Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 455 (PNJ)

Gopi Ram v. Jagan Nath

2003-03-26

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Gopi Ram (hereinafter referred to as `the petitioner), who is tenant in the demised premises, has filed the instant revision petition against the order dated 28.9.1987, passed by Additional District Judge, Ferozepur, exercising the powers of Appellate Authority under the provisions of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act), vide which the appeal filed by Jagan Nath (hereinafter referred to as `the respondent), who is landlord, against the order of dismissal of his ejectment application by the Rent Controller has been allowed and the order of ejectment has been passed against the petitioner on the ground of personal necessity. 2. The brief facts of the case are that the demised premises was rented out by the respondent to petitioner in the year 1955 for the purpose of doing business. From the very inception of the tenancy, the petitioner is doing the business of Karyana shop in the demised premises. In the year 1984, the respondent filed ejectment application against the petitioner under Section 13 of the Act for his ejectment on the ground of personal necessity by alleging that the demised premises is part of the residential building, therefore, the respondent is legally entitled to get the same vacated on the ground of personal necessity. This application was resisted by the petitioner on the grounds that the demised premises is non-residential building; the same was let out to him by the respondent for doing business and from the very inception, the same is being used for the purpose of business. Therefore, it was pleaded that the premises in question cannot be got vacated on the ground of personal necessity. It was further pleaded that the respondent has not pleaded the requirement as provided under Section 13(3)(ii) of the Act for getting the demised premises vacated on the ground of personal necessity. 3. After considering the evidence led by both the parties and hearing the arguments addressed by their respective counsel, the learned Rent Controller dismissed the ejectment application while holding that the demised premises is a non-residential building and the same cannot be ordered to be vacated on the ground of bona fide requirement for residential purpose. 3. After considering the evidence led by both the parties and hearing the arguments addressed by their respective counsel, the learned Rent Controller dismissed the ejectment application while holding that the demised premises is a non-residential building and the same cannot be ordered to be vacated on the ground of bona fide requirement for residential purpose. It was found by the Rent Controller that the demised premises was let out by the respondent to the petitioner for the purpose of doing business and from the very inception of tenancy, the same is being used for commercial purpose. While rejecting the contention of the respondent that the demised premises being a residential house could not be converted into non-residential one without the permission of the Rent Controller even if it was let out for non-residential purpose, it was held that such premises cannot be got vacated by the landlord for the purpose of his personal requirement to use it as residential house, because from the very beginning the premises was let out for commercial purpose. 4. Feeling aggrieved against the aforesaid order of the Rent Controller, the respondent filed an appeal before the Appellate Authority. The Appellate Authority, while relying upon the Full Bench decision of this Court in Hari Mittal v. B.M. Sikka, 1986(1) RCR(Rent) 92 (P&H) : 1986 PLR 1, has allowed the said appeal and passed the order of ejectment against the petitioner. It was held that when a residential building is let out for non-residential purpose by the landlord without obtaining the written permission of the Rent Controller in terms of section 11 of the Act, the building in question will continue to be residential building and the landlord will be entitled to seek ejectment of the tenant on the ground of bona fide requirement. Against the said order, the instant petition has been filed by the petitioner. 5. Shri Ravinder Chopra, learned counsel for the petitioner, submitted that both the Courts below have recorded a finding of fact that the demised premises was let out by the respondent to the petitioner as a shop for the purpose of doing business. It was also held that the demised premises is being used as a shop for the commercial purpose from the very inception of the tenancy till the filing of the ejectment application. It was also held that the demised premises is being used as a shop for the commercial purpose from the very inception of the tenancy till the filing of the ejectment application. He further submitted that the learned Appellate Authority has wrongly relied upon the decision given by this Court in Hari Mittal v. B.M. Sikka (supra), which was entirely on different facts. He submitted that merely because the demised premises was part of the residential building does not make it residential building, particularly when the respondent has not placed on record any material which establish that the entire building was constructed as a residential building. He further submitted that in Hari Mittals case (supra), the question was whether the residential building can be converted into non-residential one by putting it for non-residential use; and that case related to a building in the Union Territory of Chandigarh where the user of every building is specified by law. In that context, it was held that the residential building cannot be converted into a non-residential one without the prior permission of the Rent Controller. However, in case of the petitioner, the respondent did not place on the record any sanctioned scheme under the Punjab Municipal Law or Punjab Town Improvement Act, in order to show that the building, of which the demised premises forms