Satish Kumar Mittal and another vs Shri Nand Kumar Khosla

I.S. Tiwana, J.—The petitioner-tenants have concurrently been ordered to be evicted from shop-cum-flat (SCF) No. 15 Sector 9-D Chandigarh, belonging to respondent Nand Kumar Khosla an Advocate by profession, on the ground that they were using the building in question for a purpose other than the one for which it was leased and the respondent-landlord bonafide required the same for his own use and occupation.

The relevant facts pleaded in the application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act; are that the demised property which is a residential building was constructed by Mr. L.N. Khosla (deceased) father of the respondent, and was initially let out to the petitioners for carrying on their business as ''Karyana dealers and general merchants'' in the front portion (described as shop) on the ground floor and the rest of the premises, that is, the back portion on the ground floor and the first floor for residential purposes vide lease deed dated October 7, 1968 (Exhibit P. 2), at a monthly rent of Rs. 285/ Later, vide lease deed dated December 7, 1970, (Exhibit P. 1) executed between the parties, the rate of rent was enhanced to Rs 300/- per month. In this deed too it was specifically mentioned that the petitioners would utilise the demised property for the abovesaid purposes, that is, for their business as ''Karyana dealers and general merchants'' and their residence. Mr. L.N. Khosla, father of the respondent died on June 21, 1971. He bequeathed his properties in favour of his heirs through a will and according to the same, the demised property (SCF No. 15) fell to the share of the respondent and the residential house No. 153, Sector 9B, Chandigarh, where the respondent too was living at the time of the death of his father, to the share of his elder brother, Wing Commander S.K. Khosla. In these proceedings we are not concerned with the disposal of the rest of the properties of late Mr. L.N. Khosla

Though the respondent-landlord had sought the ejectment of the petitioners on various grounds, such as, arrears of rent and impairing materially the value and utility of the building in question, yet he succeeded only on the above noted two grounds as already indicated. It is this aspect of the matter which is now assailed by the petitioners in this petition u/s 15(5) of the Act

Mr. D.S. Nehra Learned Counsel for the petitioners, vehemently urged that the building in question is not a residential building and thus the petitioners can neither be held guilty of changing its user to a commercial building nor can the respondent landlord legally eject them on the ground of his personal requirement and in case it is held otherwise as has been done by the lover authorities, then the respondent has miserably failed to prove any change of user by the petitioners and to establish the bonafides of his requirement.

So far as the first aspect of the matter, i.e., the nature of the building is concerned, I do not find any merit in the submission made in view of the definitions of "non-residential building" and "residential building" as contained in clauses (d) and (g) respectively of section 2 of the Act Clause (d) defines a "non-residential building" as a building used solely for the purpose of business or trade. Apparently it is not so in the case in hand. The very nomenclature of the building as ''shop cum flat'' indicates that the building is not meant solely for the purpose of business or trade. According to the averments and stand of the respondent-landlord it was neither being used nor meant to be used solely for that purpose. As per clause (g), a "residential building" means any building which is not a non residential building. Thus obviously the building in question not being a building used or meant for purposes of business or trade alone, is to be treated as a residential building. This aspect of the matter is squarely covered by an earlier judgment of this Court in Tirath Ram Chadha v. Tara Singh 1977 (1) R.L.R. 901, wherein almost in similar circumstances, it has been held thus:--

Since the tenancy relates to the shop-cum-flat, that is, the shop as well as the flat as one unit and the flat is not being used for the purpose of business or trade, it cannot be said that the building is being used solely for the purposes of business or trade It is, therefore, clear that in fact it is a residential building within the meaning of clause (g) of Section.

In a still later case in Radhey Shyam Vs. Nazar Singh, wherein a similar view had been taken, their Lordships of the Supreme Court did not even allow this aspect of the matter to be agitated before them. Faced with this situation, the Learned Counsel for the petitioners sought permission through Civil Misc. No 1338-CII of 1982 to lead additional evidence in the form of a certificate issued by the Estate Officer, Chandigarh, to the effect that SCF No. 15, Sector 9-D, Chandigarh, is meant for commercial use only I decline to accede to this request of the Learned Counsel for the short reason that in the face of the above noted definitions of ''residential building'' and ''nonresidential building'' contained in the Act, this certificate, even if allowed to be treated as evidence, is of no value.

It was next contended by Mr. Nehra that the two lease deeds, Exhibits P. 1 and P. 2 (as distinguished from rent notes) on the basis of which it has been held by the subordinate Tribunals that the demised building was rented out to the petitioners for the dual purpose of residence and business as Karyana dealers and general merchants, being unregistered documents, are inadmissible in evidence in view of the provisions of Section 107 of the Transfer of Property Act. In the light of that it was further asserted by the Learned Counsel that section 91 of the Evidence Act completely disentitled the respondent-landlord to lead any other evidence in this regard and the evidence to this effect already on record has to be ignored on that account In support of their respective stands about the admissibility of these two documents, the Learned Counsel for the parties have referred to a number of precedents wherein the opinion expressed is not in any way consistent I, however, do not feel the necessity of going into this aspect of the matter in view of the other material on record amounting to an admission of the petitioners in this regard In paragraph 2 of the application, the respondent landlord pleaded thus:--

2 That after constructing the shop cum-flat No. 15 in Sector 9-D, Chandigarh, hereinafter referred to as the shop cum-flat, the petitioner''s father in October, 1968, leased out the shop-cum-flat to respondents vide lease deed dated 7-10-1968 specifically for the purpose of carrying on a shop in the front room of the ground floor and for using the rest of the premises for residential purposes of respondents. The respondents have been actually using the said portion for their residence. Original lease deed dated 7. 10 1968 is submitted herewith.

