Pritam Singh vs Satish Chander

G.C. Garg, J.—This revision is directed against the order dated July 20, 1987 of the Rent Controller, Hoshiarpur whereby he dismissed the petition filed by the petitioner-landlord, u/s 13 A of the East Punjab Urban Rent Restriction Act (for short ''the Act''). Learned Rent Controller after granting leave to the tenant to contest the petition framed a number of issues and afforded the parties an opportunity of leading evidence in support of their respective contentions. Learned Rent Controller under issue-1 returned a finding that the petitioner was a specified landlord. However, under issues 6 and 7 he came to the conclusion that the petition was barred by constructive res judicata and the petitioner failed to prove that he required the room in question for his personal use and occupation. He consequently dismissed the petition. It is in this situation, the landlord has filed the present revision.

Learned counsel for the petitioner first submitted that the findings recorded by learned Rent Controller under issues 6 and 7 are not based on evidence and in fact there is nothing available on record to show that the petition is barred by the principle of res judicata. Learned counsel for the respondent-tenant tried to justify the findings recorded by learned Rent Controller but he could not, by reference to any evidence on record, oral or documentary, bring to my notice that the premises in question were earlier held to be a shop by learned Rent Controller in the ejectment petitions filed by the landlord. Learned counsel, however, submitted that the room in question was rented out to the respondent-tenant as a shop and the same is being used as a shop since, the inception of the tenancy and in the two petitions earlier filed by the landlord, the premises were held to be shop and, therefore, petition u/s 13-A of the Act was not maintainable and was barred by the principle of constructive res judicata.

The respondent-tenant has produced on record copies of the two petitions earlier filed against him by the landlord seeking his ejectment, as Exhibits R-1 and R-2. He also produced copies of the written statements filed by him to those petitions as Exhibit R-3 and R-4. A reading of the previous ejectment petitions and the written statement filed therein goes to show that the petitioner herein sought ejectment of the respondent from the premises in question on various grounds such as change of user and personal necessity under the provisions of Section 13 of the Act. These petitions were resisted by the respondent and were ultimately dismissed. However, copies of the orders of the Rent Controller passed in the two aforesaid ejectment petitions have not been produced on record to show as to on what grounds the same were dismissed. There is no other documentary evidence available on record in that behalf. I have scanned the entire oral evidence led by the parties with the help of the learned counsel. No question was put to the landlord who appeared as his own witness as AW-1, to the effect that the earlier petitions were dismissed after holding that the premises now in dispute were let out for use by the respondent as a shop and, therefore, ejectment could not be ordered on the ground of personal necessity under the provisions of Section 13-A of the Act. The tenant while appearing as his own witness also did not state even a word on this point. Thus there is nothing to conclude or to hold that it was held by the learned Rent Controller in both or any of those ejectment petitions filed u/s 13 of the Act that the premises in question had been let out as a shop and, therefore, that finding would operate as res judicata in the present proceedings. In Ramesh Chand and Others Vs. Board of Revenue and Others, a Full Bench of Allahabad High Court while considering the provisions of Section 11 of the CPC observed that before a plea of res judicata can be considered, it must be pleaded at the proper stage and in order to establish such a plea, copy of judgment and decree relied upon should be produced in evidence. In the present case as already noticed, there is nothing on the record to show that the premises in question were held to be a shop in any of the two earlier ejectment proceedings between the parties. Thus the bar created by section 14 of the Act or the principle of constructive res judicata is not applicable to the facts of the present case. The finding to the contrary recorded by learned Rent Controller under- issues 6 and 7 thus cannot be sustained and the same is reversed, and it is held that the respondent has failed to show that the present ejectment petition is barred by the principle of constructive res judicata or by the provisions of Section 14 of the Act.

Learned counsel for the petitioner further submitted that learned Rent Controller again erred in returning a finding against the petitioner to the effect that the petitioner has failed to prove that the premises in question are required by him for his personal use and occupation. Learned counsel took me through the entire evidence available on record to canvass that a clear case for personal necessity was made out and the learned Rent Controller misread the evidence while coming to the contrary conclusion.

