Rajinder Kumar vs Rajwant Rai Sood and Others

J.M. Tandon, J.—Rajinder Kumar Petitioner is the owner landlord of the house in dispute situate in Sirhind Mandi,(Tehsil Sirhind) which is in occupation of Rajwant Rai Sood Respondent No. 1 as a tenant at Rs. 250/- per month. The Petitioner filed an ejectment petition against the Respondents on various grounds, namely, (i) non-payment of arrears of rent;(ii) personal requirement; and (in) subletting to Subash Chand (respondent No. 3) without the writ tenconsent of the landlord.

Respondent No. 1 contested the ejectment petition. The arrears of rent was tendered on the first date of hearing.

The Rent Controller framed the following issues:

Whether the premises in dispute are required by the applicant for his personal use and occupation ?

Whether both the Respondents have started medical practice in the premises in dispute contrary to the terms of the rent note and thus have changed the user of the building ? If so to what effect ?

Whether the Respondent No. 1 has sublet the portion of the premises in dispute to the Respondent No. 3 without the written consent of the applicant ?

Whether the premises in dispute falls within the definition of scheduled building ? If so to what effect ?

4-A. Whether the applicant has not occupied any other residential bulding in the urban area of Sirhind Mandi ?

4-B. Whether the applicant has not vacated any other building without sufficient cause after the commencement of Urban Rent Restriction Act in the urban area of Sirhind ?

The Rent Controller found issues Nos. l, 4-A and 4B in favour of the Petitioner and issues Nos- 2, 3 and 4 against him. The ejectment petition was consequently dismissed by the Rent Controller vide order dated May 19, 1977. The Petitioner filed an appeal against the order of the Rent Controller which was dismissed by the Appellate Authority vide order dated December 22, 1979. It is against this order that the present revision is directed.

The Rent Controller and the Appellate Authority have found that the Petitioner genuinely requires the house in dispute for his personal use and occupation. He has been non-suited on the interconnected twin grounds that the tenant (respondent No. 1) has not changed the user of the house in dispute in terms of Section 13(2) (ii)(b) of the East Punjab Urban Rent Restriction Act (hereafter the Act) and it is a scheduled building inasmuch as Respondent No. 1 is using a part of it for medical practice and his ejectment therefrom cannot be secured on the ground of personal requirement. The Petitioner has assailed the findings of the Rent Controller and the Appellate Authority on these two points in the present revision.

The contention of the Learned Counsel for the Petitioner is that the house in dispute was let out to Respondent No. 1 on April 1, 1974 vide rent note Exhibit A-5 wherein it is specifically mentioned that the house had been taken on rent for the period April 1, 1974 to March 31, 1975, for residential purposes. Respondent No. 1 is using a part of the building for his medical practice which is an essential requisite of a scheduled building. The use of a part of the residential building for medical practice would amount to change of user in terms of Section 13(2)(ii)(b) of the Act and Respondent No. 1 is liable to be ejected on that ground. The argument proceeds that the house in dispute having been let out for residence it would not become a scheduled building at a result of user of a part thereof for medical practice without the written consent of the landlord. The house would, therefore, continue to be a residential building and can be got vacated by the Petitioner for his personal requirement Reliance has been placed on Telu Ram v. Om Parkash Garg (1971) 73 P.L.R. 1, Des Raj v. Sham Lal (1980) 82 P.L.R. 647, and Rattan Singh Vs. D.R. Kapoor, .

The Learned Counsel for the tenant (respondent 3) has argued that he is in occupation of the house in dispute as a tenant since its construction in May, 1972. He is using a part of the building (two rooms) for his clinic and the retraining for his residence. The house in dispute had been taken on rent by Respondent No. 1 for residence and clinic in 1972. It was not taken on rent by Respondent No. 1 for the first time in April. 1974. The rent note Exhibit A-5 was got written by the Petitioner from Respondent No. 1 in routine wherein it was mentioned that the house had been taken on rent for residence. It is significant that in the rent note it is not mentioned that the house had been taken on rent for the period April 1, 1974 to March 31, 1975, for residence alone. Respondent No. 1 was running a clinic in the house in dispute when the rent note Exhibit A-5 was written and continued running it even thereafter There has been no change of user of the house in terms of Section 13(2) (ii)(b) of the Act after April 1, 1974. The Rent Controller and the Appellate Authority have rightly recorded the finding on this point against the Petitioner.

