are living with them. One of the sons is a Chartered Accountant. It has been held that the premises in possession of the landlord are not sufficient keeping in view the size of his family and need. The landlord requires the premises in dispute for his own bona fide personal use and occupation being in need of the same, I find myself in agreement with the findings recorded by the courts below on this point and affirm the findings of fact recorded by the courts below.
24. For the reasons stated above, the revision petition is dismissed. Orders passed by the courts below are affirmed. Tenant-petitioner is, however, granted two months time with effect from today for vacating the premises in dispute and for handing over the possession to the landlord. No costs.
25. Petition dismissed.