Amar Nath vs Ramesh Kumar and Others

V.K. Jhanji, J.—This is landlord''s revision petition directed against the order of the appellate Authority whereby appeal filed by the tenant was accepted and in consequence thereof, ejectment petition was dismissed.

Tirath Ram was the original tenant. After his death in the year 1975, his sons came in occupation of the shop which consists of four rooms. Their ejectment was sought by the landlord (petitioner herein) on the ground of non-payment of rent, material impairment of the value and utility of the shop, change of user and premises having become unfit and unsafe for human habitation. Ejectment petition on contest, was allowed by the Rent Controller only on the ground of change of user and shop having become unfit and unsafe for human habitation. On appeal by the tenants, order of the Rent Controller was set aside and consequently, ejectment petition was dismissed. Landlord has now impugned the order of the appellate Authority in this revision petition.

Mr. M.L. Sarin, learned counsel for the landlord, vehemently contended that the landlord has successfully established on record the change of user by the tenants as well as the building having become unfit and unsafe for human habitation. In support of his arguments, he has made reference to the statement of witnesses as well as report of the Local Commissioner and report of the Expert. In reply, Mr. Sukant Gupta, learned counsel for the tenants, has submitted that out of the total four rooms, one room is being used for the purpose of guarding the shop at night and this cannot be taken to be change of user. With regard to the other ground, he has submitted that the shop has not become unfit and unsafe for human bahitation as alleged by the landlord.

After hearing the learned counsel for the parties and on perusal of the record, I find no merit in the revision petition. Admittedly, Halwai business is being carried on in the shop. From the report of the Local Commissioner as well as from the statement of the witness, it is clear that two rooms in front are being used for the purpose of Halwai business, third room as store and fourth one, partly for the purpose of residence. Each room is connected with a door. Thus, it is evident that dominant purpose of the demised premises is still the Halwai business and only a small portion thereof is being used by the tenants for their residence. It is also in evidence that portion which is being used for residence by the tenants is in the rear. In these circumstances, the tenants cannot be ejected on the ground of change of user as the dominant purpose of the demised premises is still the business which is being carried on by the tenants. With regard to the other ground, suffice it to say, this very ground was taken in an earlier petition. The Rent Controller vide his order dated 24.10.1980 dismissed the ejectment petition, thereby deciding this very ground against the landlord. The appellate Authority on appreciation of evidence, has given valid and cogent reasons for not accepting this ground taken in the present ejectment petition, which was filed in the year 1982.

Consequently, the revision petition is dismissed. No costs.