Dr. Rajwant Rai Sood Respondent No. 1 appeared as a witness and stated that the bouse in dispute was constructed in 1972 and he is in occupation thereof as a tenant since May, 1972 He produced the receipt Exhibit R-l relating to payment of rent for November, 1972, by him to the Petitioner. (The Petitioner has admitted that the receipt Exhibit R-l pertains to the house in dispute). Dr. Sood further stated that he was carrying on his medical practice in the premises in dispute since May, 1972, and in fact the house was constructed to suit his requirement as a medical practitioner. In 1970 he carried on his medical practice in the shop of Shiv Parshad and at that time he was residing in the house of Kabir Chand R.W.-1. He shifted his residence and medical practice to the house in dispute when it was taken on rent in May, 1972. The statement of Dr. Sood has been corroborated by Kabir Chand R.W.-1. A.W. Sat Pal has also stated that Dr. Sood was running his medical practice in the premises in dispute since 1972 A.W. Hargopal is the attesting witness of the rent note Exhibit A-5. He has also admitted that Dr Sood was residing in the house in dispute since the time it was constructed and that he is running his medical practice therein since then. The Petitioner himself appeared as a witness and stated that he did not know as to when did Dr. Sood start his medical practice in the premises in dispute. Keeping the entire evidence led by the parties it has been rightly found by the Appellate Authority that Dr Sood is in occupation of the house in dispute since May, 1972 and further he is residing and running his clinic therein since the inception of the tenancy.

The rent note Exhibit A-5 was scribed on April 15, 1974 and it pertains to the period from April 1, 1974, to March 31, 1975. It was admittedly executed by Dr. Rajwant Rai Sood in favour of the Petitioner. It is mentioned therein that the house had been taken for residence for the period specified above. It has been found above that the house was being used by Dr. Sood for residence and clinic since May, 1972. The premises in dispute was, therefore, being used as such when the rent note Exhibit A-5 was executed. In other words, the premises in dispute was a scheduled building in occupation of Dr. Sood as a tenant under the Petitioner when the former executed the rent note Exhibit A-5 on April 15, 1974 (or April 1, 1974). Dr. Sood did not surrender his tenancy rights in favour of the Petitioner before executing the rent note Exhibit A-5. The Petitioner, therefore, cannot take up the plea that the house was not a scheduled building when the rent note Exhibit A-5 was executed. The executing of the rent note Exhibit A-5 also does not amount to the surrender of his previous tenancy rights in the house and taking it afresh on rent with effect from April 1, 1974. Dr. Sood was either a contractual or a statutory tenant of the house when he executed the rent note Exhibit A-5 In other words, even in the ''absence of the rent note Exhibit A-5 Dr. Sood would not have been a trespasser in the house in dispute with effect from April 1, 1974.

The point for consideration is whether the execution of the rent note Exhibit A,5 with effect from April 1, 1974, wherein a mention was made that the house had been taken on rent for residence would have the effect of changing the category of the house from scheduled building to residential building or not. In my opinion, the house would continue to be a scheduled building with effect from April 1, 1974, in spite of rent note Exhibit A-5. Dr. Sood was a ten-, ant of the house in dispute as a scheduled building when he executed | the rent note Exhibit A-5. He did not surrender his tenancy rights thereafter in favour of the Petitioner when he executed the rent note. Dr. Sood would, therefore, continue to be a tenant of the house as a scheduled building under the Petitioner with effect from April 1, 1974, inspite of the mention in the rent note Exhibit A-5 that the house had been taken for residence for the period April 1, 1974 to March 31, 1975. The house being a scheduled building even after April 1, 1975, under the tenancy of Dr. Sood cannot be got vacated by the Petitioner on the ground of personal requirement.

The Petitioner has failed to prove that Dr. Soed started running his medical practice in a part of the house after April 1, 1974. He, therefore, cannot seek ejectment of Dr. Sood u/s 13(2) (ii) (b) of the Act. The house is a scheduled building and Dr. Sood cannot be ejected therefrom on the ground that the Petitioner requires it for his own occupation in terms of Section 13(3) (a) (i).

In the result, the revision fails and is dismissed with no order as to costs.