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2013 DIGILAW 47 (PNJ)

Darshana Sharma and Another v. Vinod Veena and Another

2013-01-15

JASWANT SINGH

body2013
Jaswant Singh, J. Petitioners(tenants) are in revision under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) against the concurrent findings returned by both the courts below, whereby the eviction petition filed by the respondent no.1(landlady) was partly allowed on the ground of personal necessity only by the learned Rent Controller, Jalandhar vide its order dated 14.10.2010. Against the said order, two appeals were preferred, one by the landlady and other by the tenants. Vide common order dated 11.09.2012 learned Appellate Authority, Jalandhar partly accepted the appeal filed by the landlady by stating that tenants are liable for eviction on the grounds of change of user and also material additions and alterations apart from personal necessity. However, the appeal filed by the tenants was dismissed. In brief, facts of the case are that the respondent(landlady) Dr. Mrs. Vinod Veena filed an ejectment petition under Section 13 of the Act for ejectment of the petitioners(tenants) from the demised premises which is a house in Jalandhar on the ground that the petitioners(tenant nos.2 & 3) are sub tenants who have been inducted by tenant no.1(respondent no.2) without any authority and thus, they are liable to be evicted. A plea of demised premises having been converted into a non residential building without the written consent of the landlady was also taken as it was stated that a school is being run by the petitioners(tenants) whereas the building is earmarked for residential purposes. It was also stated in the ejectment application that the petitioners(tenants) have made material additions and alterations in the demised premises and thus they are also liable to be ejected on this ground as well. Finally, it was also averred that the premises was required by the landlady for her own use and occupation because her son Udham Kumar is a qualified doctor and he intends to start a clinic as well as use the premises for his residence after he gets married. Upon notice, all the averments were denied by Surjit Lal Dhingra respondent no.2 herein/tenant no.1 and it was stated that the necessity that has been projected is absolutely false and frivolous. It was also denied that there is any kind of subletting by him in favour of petitioners herein. Remaining grounds were also denied and prayer was made for dismissal of the petition. It was also denied that there is any kind of subletting by him in favour of petitioners herein. Remaining grounds were also denied and prayer was made for dismissal of the petition. Petitioners(tenant nos.2 & 3) filed their separate written statement, whereby a stand similar to that of Surjit Lal Dhingra/respondent no.2 was taken by them and prayer was made for dismissal of the petition. Rejoinder was filed wherein the entire contents of the petition were reiterated and those of the written statements were denied. From the pleadings of the parties, issues were framed. Both sides led their evidence in support of their respective claims and after appreciating their evidence, learned Rent Controller allowed the ejectment application on the ground of personal necessity only. Against the said order, two appeals were preferred, one by tenant nos.2 & 3(petitioners herein) and other by the respondent no.1(landlady). Appeal filed by the respondent no.1(landlady) was allowed partly, whereby the Appellate Authority held the petitioners(tenants) to be guilty of change of user and also for making material addition and alterations in the demised premises. Consequently, the appeal filed by the petitioners(tenants) was dismissed. Hence, the present revision petition. I have heard learned Counsel for the petitioners(tenants) and have gone through the case file carefully with his able assistance. Learned Counsel for the petitioners(tenants) has argued that both the courts below have wrongly accepted the plea of personal necessity of the respondent(landlady) as there is no evidence at all to prove the same. Learned Counsel for the petitioners(tenants) has also argued that the learned Appellate Authority has committed grave illegality by reversing the findings of the learned Rent Controller on the ground of material addition and alteration as there is no evidence on record to prove the said fact. Finally, it was argued that there is no change of user as well because it is proved from the record that the school is being run since the year 1966 in the demised premises, still the Appellate Authority has wrongly held the school to have started from May 1993. After hearing learned Counsel for petitioners(tenants) and perusing the paper book, this Court is of the opinion that present revision petition is devoid of any merit and same deserves to be dismissed. After hearing learned Counsel for petitioners(tenants) and perusing the paper book, this Court is of the opinion that present revision petition is devoid of any merit and same deserves to be dismissed. As far as the first plea