Sardari Lal vs Smt. Sarita singla

J.V. Gupta, J.—This is tenant''s petition against whom eviction order has been passed by both the authorities below.

The landlady, Smt. Sarita Singla filed the ejectment application u/s 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as Act), dated 21.4.1984, seeking the ejectment of her tenant Sardari Lal from the demised premises which consist of one room on the ground floor in a residential building in which she is residing herself along with her family. The ejectment was sought, inter alia on the ground that the landlady bonafide required the premises in dispute for her own occupation and for the occupation of her husband who was a lawyer and required the same for his office. She further stated that earlier they were living with the landlady''s mother in the remaining portion of the building bearing Municipal Unit No. 1277, but since in society it is considered degrading to Live as ''Ghar Jawai'', her husband wanted to live independently from his mother-in law. Accordingly, she pressed her mother to partition her share in the building and in accordance with partition, one-fourth share of the building bearing Municipal Unit No. 1277, which includes the room in dispute, has been allotted to her by the civil Court decree dated 14-3-1984, and secondly, the premises were rented out for doing tailoring business whereas now the tenant has started the business of selling cloth therein and thus there was change of user.

The tenant in his written statement controverted the said allegations and pleaded that the landlady had sufficient accommodation for her residence and personal use; that she had got the demised premises transferred in her name in order to make a ground for ejectment with mala fide intention; she is residing along with her mother; there was no change of user and the same business is being carried on which was there since the start of the tenancy in the year 1971.

The learned Rent Controller found that the evidence led by the landlady is sufficient to prove that there was change of user by the tenant in view of the report of the Local Commissioner as the shop was being used for drapers whereas the same was not rented for the said purpose vide rent note dated 13-11-1971, Exhibit P.W.4/1. Consequently, eviction order was passed on 8-11-1985 on this ground alone.

Dis-satisfied with the same, both the parties filed separate appeals before the Appellate Authority. In appeal, the Appellate Authority affirmed the finding of the Rent Controller on the question of change of user and at the same time reversed the finding of the Rent Controller on the question of bona fide requirement by the landlady and came to the conclusion that she has been able to prove that she required the demised premises for her bona fide personal use and for the us of her husband. Consequently, eviction was maintained by order dated 21-10-1987.

At the time of motion hearing, it was contended that the building is a shop and consequently the same could not be got vacated for the office of the husband.

Learned Counsel for the tenant-Petitioner submitted that there was no question of change of user even if the shop was rented out for tailoring business. The business of selling cloth is the extension there of and, therefore, the view taken by the authorities below in this behalf was wrong and illegal. In support of his contention, he referred to Rattan Lal v. Asha Rani 1988 H.R.R. 625, and Mohan Lal Vs. Jai Bhagwan, He further submitted that the premises were let out as a shop and, therefore, the same could not be got vacated for personal necessity of the landlady According to the learned Counsel, even if the demised premises was a part of the residential house, the same was being let out as a shop from the very Beginning and was situate in a street and was separate from the residential portion. Thus argued the learned Counsel, no eviction order could be passed on this ground. It was also maintained that the requirement of the landlady for the office of her husband, who was an Advocate, could not be said to be ''residential'' and it amounted to business. According to the learned Counsel, profession of a lawyer was a business and, therefore, for the said purpose the premises could not be got vacated. In support of this contention, he referred to Dr. Jagit Mekta v. Dev Brat Sharma 1987 H.R.R. 680, and Roshan Lal v. Dharm Pal (1985) 87 P.L.R. 130.

On the other hand, the learned Counsel for the landlady submitted that admittedly the demised premises is a portion of a residential building and that being so, the landlady was entitled to evict her tenant for her bona fide requirement. In support of his contention, he referred to Sant Parkash Singh v. Labh Singh 1984 (2) R.C.R 195 and Hari Mittal, Advocate and ors v. B.M. Sikka (1986) 89 P.L.R. 1 (F.B.). He further submitted that since the room was rented out for doing tailoring business, which was an industry, whereas it was now being used for cloth business therefore, it amounted to change of user. In support of this contention he referred to Chander Kumar Anand and Ors. v. Smt. Daropadi Devi alias Agya Wanti (1988) 94 P.L.R. 660.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence and the case law cited at the Bar. As regards the change of user, I do not find that the view taken by the authorities below was correct, in view of the latest Supreme Court Judgments, referred to above, that is, Rattan Lal v. Asha Rani and Mohan Lal v. Jai Bhagwan (supra). Admittedly, the premises were let out for doing tailoring business and now the business of cloth selling was carried therein. In one sense, it could called an allied business in expanding concept of departmental stores, as held in Mohan Lal v. Jai Bhagwan (supra).

However, as regards the bona fide requirement of the landlady for her own occupation and for the office of her husband, who is an Advocate, I do not find any illegality or impropriety in the concurrent findings of the two authorities below as to interfere in revisional jurisdiction. Admittedly, the room in dispute it a part of a residential building and was never constructed as a shop though it was rented out as a shop at one time. There is no cogent evidence on the record that the residential house is situated in a commercial ''area. Rather, the finding gives by the Appellate Authority is that "in this case there is no evidence that the demised premises were initialy constructed for commercial purpose". Thus, in the absence of any such evidence, the judgments relied upon by the learned Counsel for the Petitioner have no applicability to the facts of the present case. That being so, the landlady is entitled to evict the tenant for her personal requirement. It was held by the Supreme Court in Hiralal Kapur v. Shri Prabhu Choudhary 1988 H.R.R. 211, that-

where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purpose will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.

According to the definition of the ''residential building'' and the ''scheduled building'' separately in the Act, could not be successfully argued that the profession of a lawyer was business as such as contended by the learned Counsel for the Petitioner. In S. Mohan Lal Vs. R. Kondiah, , the Supreme Court was interpreting the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It was the expression ''business'' therein which was interpreted to be different in context of that statute and not by reference to its use in other Act. It was held therein that the expression ''business'' is used in a wide sense so as to include the practice of the profession of an Advocate. Thus, the same has no applicability to the provisions of the present Act.

Consequently, this petition fails and is dismissed with no order as to Costs.

However, the tenant is allowed three months time to vacate the premises provided all the arrears of rent, if any, are deposited with the Rent Controller with advance rent for three months, with a further undertaking in writing that after the expiry of the said period vacant possession will be handed over to the landlady.