Dr. Subhash Chander vs Giant Joginder Singh, Sewing Machine Repairer, Bhag Singh Road, Gurdaspur

J.V. Gupta, J.—This is a landlord''s petition in whose favour eviction order was passed by the Rent Controller, but was set aside in appeal.

Dr. Subhash Chander-landlord sought the ejectment of his tenant Joginder Singh from the room of a residential house which was converted into a shop by the tenant. According to the landlord, one Smt. Shanti Devi was the original owner of a big building out of which the Petitioner purchased 1/2 share Lateron he got partitioned and became the owner of the specific rooms in the said building. Out of this building, one room which was converted into a shop was in occupation of the Respondent as a tenant on the monthly rent of Rs. 12/-He was running his business in that room. Ejectment was sought, inter alia, on the ground that the landlord is a medical practitioner since 1974 and is carrying on his business in a lane in a room which is quite insufficient for his needs. He is residing in the portion of the joint house owned by his father and it is also insufficient for his requirement. This building was purchased by him for his residence and for running his business as a doctor for dispensary etc. Therefore, he needs the room for his personal use and occupation. The present room is on the ground floor and opens on the road and it being a front portion of the building, is most essential and suitable for his medical practice. The stand taken by the tenant was that the landlord has no personal requirement nor the said room could be got vacated for the purpose as it was a commercial premises and was let out as such from the very inception of the tenancy. The same is being used as shop and, therefore, the tenant was not liable to eviction The learned Rent Controller founde that in the present case it is proved that the landlord is living in the house at the sufferance of his father and not in his own right and is. therefore, not occupying any other residential building. He further found that the landlord purchased the house for his comfortable living and medical practice and, therefore, he was in bona fide need of the same Ultimately, it was concluded that the landlord has succeeded to prove his bona fide necessity for his personal retirement The contention of the tenant that the demised premises was a shop and not a room of a residential building was negative It was found that though the said room was being used as a shop by the tenant, but since it formed part of the residential house, the tenant was liable to ejectment on the ground of bonafide requirement.

In appeal, learned appellate authority reversed the said finding of the Rent Controller as it was found that the portion of the building let out to a tenant was an independent unit itself, Thus, according to the appellate authority, the premises let out to the tenant was for a commercial purpose and, therefore, it will be termed as non-residential unit notwithstanding that it forms part of bigger building which is a residential building. In view of these findings, eviction order was set aside.

Learned Counsel for the Petitioner submitted that it has been concurrently found by both the authorities below that the demised premises formed part of the residential building. Even if it was used as a shop by the tenant still the landlord was entitled to eject the tenant for his bona fide requirement. According to the learned Counsel the earlier view of this Court reported in (1985) 87 P.L.R. 605 was accepted, whereas lateron by a Full Bench of this Court reported in (1986) 89 P.L.R. 1 and Vinod Kumar Arora Vs. Surjit Kaur, , it was overruled He also pointed out that the other tenant Bansi Lal, who was occupying another room adjacent to the room in dispute was also ejected by the landlord and his revision petition in this Court was dismissed on 31st July, 1987, i.e., Civil Revision No. 1678 of 1983, and that also formed part of the residential building. On the other hand, learned Counsel for the Respondent submitted that the demised premises is a shop and is being used as such from the very inception of the tenancy. It opens in the bazar and, therefore, it could not be held that simply because it formed part of a residential building, it ceases to be a non-residential building. In support of this contention, he referred to (1984) 86 P.L.R. 662 and (1987 2) 92 P.L.R. 222.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record.

It has been concurrently found by both the Courts below that the demised premises forms part of the residential building. The mere fact that the said room of a residential building was being used by the tenant as a shop, did not convert the building into non-residential building. From the evidence on the record also it is quite evident that it is a part of the bigger residential house as such. The mere fact that it opens in the Bazar does not make it a non-residential building unless it was as so constructed as to be used for commercial purpose only. The mere fact that it was given for business purpose was not sufficient to hold that it had become commercial premises. As held by the Supreme Court in Vinod Kumar Arora Vs. Surjit Kaur, no residential building could be converted into non-residential building without the prior permission of the Rent Controller.

In these circumstances, the view taken by the appellate authority was wholly wrong and illegal, whereas the view taken by the Rent Controller in this behalf was perfectly valid. As regards bona fide requirement of the landlord is concerned, it could not be disputed, keeping in view his family members and his personal requirement for opening a clinic, dispensary etc.

Consequently, this petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller is restored with costs. However, the tenant is allowed three months time to vacate the premises provided all the arrears of rent are deposited with the Rent Controller within one month with a further undertaking in writing that after the expiry of the said period, vacant possession will be handed over to the landlord and rent for the said period will be paid in advance by the tenth of every month.