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2011 DIGILAW 210 (PNJ)

Ashok Kumar v. Raj Kumar

2011-01-19

RAKESH KUMAR JAIN

body2011
Judgment Rakesh Kumar Jain, J. 1. The tenant is in revision against the order of the learned Appellate Authority, Hisar, dated 17.3.2006, by which order of the learned Rent Controller, Hisar, dated 19.10.2005, has been set aside and the ejectment petition filed by the respondent/landlord has been accepted. 2. In brief, the facts of the case are that the respondent/landlord had filed eviction petition under the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short, the Act), in respect of a shop which is a portion of a building beating MCH No. XVIII-674, Old No.696/467/1, situated at Mohalla Sanian, Hisar, on the ground of non-payment of rent and also on the ground that at the time of death of his mother Smt.Darshna Devi, he was a minor as his Date of Birth is 30.1.1979 and has neither any shop in Hisar, State of Haryana as well as in India nor has vacated any shop since 1949 and the shop in question is required for his personal use and occupation because he wanted to carry on the business of cycle repairs. 3. The petition was contested by filing a reply and the averments made therein were denied. Since the petition was filed by the landlord on the ground that he was a minor at the time when his mother (who was the landlady) had died, required the premises for his personal necessity, had invoked the provisions of Section 13 (3-A) of the Act, but he failed to prove the ingredients thereof that the demised premises is a part of non-residential building, rather finding had been recorded by the learned Rent Controller that it is a part of a residential building, therefore, the provisions of Section 13 (3-A) of the Act were not applicable. 4. The respondent had filed an appeal before the learned Appellate Authority in which finding of fact with regard to the nature of building was reversed and it was held that the demised premises is a non-residential building, therefore, the provisions of Section 13 (3- A) of the Act are squarely applicable. 5. Aggrieved against the order of reversal, the present revision petition was filed in which dispossession was stayed on 11.7.2006 and on 29.1.2008, it was admitted with interim order to continue. 6. 5. Aggrieved against the order of reversal, the present revision petition was filed in which dispossession was stayed on 11.7.2006 and on 29.1.2008, it was admitted with interim order to continue. 6. Up to this stage, Mr.Akshay Bhan, Advocate, was appearing on behalf of the respondent, but when the case was listed for final hearing on 16.12.2010, a statement was suffered by Mr. Santosh Sharma, Advocate, working in the office of Mr.Akshay Bhan,Advocate, that:- "Shri Santosh Sharma states that the respondent/landlord has taken away the brief from him, therefore, they are not aware about the alternative arrangement made by him. Counsel further says that he will send a necessary communication to the respondent-landlord regarding the date and pendency of the case. List on 10.1.2011". 7. Today, Mr. Santosh Sharma,Advocate, stated that since the brief has been taken away, therefore, they are left without address of the respondent/landlord for the purpose of communication. Be that as it may, if the brief has been taken away by the respondent, then it is his duty to make arrangement for the purpose of his appearance before this Court as the case is being shown in the printed regular list w.e.f. 4.1.2011 and is also available on the internet. The case was adjourned from 10.1.2011 to 12.1.2011 and then for today by order of the Court, but still, no body has come forward to represent the respondent/landlord. In such a situation, the Court is to presume that the respondent/landlord is not interested in pursuing the present revision petition. 8. Opening his arguments, learned counsel for the petitioner has submitted that there is a patent error in the impugned order passed by the learned Appellate Authority in rejecting the finding recorded by the learned Rent Controller about the nature of building. He submits that in order to understand the controversy, three provisions of the Act, are required to be noticed, namely (i) Section 13 (3-A), 2 (d) and 11 of the Act. 9. He submits that in order to understand the controversy, three provisions of the Act, are required to be noticed, namely (i) Section 13 (3-A), 2 (d) and 11 of the Act. 9. It is urged that Section 13 (3-A) has basically four ingredients (i) In case of a non-residential building, a landlord who stands retired or discharged {.........} from the armed forces of the Union of India, (2) who was a minor son at the time of death of the deceased landlord, (3) if he requires it for his personal use, may within a period of three years from the date of retirement or discharge or (4) if he is a minor, on attaining the age of eighteen years, as the case may be, can apply to the Controller for an order directing the tenant to put the landlord in possession. 10. There is an exception to the provision that where a landlord has obtained possession of a non-residential building under this subsection, he shall not be entitled to apply again for the possession of any other non-residential building of the same class. 11. Insofar as Section 2 (d) is concerned, it talks of "nonresidential building" which is used mainly for the purpose of business or trade and partly for me purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there: "Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building even though a small portion thereof is used for the purpose of residence" 12. Section 11 puts a bar for the landlord/tenant to convert the residential building into non-residential building without the permission in writing of the Rent Controller. 13. Now the question involved in this revision petition is "whether the landlord has successfully proved by leading cogent evidence that the property in dispute is a part of a non-residential building or residential building"? 14. Learned counsel for the petitioner has pointed out from the site plan Ex.PW6/A in which the landlord himself has shown the property as House No.467-1. Now the question involved in this revision petition is "whether the landlord has successfully proved by leading cogent evidence that the property in dispute is a part of a non-residential building or residential building"? 14. Learned counsel for the petitioner has pointed out from the site plan Ex.PW6/A in which the landlord himself has shown the property as House No.467-1. Even otherwise, from the bare look of the property in dispute, it appears that there is no other passage to the rear portion of the building except from the passage which is leading from the main Municipal Committee road. The landlord (PW-1) when appeared as his own witness has admitted that he has constructed the shop in dispute in his house. Similarly, the neighbour who has been examined as PW-2 has also stated in his examination-in-chief that the shop is constructed in the house. Father of the landlord who appeared as PW-3 has also admitted in his cross examination that the demised premises was purchased in 1977 and there are four other rooms. From the oral evidence of the landlord himself, it is amply proved that the demised premises is a part of residential building. In that situation, the question is whether the provisions of Section 13 (3- A) of the Act would be applicable as has been applied by the Court below?. The answer to this question is emphatically "No", because Section 13 (3-A) specifically applies to a non residential building and unless and until, the Court gives a categorical finding on the basis of appreciation of evidence that the demised premises is a non-residential building, the said provisions cannot be invoked. 15. Thus, in view of the above discussion, I find that the learned Appellate Authority has committed an error in appreciating the evidence available on record while holding that the demised premises is a part of non-residential building. 16. Hence, the present revision petition is allowed and the impugned order passed by the learned Appellate Authority is hereby set aside with costs through out.