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2012 DIGILAW 1513 (PNJ)

Mohd. Hanif v. Ravinder Kumar

2012-10-16

K.KANNAN

body2012
JUDGMENT Mr. K. Kannan, J.: (Oral) - The civil revision petition is against the order of ejectment passed by the appellate Court under the Hayana Urban (Control of Rent and Eviction) Act of 1973. Of the several grounds urged, the Rent Controller found that the landlord had not established the case and had dismissed the petition. In appeal by the landlord, the appellate Court reversed the findings of the Rent Controller on (i) the ground of personal necessity of the landlord’s requirement for residential purpose; (ii) for change of user of the building by the tenant for putting up a non-residential use. The appellate Court found as regards the personal requirement of the premises that the landlord had admitted to the ownership of yet another Door No.1-A/257, NIT, Faridabad, but it was a nonresidential property let out for commercial activity to one M/s Blue Steel Private Limited. Referring to the recitals in the rent deed which specifically contained a recital that the user of the premises shall be only for residential purpose, the Court held that the property was therefore only residential and the landlord could not have sought for eviction of the other building in 1-A/257 for his own personal need. Even otherwise, if there was more than one building of which the landlord was the owner, both of which were not in his possession, it was always left to the choice of the landlord as to which property he would secure eviction. The existence of another property in the name of the landlord himself was not in dispute, but if it was in the hand of yet another tenant and it was put to a nonresidential use. Evidently, the landlord could not have directed eviction in respect of the said property. 2. The other property of which the landlord was said to be the owner in the written statement of the tenant was the property in 1-B/2-3 and the Court found that the property was actually a property owned by his son Ravinder Kumar and Shanti Devi and even that property was also not actually in their possession, but had been already let out to tenants for which an independent eviction petition had been filed. The appellate Court had noted the fact that subsequent petition was filed by the son and the wife on 24.01.1997. The appellate Court had noted the fact that subsequent petition was filed by the son and the wife on 24.01.1997. The Court found, under the circumstances, that the landlord could not have been denied the right of eviction if he was not shown to own any other residential house or that he had not vacated the residential premises in occupation. 3. I find even the Act which sets out a rule of pleading and proof under Section 13(3) that a landlord applying for an order directing a landlord to put in possession is required only to show that “he is not occupying another residential building” in the urban area concerned and has not vacated such building. It is nobody’s case that the landlord was occupying any other building within the same urban area. The reference to ownership to the property standing in the name of wife and son is not even a statutory mandate under the scheme of the Rent Control Act. However, in this case, when the statement has been brought pointing out to the availability of yet another property in the name of the wife and son, the landlord has made a clean breast of himself and has sought to explain that even in respect of the said property, there was still an action for eviction that was being pursued. 4. The petition makes a mention of other buildings as well, one was with reference to House No.11/9, Pant Nagar, Jangpura New Delhi. The reference to the property was that this was a small house measuring 35 square yards and that it is not in the same urban area, but at Delhi and that it is not sufficient for his living and that he intended to shift to Faridabad. The other property of which he is in possession is a house in 1-A/188, NIT, Faridabad which has been taken on rent by the landlord in his effort to relocate himself from New Delhi to Faridabad but this occupation itself is on a premise to his own landlord that he will vacate it in a few months. A landlord who is himself in occupation of only a tenanted premise and who gave evidence to the effect that he has taken only a temporary accommodation till he secures eviction of his own premise, there is nothing to suspect the bona fides. A landlord who is himself in occupation of only a tenanted premise and who gave evidence to the effect that he has taken only a temporary accommodation till he secures eviction of his own premise, there is nothing to suspect the bona fides. I would, therefore, find that the appellate Court was justified in reversing of the judgment of the Rent Controller and directing eviction on the said ground. 5. As regards the grounds for change of user of the premises, the case must be rested on the bare admissions of the tenant himself. The rent note clearly stipulates that the property which was offered for rent was only a residential premise. There is an express averment in the rent note that it shall be used only for a residential purpose. The contention in defence by the tenant is that it is a non-residential building. It is an admitted case that he has put it to a non-residential use. This itself ought to be taken as a sufficient ground for a landlord to complain of a change of user. A building obtains the moniker as residential or non-residential by the way it is put to use. There is nothing inherently residential or nonresidential about the character of a building itself. It is in user that the building becomes residential or otherwise provided of coarse, there is no zoning requirement about the nature of user in an urban locality governed by local body legislation. In this case, if the landlord had let the property for residential use only, the moment the Court finds that the tenant’s contention that it is a non-residential property is not correct, then there is a ground established for eviction that the tenant is guilty of change of user. 6. The reasoning adopted by the Court below ordering eviction accords with law and evidence placed before it. I will find no reason to interfere with the same in revision. The order of the appellate authority directing eviction is maintained and the revision petition is dismissed.