regarding there being no personal necessity is concerned, this Court is of the opinion that there is no base in the arguments that have been raised by the learned Counsel for the petitioners, as it is evident from the record that respondent no.1(landlady) had retired on 31.08.2004 as a doctor. It is also evident that son, daughterin- law and daughter of respondent no.1(landlady) are also doctors and landlady at present is operating a clinic from her old house which is also in Jalandhar. It has also come on record that the said premises is not sufficient for the respondent(landlady) to run a proper clinic/hospital. Although, no doubt it has come in evidence that son of respondent no.1(landlady) and her daughter in law are both permanently posted in Ganganagar, Rajasthan, however, this fact does not dent the case of respondent no.1(landlady) as the need of respondent(landlady) still remains as there is nothing brought on record to the contrary by the petitioners(tenants) that would prove that respondent(landlady) does not intend to run a hospital from the demised premises along with her husband. Hence, respondent(landlady) being a doctor herself can exercise her option to use the premises as a clinic-cumresidence and the same cannot be said to be a mere desire and motivated one only on the ground that her daughter-in-law and son are permanently posted and are having permanent source of livelihood. As far as the second ground of change of user is concerned, this Court is of the opinion that the learned Appellate Authority, Jalandhar has rightly held that there is a change of user by the petitioners(tenants). A perusal of the judgment/order passed by the learned Appellate Authority reveals that Darshana Sharma, petitioner no.1 herein had deposed that the demised premises was taken for running a school which is admittedly, a commercial activity. A perusal of the record further reveals that the learned Appellate Authority has recorded a positive finding to the effect that the site plan Ex.P-1 shows the demised premises to be a house and on one side thereof, a school is being run. A perusal of the record further reveals that the learned Appellate Authority has recorded a positive finding to the effect that the site plan Ex.P-1 shows the demised premises to be a house and on one side thereof, a school is being run. However, the learned Appellate Authority has also observed that the letters Ex.P-2 & P-3 vide which respondent no.2/tenant no.1-Surjit Lal Dhingra had taken the premises on rent refers the demised premises to be a house and thus, residential in nature. Admittedly, no permission was taken from the Rent Controller to convert the residential premises into commercial premises for the said user. Hence, this Court is in absolute agreement with the findings of the learned Appellate Authority, that without there being any direction from the Rent Controller to change the nature of the building, it has to be held that there was a change of user by the petitioners(tenants). Finally, the findings by Appellate Authority regarding material alterations having been made by the petitioners(tenants) is concerned, this Court is also in agreement with the findings of the learned Appellate Authority. It is evident from the record that PW-3 Parmod Bhardwaj, Building Expert, who is an expert witness, was examined by the respondent no.1(landlady) who prepared his detailed report Ex.P-6. This witness has deposed that he found material additions and alterations which impair the value and utility of the demised premises and set out detailed reasons in his report Ex.P-6. A perusal of the record further reveals that the Appellate Authority had scrutinized the report Ex.P-6 along with testimony of PW-3 Parmod Bhardwaj which showed that the age of the demised premises is 70 to 80 years. It was observed by Appellate Authority that in the report it is mentioned that few cement plaster patches were clearly visible and a verandah has been converted into room by fitting steel frame on the side of the street. It is also not in dispute that the steel frames are not part of original construction. Thereafter numerous other material additions and alterations made by petitioners(tenants) in building were also observed by the learned Appellate Authority, which proves that the petitioners(tenants) had constructed new doors and changed the plan of the entire building. It is also not in dispute that the steel frames are not part of original construction. Thereafter numerous other material additions and alterations made by petitioners(tenants) in building were also observed by the learned Appellate Authority, which proves that the petitioners(tenants) had constructed new doors and changed the plan of the entire building. There is no counter to the said observations by the learned counsel for the petitioners so as to compel this Court to take a different view from the view that has been taken by the Appellate Authority. No other point was urged before me during the course of arguments. In view of the above, finding no merit in the present revision petition, the same is hereby dismissed.