Prem Chand vs Beni Madhav

R.S. Pathak, C.J.—This is a tenant''s revision petition arising out of proceedings for eviction u/s 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act, 1949.

There is a double storeyed building in Samkhetar Mohalla, Mandi. It is occupied by the Petitioner as tenant. The Respondent-landlord applied u/s 13(3)(a)(i) of the Act for eviction of the Petitioner. He alleged that the ground floor of the building was used as a bakery by the Petitioner while the first floor was used as his residence. He claimed that the building was needed for his own occupation. Besides, it was alleged, the bakery in the ground floor constituted a nuisance to the occupiers of the buildings in the neighbourhood. He also alleged that by installing an oven in the ground floor for the purposes of the bakery the Petitioner had materially impaired the value and utility of the building.

The application was resisted by the Petitioner, he denied the allegations made by the Respondent. He asserted that the entire building was used for the bakery and shop and was, therefore, nonresidential in character. He denied that the Respondent needed the building for his own occupation, and also that the smoke from the bakery was a source of nuisance. According to him the premises have been rented for housing a bakery and were being used as such.

The Respondent''s application for eviction was dismissed by the controller on July 5, 1968, but on appeal the order was set aside and the case was remanded for fresh decision on proper issues being framed. The parties led evidence a second time. On June 13, 1972, the Controller dismissed the application. An appeal against his order has been allowed by the Appellate Authority by its order dated September 23, 1974. The Appellate Authority has affirmed the finding of the Controller that the Respondent required the building for his own occupation, but while reversing the remaining findings of the Controller the Appellate Authority has held that the building was used by the tenant partly as residential accommodation and partly as non-residential. The Appellate Authority has also held that the use of the premises as a bakery with an oven emitting smoke constituted a nuisance to the neighbours, and further that the building had been considerably damaged by the manner of its use. In the view that the building was partly residential and partly non-residential, it declared that the building fell within the scope of Section 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act. On the aforesaid findings the Appellate Authority set aside the order of the Controller dismissing the Respondent''s application for eviction and made an order instead directing the Petitioner to restore possession of the premises to the Respondent.

It is clear that it is only if the building is used exclusively for the purpose of business or trade that it can be described as a "nonresidential building". That is apparent from Section 2(d) of the Act. If, however, the building is used partly for a residential purpose and partly for the purposes of business or trade it cannot be classed as a non-residential building, and must, therefore, be treated as a residential building within the meaning of Section 2(g) of the Act. Section 2(d) defines the expression "non-residential building" as meaning a building which is being used solely for the purposes of business or trade. Section 2(g) defines the expression "residential building" as meaning a building which is not a non-residential building.

It is urged on behalf of the Petitioner that the finding of the Appellate Authority that a part of the building is employed for a residential purpose is erroneous. On perusing the evidence on the record, it seems to me clear that while the ground floor was used for housing the bakery the first floor was employed for the purposes of residence. There is ample material in support of that conclusion, and I have no hesitation in agreeing with the Appellate Authority in that behalf.

It is contended by learned Counsel for the Petitioner that the entire building was let out to the Petitioner for the purpose of the bakery, and it is the purpose for which the building is let out which determines whether it is a residential building or non-residential. I am unable to agree. The definitions set out in Section 2(d) and Section 2(g) of the Act clearly point to the materiality of the nature of the user. In Dr. Sewa Singh v. Smt. Rabinder Kaur and Anr. 1970 RCR 423 the High Court had found that the house had been let out originally for a residential purpose and it had held that it could not, at the option of the tenant, be converted into a "scheduled building" within the meaning of Section 2(a) of the East Punjab Urban Rent Restriction Act, on appeal, the Supreme Court laid down:

It is impossible to hold on the language of the definition that the original purpose of the tenancy is decisive of the question whether it is a scheduled building. In terms it is enacted that a residential building will be deemed to be a scheduled building if it is used by by a person engaged in one or more of the professions, partly for his business and partly for his residence.

It is apparent that the Supreme Court laid emphasis on the nature of the actual user of the building, and did not rest its decision solely by reference to the original purpose for which the building had been let out. In John Tinson and Co. Pvt. Ltd. v. Shri Amar Chand Sood and Anr. 1971 H.L.R. 41 the Delhi High Court observed that if the building in question had been used at any point of time for a residential purpose it could not be considered to be a non-residential building. It may be pointed out that the witnesses who gave testimony on behalf of the Petitioner have admitted that the upper portion of the building is being used as residential accommodation now.

On the aforesaid considerations, I am clear in my mind that the building in question must be treated as a residential building, and therefore, the application made by the Respondent u/s 13(3)(a)(i)) of the Act is maintainable.

It is then contended on behalf of the Petitioner that the Respondent as landlord was bound to establish not only that he required the building for his own occupation and thus satisfied Clause (a) of Section 13(3)(a)(i), but that before he could obtain an order of ejectment he had also to prove that the conditions set out in Clauses (b) and (c) of that provision were fulfilled. It is pointed out that unless the facts making out the conditions set out in Clauses (a), (b) and (c) of Section 13(3)(a)(i) are all pleaded in the application for eviction, the application is incompetent. Reliance is placed on Lal Chand v. Parshotam Lal 1974 P.L.R. 594. The contention is without foundation. Paragraph 2(a) of the application for eviction expressly pleads that the landlord has not occupied any other residential building in the urban area of Mandi town, and that he has not vacated any such building without sufficient cause after the commencement of the Act in the said urban area. That part of the pleadings has not been controverted by the Petitioner in his written statement. It will also be noticed that the point has been raised for the first time in arguments and has not been set out in the grounds detailed in the revision petition.

The Controller and the Appellate Authority have concurrently found that the Respondent is in need of the residential accommodation for his own occupation. On the material before me I am not satisfied that the concurrent findings should be interfered with.

Two points remain for consideration. The first is whether the Petitioner is liable to eviction on the ground that he has been guilty of such an act as is likely to impair materially the value and utility of the building. The second is whether he has been guilty of such act and conduct as amounts to a nuisance to the occupiers of the buildings in the neighbourhood. So far as the first point is concerned, the evidence is all one way. The Respondent''s testimony establishes that the installation of the oven in the building has produced considerable damage reducing the value of the building. The appellate authority has accepted the testimony, and I see no reason why a different view should be taken. This ground is sufficient for holding that even in respect of the ground floor of the building the Petitioner is liable to eviction.

In the circumstances, it is not necessary to consider whether the Petitioner is guilty of committing a nuisance in relation to neighbouring occupiers.

I am of opinion that there is no force in this revision petition.

The revision petition is dismissed with costs.