Punjab-Haryana High Court
Jatinder Dev Nanda vs Rajinder Singh on 23 March, 1998
Equivalent citations: (1998)119PLR727
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Jatinder Dev Nanda (hereinafter described as 'the petitioner') directed against the judgment of the learned Rent Controller, Gurdaspur dated 15.5.1997. By virtue of the impugned judgment the learned Rent Controller had passed an order of eviction against the petitioner awarding two months' time to the petitioner to vacate the property.
2. The relevant facts are that S. Inder Singh was an advocate. His son Rajinder Singh preferred a petition for eviction Under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') asserting that the property in dispute is a residential building. It had been let out to the petitioner vide a rent deed dated 30.3.1971 for residential purpose. The respondent is the son of Inder Singh. After the death of the Inder Singh, he had become the landlord of the petitioner with respect to the property in dispute. There was a family partition, as a result of which the respondent became the sole landlord. He was serving in Central Bank of India as Chief Cashier of the said bank. He was thus a specified landlord under the "provisions of the Act and was holding post in connection with the affairs of the Central Government. Be retired on 30.11.1991. Contending that he intends to reside in the disputed property and does not possess any other suitable accommodation in the local area of Gurdaspur, the petition for eviction was filed.
3. The petitioner had filed an application Under Section 18-A of the Act seeking leave to contest the application preferred by the respondent. It had been allowed by the Rent Controller. In the Reply filed, the petitioner took up the plea that the building in question is a non residential building. It was Inder Singh who had let out the building in question to the petitioner. No rent agreement had been executed. At the asking of Inder Singh he had signed one blank paper. Thereafter in the year 1972-73 the rent was enhanced to Rs. 250/- P.M. It was asserted that the property in question was taken on rent for running of the school. Even it was denied that respondent is a specified landlord or is owner of the property in question. It was pointed that earlier respondent and his brother had filed a petition for eviction which was dismissed by the Rent Controller, Gurdaspur on 23.1.1995. However, the plea that respondent has since retired was not denied.
4. The learned Rent Controller had framed the issues and both the parties were allowed opportunity to adduce the evidence. On appraisal of the evidence it was held that the property in question had been let out for residential purposes. In coming to this conclusion, reliance was placed on the rent agreement signed by the petitioner. It was held that merely because if the school is being run in the demised property will not convert it into a non residential building. The respondent was held to be a specified landlord and accordingly since he had retired, an order of eviction referred to above was passed. Aggrieved by the same, the present revision petition has been filed.
5. An application has been filed on behalf of the petitioner under Order 41, Rule 27 CPC seeking permission to lead additional evidence. The petitioner pointed that rent is being paid with respect to the school building. The receipts which had been produced in the earlier litigation between the parties clearly show that the property had been let out for non residential purpose. Permission was claimed to produce the said receipts in the evidence in present revision petition.
6. The law is well settled that a person cannot be allowed to lead additional evidence and fill up lacunas. The said receipts were to the knowledge of the petitioner and at this stage allowing the same to be produced would only permit the petitioner to improve upon his existing evidence and in that manner fill up the gap therein. Consequently, it is not a fit case where the said evidence should be allowed to be produced.
7. As is apparent from what has been recited above, the controversy between the parties was confined as to if the building is a residential or non residential. There was no dispute that the respondent has since retired The relevant extract of Section 13-A of the Act reads:-
"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 extension of the East Punjab 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 its is let out in part or parts."
The reproduced extract of Section 13-A of the Act leaves no doubt that amongst other grounds a landlord must establish that he does not own or possess any other suitable accommodation in the local area in which he intends to reside. But it must pertain to a residential building or a scheduled building. Admittedly, in the present case it is not a scheduled building and thus the controversy was as to if it is a residential building or not. Residential building has been defined in Section 2(g) of the Act and reads:-
"2(g). "residential building" means any building which is not a non residential building."
Keeping in view the said definition one necessarily has to refer to the definition of non-residential building because a residential building is one which is not a non-residential building. The expression "non-residential building" finds a mention Under Section 2(d) of the Act which defines it to be:-
"2(d). "non-residential building" means -
(i) a building being used solely for the purpose of business or trade.
(ii) a building let under a business or trade and also for the purpose of residence.
Explanation: For the purpose of this clause, 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".
8. On the strength of definition of "non-residential building" learned counsel for the petitioner urged that the property is being used as a school since the year 1971. The signatures of the petitioner were obtained on a blank paper which is being converted into a rent agreement. He further argued that continuous use of the property for non-residential purpose clearly establishes that it was a non-residential building and Section 13-A of the Act was not available to the respondent. On the contrary respondent's learned counsel argued that it is a residential building Under Section 11 of the Act. No permission has been taken from the Rent Controller to convert the residential building into a non-residential building and in any case the purpose of letting has been mentioned in the rent agreement. On behalf of the respondent strong reliance was placed on Full Bench decision of this Court in the case of Shri Had Mittal v. Shri B.M. Sikka, (1986-1)89 Punjab Law Reporter 1 (F.B.). In the cited case the property in question was situated in Union Territory, Chandigarh. It was a residential building. No permission for change of user had been take. The Full Bench held that since no permission of the Rent Controller had been taken, keeping in view Section 11 of the Act even if the residential building is let out for non-residential building, it would continue to be a residential building in the absence of permission Under Section 11 of the Act.
