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2005 DIGILAW 389 (PNJ)

Green Roadways v. Santokh Singh

2005-03-16

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. The tenants are the petitioners before this Court. 2. The landlord Santokh Singh had sought the ejectment of the tenants from the premises in question on the ground of personal necessity. The learned Rent Controller upheld the necessity of the landlord but declined the order of ejectment on the ground that the premises in question was a non-residential building. 3. The matter was taken up by the landlord in the appeal. The learned appellate authority re-appraised the entire evidence and on such re-appraisal came to the conclusion that the premises in question, having a kitchen, bathroom and other small rooms, was in fact a residential premises. The necessity of the landlord to occupy the premises for his personal requirement was also upheld by the learned appellate authority. In view of the aforesaid fact, the learned appellate authority while reversing the order of the learned Rent Controller ordered the ejectment of the tenant-petitioners. 4. The tenant-petitioners have now approached this Court through the present revision petition. 5. I have heard Shri S.C. Kapoor, the learned Senior Counsel assisted by Shri Ashish Kapoor, the learned Counsel for the petitioners and with his assistance have also gone through the record of the case. 6. The learned senior counsel has vehemently argued that there was absolutely no material with the learned appellate authority to come to the conclusion that the premises in question was a residential premises. On that basis, it has been argued that since the premises had been found to be non-residential premises, therefore, the landlord was not entitled to seek the ejectment of the tenants on account of his personal necessity for residential purposes. 7. Having gone through the record of the case and after perusal of the findings recorded by the appellate authority, I do not find any merit in the present revision petition. 8. The learned appellate authority has categorically made the following observations: "Now it has to be seen whether from the site plan Ex.AW-3/1 and RW-7/A, the building appears to be residential or non-residential. The witnesses examined by the applicant-appellant have deposed that this building was constructed as a residential house; whereas the witnesses examined by the respondent have stated that it is a non-residential building and is being used for non-residential purpose since the inception of the tenancy. The witnesses examined by the applicant-appellant have deposed that this building was constructed as a residential house; whereas the witnesses examined by the respondent have stated that it is a non-residential building and is being used for non-residential purpose since the inception of the tenancy. Now a reference may be made to the statement of RW-10 Kuldip Singh who has deposed during his cross-examination that there was no latrine on the ground floor. He also deposed to the effect that there is no bath-room in the property in dispute. Looking to the site plan he admitted that bath-room and latrine have been shown in the site plan Ex.RW-7/A. He has deposed that these have been wrongly shown in the site plan. It appears that RW-10 Kuldip Singh has wrongly stated that there is no latrine and bathroom on the ground floor in order to show that the building in question is not a residential building. The respondents have also shown the place of kitchen as a godown. It does not appeal to me that the owner of the house could have constructed a small godown 12 x 6-1/2. Such a small room is constructed only to be used as a kitchen. Small godowns of the size of 12 x 13 are not constructed as two small bed rooms have been shown in the rear portion of the house. If this place was to be used as a godown then only one big hall would have been constructed because the big room can be used as a godown more conveniently. It was argued by the learned Counsel for the respondents that facilities like kitchen, bath-room and latrine are also provided sometimes in commercial building. At the same time, he has referred me to the definition of non-residential and residential building as given in Section 2 of the Rent Act which reads as under: "2(d) non-residential building means a building used solely for the purposes of business or trade: Provided that 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." 2(g) "Residential Building" means any building which is not a non-residential building." The learned Counsel has argued that the perusal of the definition of non-residential building shows that it is a building which is used only for the purpose of business. He has further referred me to the proviso to this sub-clause and has argued that the perusal of proviso will show that a building cannot be said to be non-residential for the only reason that a part of the same is used as non-residential building. His contention is that in case it is taken that the amenities like kitchen, bath-room latrine are there in the building became (because ?) such amenities are required to be used by a person kept for guarding the premises. I do not accept this contention of the learned Counsel for the respondents to be correct because normally such amenities are not provided in small commercial buildings. Such amenities are sometimes made available in big commercial buildings where some employees have to be kept for the guarding of the premises. On the front of the building there are only small rooms 9-9" x 12 and 12 x 8-9". If the building had been originally constructed for its being used for commercial purposes, then big rooms to be used for commercial purposes should have been constructed on the front side. The AWs examined by the appellant-applicant have deposed that the building is a residential building and earlier it was being used for residential purposes. However, the witnesses examined by the respondents have stated that the premises is a commercial building and it was never used for residential purposes. They also deposed to the effect that the building in question is located in a commercial area. RW-1 Shri Jaswant Singh Dogra has stated during his cross-examination that his house is located in front of the demised premises and that he is living in this house since his birth. The perusal of his statement shows that there are also residential buildings in this locality. It does appears that with the development of the town certain buildings are being used for commercial purposes, but it cannot be said that this area was purely commercial area and there were non-residential buildings. It was vehemently argued by the learned Counsel for the respondents that the applicants in this case have not led any documentary evidence to show that the building was constructed as a residential building. It was vehemently argued by the learned Counsel for the respondents that the applicants in this case have not led any documentary evidence to show that the building was constructed as a residential building. He has contended that the applicant or its previous owner must have constructed the building by getting permission of the Municipal Committee and the site plan could be produced from the Municipal Committee to show that this building was constructed as a residential building." 9. In view of the aforesaid categorical finding of fact recorded by the learned appellate authority which is not shown to be contrary to the record of the case, I do not find any justification to interfere in the present revision petition. In view of the aforesaid discussion, the present revision-petition is without any merit and the same is accordingly dismissed.