part, cannot be used for any other purpose except residential. Learned counsel for the petitioner further submitted that in similar circumstances where the demised premises was let out for commercial purpose by the landlord and the same was being used for commercial purpose from the very inception of the tenancy, it was held that such building would be non- residential building and it would not liable to be vacated on the ground of personal necessity. In this regard, learned counsel referred to the decisions in Lal Chand v. Bal Kishan, 1987(2) RCR 283, Dev Brat Sharma v. Dr. Jagjit Mehta, 1990(2) R.C.J. 431, Nirmal Singh v. Kuldip Raj, 1992(2) RCR(Rent)483 (P&H) : 1992(2) PLR 693, Balwant Singh v. Gurdip Singh, 1994(1) RCR 93, Prem Chand v. Shri Ram, 1994(1) RCR(Rent) 410 (P&H) : 1994(1) PLR 490, Ram Gopal v. Sher Singh, 1995(2) RCR(Rent) 300 (P&H) : 1995(2) PLR 445, and a recent decision of this Court in Parmeshwari Devi v. Krishan Chander, (Civil Revision No. 2501 of 1992, decided on 30.10.2002). 6. 6. Having heard learned counsel for the petitioner and on perusal of the record, I am of the opinion that the impugned order passed by the Appellate Authority cannot be sustained. The respondent has taken a stand in his ejectment application that though the demised premises was let out for commercial purpose but the same is part of the residential building. The Rent Controller as well as the Appellate Authority, on appreciation of evidence, have recorded a finding of fact that the demised premises was let out to the petitioner by the respondent for the purpose of running a shop. It has also been found that from the very inception of the tenancy, the demised premises is being used as a shop for commercial purpose. The aforesaid findings recorded by both the Courts below have not been challenged by learned counsel for the respondent, while arguing the case. In addition to that the respondent has not brought on record any sanctioned scheme under the Punjab Municipal Law or Punjab Town Improvement Act in order to show that the building in question, of which the demised premises forms part, cannot be used for any other purpose except residential. As per the site plan Ex. A2 available on the record, filed by the respondent, it is clear that the demised premises is having the entry in the street. There is no bathroom or kitchen attached thereto. From the nature of construction shown in the site plan, it appears that the demised premises were not constructed for residential purpose. There is no material on the record produced by the respondent which suggests that the demised premises was constructed only and exclusively for residential purpose. Thus, from evidence available on the record, it is clear that the premises in question which was let out to the petitioner, though forms part of residential building, but it was never constructed for residential purpose nor it was let out by the respondent to the petitioner for residential purpose. Therefore, it cannot be termed as a residential building. 7. In my view, the Appellate Authority has wrongly relied upon the Full Bench decision of this Court in Hari Mittals case (supra). That case is entirely on different footings. Therefore, it cannot be termed as a residential building. 7. In my view, the Appellate Authority has wrongly relied upon the Full Bench decision of this Court in Hari Mittals case (supra). That case is entirely on different footings. In that case, the building which was rented out was a residential building as per the building plans of the Union Territory of Chandigarh, where use of every building has been specified by law. In that context, it was held by this Court that a residential building cannot be converted into non-residential one without the prior permission of the Rent Controller. Clause (a) of Section 2 of the Act defines `building as any building or part of a building let out for any purpose whether being actually used for that purpose or not. The shop is thus, a building falling within the scope of definition of building. In Lal Chand v. Bal Kishan (supra), it was held by this Court that merely because these two shops in the form of building are integral part of the larger building as known in the common parlance, the predominant part of which is residential in character, it is difficult to hold that these shops are a residential building and not a non-residential one. The shops have admittedly been let out to the petitioner solely for running his business. Therefore, these shops are to be treated as non-residential building within the meaning of clause (d) of Section 2 of the Act. Similarly in Balwant Singh v. Gurdip Singh (supra), where one room was let out for the purpose of running a shop and the same was being used from the very inception as shop, this Court has held that the ejectment cannot be sought on the ground that the room in occupation, of the tenant form part of residential building. Similarly, in Ram Gopal v. Sher Singh (supra), where a portion of the building was let out for the purpose of running a shop and was being used as such, this Court held that the tenant cannot be ordered to be evicted on the mere fact that the shop was a part of residential building. Similarly, in Ram Gopal v. Sher Singh (supra), where a portion of the building was let out for the purpose of running a shop and was being used as such, this Court held that the tenant cannot be ordered to be evicted on the mere fact that the shop was a part of residential building. In similar circumstances, this Court in Parmeshwari Devi v. Krishan Chander (supra) has held that when the premises having only one entrance from the main road was let out for running a shop the same cannot be held to be a residential building, only because it was part of the residential building. 8. In view of the aforesaid discussion, I allow the instant revision petition and set aside the impugned judgment dated 28.9.1987 passed by the Appellate Authority and dismiss the ejectment application filed by the respondent. Revision allowed.