9. However, the present building is not situated within the Union Territory, Chandigarh. It is in Gurdaspur. The Supreme Court in the case of Dev Brat Sharma v. Dr. Jagjit Mehta, (1990-2)98 P.L.R. 637 (S.C.) was concerned with a property which was a part of residential house at Jalandhar. The landlord had filed a petition for eviction alleging that it was required for his own use and occupation. A report was called and it was found that there was no sanctioned scheme operative within the Jalandhar City. A similar argument as in the present case was advanced. It was held that in the absence of any sanctioned scheme, the purpose of letting remained material and the decision of the Supreme Court with reference to the cases of property at Chandigarh will not apply. In paragraphs 4 and 5 it was held :-
"4. The main thrust of the appellant's counsel's contention has been that the hour's is residential and the user could not be changed and the tenant could not have put up a clinic in a part of the house. We find that there has been no change of user in this case inasmuch as the tenancy was created for the purpose of locating the clinic and this distinctive feature takes the case out of the ratio emerging from some of the precedents of this Court on which reliance was placed.
5. Counsel for the appellant wanted to rely on the oral evidence but we did not think it appropriate in an appeal by special leave to allow evidence to be read Taking the broad features of the matter available on the record, we are inclined to agree with the High Court that the landlord was not entitled to evict the tenant and the conclusion reached by the High Court is unassailable. We direct the appeal to be dismissed but there would be no order as to costs."
In the present case also the attention of the Court has not been drawn towards any scheme operating at Gurdaspur. When there is no such scheme, the ratio of the decision in the case of Hari Mittal (supra) will not help the respondent.
10. Confronted with that position, respondent's learned counsel has pressed into service the judgment of the Supreme Court in the case of Harbilas Rai Bansal v. The State of Punjab and Anr., (1995-1)112 P.L.R. 227 (S.C.). In the cited case the Supreme Court was concerned with provisions of Section 13 of the Act rather than Section 13-A of the Act. The provisions of the Act prior to amendment of the Act in 1956 were uniformally applicable to residential and non-residential building. In the year 1956 the Act was amended. It was so done with a view to restrict the rent and safeguard the mala fide eviction of tenants. The Supreme Court held that amendment by virtue of which a landlord could not seek eviction for personal requirement in case of non-residential building was unconstitutional.
However, the said decision has no role to play with respect to evictions Under Section 13-A of the Act. As already pointed out above the scope of Section 13-A is different. It provides a summary remedy by seeking eviction of tenants but it confines itself amongst other grounds to residential buildings or scheduled buildings. The said question had been considered by a Single Judge of this Court in the case of Smt. Savinder Kaur v. Pindi Paint Stores Agency, (1997-1)115 P.LR. 272. It was held that specified landlord can seek eviction of tenant from residential or scheduled building and not from non-residential building. I find myself in respectful agreement with the said view point for the reasons already recorded above. Therefore, this particular plea does not help the respondent.
11. Necessarily one has to go back to the facts and decide as to whether it is residential or non-residential building? Ex.A3 is the rent agreement purported to be dated 30.3.1971. It. is signed by the petitioner. Relying upon this document it had been contended that property had only been let out for residential purpose. The petitioner's claim is that his signatures were obtained on a blank paper and lateron this document is being utilized as a rent agreement. Certain peculiar facts in the present case leads one to conclude that this contention of the petitioner is not without substance.
12. The petitioner has proved that earlier a petition for eviction had been filed by the respondent and another, Ex.R6 is the copy of that eviction application filed dated 24.9.1988. One of the ground alleged was that the house in question is being used as a school which is affecting the value and utility of the same and that the property is bona fide required by the landlord-respondent and another for their own use and occupation. The petitioner had contested the said eviction application and denied that the property was let out for residential purpose. The plea of the petitioner was that property was let out for running of a school and it is being used as such. The copy of the reply is Ex.R7. Issues were framed and copy of the same is Ex.R8. One of the issues framed was if the petitioner is liable to be ejected as he has changed the use of the property. On 13.5.1992 the respondent and another through their counsel had made a statement withdrawing the petition for eviction referred to above. Accordingly, vide order copy of which is Ex.R9 it was dismissed as withdrawn. In other words, the question that is being agitated in the present petition was earlier in controversy between the parties. But the respondent had withdrawn that petition. It is true that there was no formal adjudication of rights and the dismissal for the petition will not operate as resjudicata. But certain other facts thus precipitate that respondent did not want adjudication of the said controversy. It was very much alive therein. In addition to that there is no evidence that the property at any time was ever used for residential purpose.
13. Rajinder Singh appeared as AW-4. He proved the rent agreement and testified that it was executed by the petitioner in favour of his father. However, he did not know when the tenancy was created. He could not tell the date, month and year when the school was started in the said property. The statement of the petitioner on the contrary is that he has always been running school in the said property.
Ex.R3 is the receipt of rent given by the landlord to the petitioner dated 11.9.1971. It recited about receipt of the rent from the petitioner and on top of the same it mentions the address of the suit property :-
"KNOWLEDGE HUMILITY DISCIPLINE VIVEKANAND Blessed Model School Behind Bus Stand & Hanuman Chowk GURDASPUR.
Similarly Ex.R4 is the receipt of rent dated 15.1.1972 which shows that rent was received from the petitioner as Principal V.N. School Gurdaspur and once again the address of the school has been printed on top of the receipt. These receipts show that right from the time namely about 20 years ago, when the petition was filed the school was being run in the suit property. At no time till the year 1988 or so any objection was taken. It makes one to believe the version of the petitioner that property was let out for non-residential purpose and not for residential purpose. Continuous use of the property as such makes one to conclude in that direction. When such is the transaction, the Court will tear the mask and see the real face of the transaction. It will not permit the landlord to set a smoke screen to create a ground of eviction and in that view of the matter, the impugned judgment of the learned Rent Controller cannot be sustained.
14. For these reasons, the revision petition is allowed and the impugned judgment is set aside. Instead the application for eviction is dismissed.