Punjab-Haryana High Court
Avinash Arora, Manager, Tagore Niketan ... vs Dr. J.S. Gujral on 7 April, 1992
Equivalent citations: (1992)102PLR138
JUDGMENT A.P. Chowdhri, J.
1. Dr. J. S. Gujral. respondent is a Professor and Head of Department of Cardio-Thoracic Surserv' in the P.G.I., MER, Chandigarh. He was due to retire on attaining the age of superannuation on March 31, 1992. He made petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949, as applicable to the Union Territory of Chandigarh before the Rent Controller, Chandigarh. He claimed to be a specified landlord and prayed for immediate possession of the premises for his own occupation. By order dated September 24, 1991, the learned Rent Controller, Chandigarh, granted the tenant leave to contest the petition. Thereafter Tagore Niketan Educational Society, a Society registered under the Societies Registration Act was impleaded as a respondent. An affidavit was filed on behalf of the said Society for leave to contest the petition. By order dated December 23, 1991 the tenant's application for leave to contest was rejected Aggrieved by the order, the tenant has preferred this revision
2. Mr. S. C. Kapoor, Senior Advocate, learned counsel for the petitioners, has raised these contentions : He submitted that the Rent Controller granted permission to the tenant to contest the petition vide order dated September 24, 1991. The said order was not challenged by the landlord by filing a revision there-against and the same had thus become final between the parties. The Rent Controller had no power of review and there was also no ground to hold differently at a later stage and, therefore, the subsequent order refusing permission to the tenant to contest the petition was illegal and without jurisdiction. His further submission is that there were ejectment proceedings between the present petitioner and the previous landlord in which it was held that the building having been (sic) out for non-residential purposes was a non-residential building and the said finding operates as res judicata and it is not open to the landlord to plead that the premises is residential Mr. Kapoor further pointed out that admittedly the premises having been let for running a school which was non-residential purpose, the same became a non-residential building He placed strong reliance on Dr. Jagjit Singh Mehta v. Dev Brat Sharma, 1989 H. R. R. 680. Mr. Kapoor pointed out that the decision in Dr. Jagjit Singh Mehta's case had been approved by their Lordships of the Supreme Court in Dev Brat Sharma v. Dr. Jagjit Mehta, 1990 H. R. R. 522. Lastly, it was submitted that the definition of the expression "residential building" had undergone a change because of the amendment in the relevant definitions by Central Act 42 of 1982. After the amendment it was submitted, the building, in question, could not be considered to be residential building and, therefore, the petition under Section 13-A of the Act was itself not maintainable.
3. Mr. R. S. Bindra, Sr. Advocate, learned counsel for the respondent, has controverted each one of the above contentions of Mr. Kapoor.
4. I have carefully considered the respective contention and have gone through the case law cited at the Bar.
5. A perusal of the order dated September 24, 1991, whereby Mr. Avinash Arora was given permission to contest shows that upto that stage, the only resptndents were Avinash Arora. Manager, Tagore Niketan Model Middle School and Tagore Niketan Model Middle School. The plea raised by Avinash Arora was that in fact, the tenant of the premises was Tagore Niketan Educatioal Society (Registered). The order further shows the learned Rent Controller negatived all other pleas of the tenant but came to the conclusion that it was necessary to go into the question as to whether the tenant in fact, was the Tagore Niketan Educational Society which is evidently a juristic person. It was, in these circumstances, that permission to contest was granted. Admittedly, thereafter the landlord impleaded the said Educational Society as the respondent. After the impleading of the said Educational Socity as a respondent and on a fresh hearing of the matter, the learned Rent Controller has declined permission to the tenant to contest the ejectment petition. From these facts it is abundantly clear that when permission was given, the real tenant was not before the Rent Controller. It is further manifest that the various pleas raised by Mr. Avinash Arora and for that matter the Model Middle School were negatived. It is not that at that stage the various pleas or any one of them had been accepted and the Rent Controller sought to review his order at a later stage. In short, the leave was graned only on the limited question that the real tenant had not been impleaded and, in any case, the said matter required to be gone into. When the Educational Society (Regd ) was impleaded that question stood conceded by the landlord and nothing remained even according to the findings of the Rent Controller as recorded in : the order dated September 24, 1991, which would be inconsistent with the order impugned in the present revision. The impugned order cannot, therefore, be taken to amount to review of the earlier order and the first contention of Mr. Kapoor must be rejected.
6. With regard to the finding that earlier the premises had been held to be non-residential, there is no dispute that against the said previous order Civil Revision No. 487 of 1989 is pending in this Court. In other words, the question has not been finally heard and decided, It is still pending. It may also be pointed out that copy of that finding has not been placed on record. In a rent decision in Om Parkash v. Shiv Butt Prasher, 1991 H. R. R. 561. It was held by J. V. Gupta, C. J. (as be then was) that where residential building was let out for a non-residentiat purpose without the permission of the Rent Controller under Section 11 of the Act, the building still remained residential and the earlier judgment in which the building in question was held to be non-residential did not operate as res judicata. For these reasons, I have no difficulty in rejecting the second submission of Mr. Kapoor.
7. This brings me to a considerations of the third and last submission of Mr. S. C. Kapoor. It was contended that the premises had been let out on March 13, 1978, for "Residence-cam-Educational Institution or either of the two" purposes. That being so, the lease was not in respect of a residential house and the ground' under Section 13-A was not available. He placed strong reliance on Dr. Jagjit Singh Mehta's case (supra). Learned counsel pointed out that the said decision had been approved by their Lordships of the Supreme Court in Dev Brat Sharnta's case (supra).
8. The contention of Mr. R. S. Bindra, Senior Adocate, learned counsel for the respondent, is that a Full Bench of this Court in Hari Mittal v. B. M. Sikka , (1986-1) 89 P L R (F.B), which is holding the field, laid down that a residential building let out for non-residential purpose did not get converted into a non-residential building unless requisite permission in writing of the Rent Controller under Section 11 of the Act was seceured and in such a case the landlord was entitled to ejectment of the ground of his bona fide personal requirement. Learned counsel distinguished the decision in Dr. Jagjit Singh Mehta's case (supra).
9. After considering the matter carefully, I find that, sitting singly I am bound by the law laid down by the Full Bench of this Court in Hari Mittal's case (supra). Admittedly, no permission in writting of the Rent Controller was obtained for conversion of the residential building in question into a non-residential one. The decision in Dr Jagjit Singh Mehta's case (supra), is clearly distinguishable on the ground that before letting out the building for non-residential purposes the landlord had carried out structural alterations to the building so as to make the same suitable for business or trade. No such alterations were made out in case of the building in question in the present case. In my view, the law laid down by the Full Bench is fully applicable to the facts of the case in hand and, therefore, I have no difficulty in rejecting the contention that the landlord by having let out the premises both for residence as well as for business had impliedly converted the building from residential to non-residential one
10. For the foregoing reasons, I find no merit in the revision petition, which is accordingly dismissed.