After hearing learned counsel for the parties and having regard to the facts and circumstances of this case and the evidence available on record. I am clearly of the opinion that the finding regarding personal necessity recorded by the learned Rent Controller is again not sustainable. It is rather proved on record that the premises in question are needed by the landlord for his personal use and occupation. A reference to the site plan Exhibit P-1 goes to show that the tenanted portion is a part of the residential house and it has two openings, one in the adjoining room and the other in the court yard. The adjoining room and the court yard are admittedly in possession of the petitioner-landlord. Ration Cards Exhibit P-2 and P-3 further support the contention of the landlord that nine members of the family are staying in the house in question which consists of three rooms, a verandah, kitchen, bath room and a court yard besides the room in occupation of the respondent-tenant. Ration card Exhibit P-2 is in the name of the petitioner and it indicates that he along with four other members of the family is staying in the house in question. Exhibit P-3 another ration card issued in the name of petitioner''s son and relating to this very premises shows that four members of his family are staying in that house along with the petitioner and latter''s other family members. Thus in all, nine members are staying in the house. Learned Rent Controller did not dispute that family of the petitioner consists of nine members. However, he returned a finding against the petitioner by observing that one of his sons is employed in the Punjab State Electricity Board at Hoshiarpur and is drawing house rent and, therefore, he would be residing in a different house in Mohalla Prem Nagar as alleged by the respondent-tenant. There is, however, nothing on record to show that the son of the petitioner who is employed in the Punjab State Electricity Board at Hoshiarpur is staying in a house other than the house in question. From the mere fact that the son of the petitioner is drawing house rent, it could not be inferred that he is residing in a different house in Mohalla Prem Nagar. An employee posted at the place of his posting even if residing in his own house with his father is entitled to draw house rent. It is not necessary that an employee must be in occupation of a house on rent so as to be eligible for drawing the house rent. In fact, as already noticed, the landlord has produced a ration card of one of his sons which clearly goes to show that his son along with his family is residing in the premises in question though one of the married sons of the petitioner is employed at Ludhiana and has along with his family is residing at Ludhiana. But the members of the family residing at Hoshiarpur in the house in question are proved to be nine, besides the married sons and daughters and their children visit the petitioner on various occasions. Thus, nine members of a family or even for that matter five or six members of a family which include his two married sons besides himself and his wife and the children of the married sons, the accommodation in possession of the petitioner is quite inadequate, there being only three rooms, besides the room in question. Learned Rent Controller has again erred in observing that the petitioner had failed to prove that he had not vacated any other room without any reason. He drew inference against the petitioner by reference to the earlier two ejectment petitions by observing that the petitioner himself admitted that the rent of one room was increased after his petition for ejectment was dismissed and he rented out another room thereafter. In fact after appearing the evidence on record, the position emerges otherwise, namely, two rooms on the front were earlier rented out by the petitioner to the respondent. However, after the previous litigation or during that period, the tenant vacated one room and the rent of the other room was increased. Thus it has not been proved that the landlord has failed to prove that he had vacated a room. Rather it shows that one of the rooms earlier in the tenancy of the tenant came into the possession of the petitioner after the same was vacated by the tenant and the rent of the other rooms was increased. Thus on the evidence produced in the case, I am satisfied that the petitioner has been able to satisfactorily show that he requires the premises in question for his personal use and occupation and the finding to the contrary recorded by the learned Rent Controller is not sustainable.

Learned counsel for the respondent, however, made feeble attempt to show that premises in question is a shop and the petition deserves to be dismissed on that ground. However, on a consideration of the matter and having regard to the evidence available on record especially the site plan Exhibit P-1, it is apparent that the tenanted premises is part and parcel of residential house and it has two openings connecting this room with other portion of the residential house. In such a situation, this Court on a number of occasions held that such premises cannot be held to be a shop. I am thus of the clear opinion that the tenanted premises, the room in this case is not a shop but is the part of the residential building.

For what has been stated above, this revision is allowed and the order under revision is set aside. Accordingly the petition u/s 13-A of the Act is granted by ordering ejectment of the respondent from the premises in dispute. The tenant is, however, granted two months'' time to vacate the premises in question subject to his paying to the landlord or depositing with the Rent Controller the amount of rent upto date within two weeks from today. There shall however, be no order as to costs.