Arun Kumar vs Shri Ashok Kumar Chhabra

Mahesh Grover, J.—This revision petition is directed against judgment dated 20.5.2009 passed by the Appellate Authority, Ambala by

which the appeal of the Respondent-tenant was accepted, the judgment dated 10.4.2008 of the Rent Controller, Ambala Cantt. was set aside and

the eviction application filed by the Petitioner-landlord was rejected.

An application u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 was preferred by the Petitioner for ejectment of the

Respondent from the room which was let out to him. It was pleaded by the Petitioner that the room was required by him for the purpose of setting

up business for his son. It was further pleaded that the room in question was being used by the Respondent as a shop.

The Respondent contested the application and disputed the right of the Petitioner to file the same as he was not owner of the tenanted premises.

An oblique attempt was also made by the Respondent to deny the relationship of tenant and landlord to say that the Petitioner had been taking rent

from him on the strength of misrepresentation. The Respondent had pleaded that the room was primarily residential and the municipal authorities

had also sanctioned the site plan accordingly and, therefore, the Petitioner could not get the same vacated on the ground that he wanted to set up a

shop therein for his son and put it to commercial use.

The Rent Controller accepted the plea of the Petitioner and directed the eviction of the Respondent, but the Appellate Authority reversed that

decision. While doing so, the Appellate Authority held that the nature of the room was residential and the municipal authorities had sanctioned the

plan accordingly. It also concluded that the Petitioner could not get the room vacated for commercial use.

Aggrieved by the findings of the Appellate Authority, the Petitioner has filed the instant petition.

Learned Counsel for the Petitioner has referred to the cross-examination of the Respondent to contend that he himself is running a shop in the

tenanted room since 1977 and, therefore, it does not lie in his mouth to say that the same cannot be used for commercial purpose by the landlord.

He further contended that the Respondent has tried to deny the relationship of tenant and landlord and once a tenant denies such a relationship, he

is not entitled to remain in possession of the tenanted premises when it is established to the contrary.

On the other hand, learned Counsel for the Respondent submitted that the room was residential in nature which has rightly been appreciated by

the Appellate Authority and once the tenanted premises was held to be residential, the Petitioner could not get it vacated for the purpose other than

residential. He relied upon a decision of this Court in Tejinder Singh Juggi v. Rajiv Chopra (died) through L.Rs. and Ors. 2009 (4) R.C.R. (Civil)

36 (P&H) wherein it has been observed that where a building which has been constructed as residential, but subsequently the same was

partitioned into two and one portion was permitted to be used for commercial purpose, then the same would not change the nature and character

of the building and the landlord was not entitled to eject the tenant on the ground of bona fide requirement.

I have heard the learned Counsel for the parties and have perused the material which has been produced before this Court during the course of

arguments.

The nature and character of the tenanted premises for the purpose of determination of the controversy in hand will not make much of difference

for two reasons - one is that after the decision of the Supreme Court in Harbilas Rai Bansal v. State of Punjab 1995 (2) R.C.R. (Rent) 672 (S.C.),

the ground of personal necessity is equally applicable to both residential and non- residential buildings and can be availed of by a landlord to seek

eviction of the tenant and the second is that the Petitioner had pleaded that the tenanted room was being used by the Respondent as a shop which

fact has not been denied by the latter in his cross-examination. In addition to this, the tenanted room is required by the Petitioner for setting up a

shop for his son which is again a commercial purpose for which the same is already being used by the Respondent since 1977.

Having regard to the aforesaid when the Respondent himself has admitted that since 1977, he has been using the tenanted room as a shop, he

cannot question the status of the building to be a residential so as to deny the Petitioner the benefit of the same very purpose for which it is being

used.

The judgment relied upon by the learned Counsel for the Respondent does not come to the rescue of the Respondent for the same reason. In

that case, the landlord had sought the eviction of the Respondent from a portion of the building which, although was residential and was required as

such for his bona fide need, yet, the same was being used for commercial purpose and this resulted in the finding being recorded against him. But,

in the instant case, the position is converse. The tenanted room is being used for commercial purpose by the Respondent and was required as such

by the Petitioner. The Appellate Authority was, thus, clearly in error in reversing the findings of the Rent Controller.

In the result, the instant petition is accepted, the impugned judgment is set aside and that of the Rent Controller is upheld. Consequently, the

Respondent is directed to be evicted from the tenanted room forthwith.