In reply, the petitioners stated as follows: --

That para No 2 of the petition is admitted to the extent that the premises was taken on rent by M/s Punjab Provision Store, now Punjab Stores through the respondent from Shri L.N. Khosla, the father of the petitioner in the year 1961. Previously the rent was Rs. 180/- P.M. The same was enhanced to Rs. 210/- P.M. and Rs. 290/-, then to Rs. 330/- P.M. and ultimately to Rs. 500/- P.M.

In paragraph 3 of the application, the respondent-landlord once again pleaded in the context of the latter lease deed dated December 7, 1970, as follows:--

This lease deed dated 7th December, 1970 is for a period of 11 months and after that the tenants respondents are holding over the tenancy on the same terms and conditions except the rate of rent and the tenancy continues to be a monthly tenancy according to which the lessees have to abide by all the terms contained in the lease deed dated 7th December, 1970, except the rate of rent.

The stand of the petitioners as disclosed in paragraph 3 of the reply was:--

That para No. 3 of the petition is admitted to the extent that the father of the petitioner died on 21st June, 1971 and the respondent has no knowledge, whether the father of the petitioner had executed a will in favour of the petitioner alone or in favour of his other sons and daughters also. Shri L.N. Khosla, father of the petitioner has left three sons and two daughters. The petitioners has not impleaded his other two brothers and two sisters who are co-owners and co-landlords in the premises in dispute.

A bare reading of the above noted parts of the pleadings of the parties manifestly indicates that the petitioners at both the stages failed to deny or plead anything controverting the specific stand taken by the respondent-landlord that the premises in question had been rented out to the petitioners for residential-cum-commercial purposes and the petitioners had actually been using the same in that manner. In a still later part of the application it was pleaded that as a matter of fact the petitioners shifted their residence from the demised premises on August 14, 1975 to another residential house, i.e. House No. 112, Sector 16-A and with effect from that date they started using the portion which was earlier being used by them for their residential purposes, for commercial purposes, i.e., primarily as godown. This stand of the respondent-landlord is not disputed by the petitioners. Their plea, however, was that when the rate of rent was enhanced to Rs. 500/- with effect from April 1, 1976, it was specifically agreed to by the landlord that thereafter ''the building would be used by the respondent for business purposes only''. The well-established rule of law, that if denial of a fact pleaded is not specific or is evasive, the said fact shall be taken to be admitted, has been codified in Rule 5 of Order 8 of the Code of Civil Procedure. As pointed out above, in the case, in hand what to talk of a specific or an evasive reply by the petitioners to the categoric averment of the respondent-landlord that the premises in question were meant to be used and were being used for residential cum-commercial purposes, there has been no reply or denial at all. Their Lordships of the Supreme Court in Badat and Co. Vs. East India Trading Co., , have observed that in such an event, the admission itself being proof, no further proof of the facts alleged (by the applicant respondent-landlord in this case) is necessary. Besides all this, Mr. Vinod Kumar, petitioner, as R W. 4, has admitted in no unmistaken terms that they shifted their residence to House No. 112, Sector 16-A, Chandigarh, in August 1975 and prior to that both the petitioners used to live on the first floor and the back portion of the ground floor of S.C.F. No. 15 Sector 9-D. Chandigarh. It is also admitted by him that subsequent to their shifting their residence from the demised building, the same was being used solely for business purposes. He also admits that the first floor and the Barsati at the top was being used as a godown The sole defence pleaded for this change of user of the demised property is that since April, 1976 when the receipt Exhibt R. 2 was executed, the respondent-landlord had agreed to this change of user and it was on that account that the rate of rent of the demised premises was raised to Rs. 500/- from Rs. 330/- per month. The Learned Counsel for the petitioners tried to make much capital of this increase of rent and pointed out that this by itself, besides some other circumstances, is indicative of the truthfulness of the plea taken by the petitioner. I, however, do not find any merit in this stand of the petitioners Firstly, as per the admission of Mr. Vinod Kumar himself, the user of the demised building had been changed from residential to non residential purposes with effect from August, 1975, that is, at least eight months prior to the alleged agreement arrived at between the parties about the change of user and thus mere raise in rent as indicated by Exhibit R 2, does not in any way establish that the respondent-landlord had accepted this raise on account of his having consented to the change of user Secondly, I find that the previsions of Section 11 read with Section 19 of the Act clearly lay down that no person, except with the prior permission in writing of the Controller, can convert a residential building into a non residential building and in case he does so, be is liable to be punished with a fine which may extend to one thousand rupees. The respondent-landlord who is admittedly an Advocate by profession and has about ten years'' standing at the bar, can certainly not be attributed the ignorance of these provisions. Thirdly, even if for argument''s sake this plea of the petitioners is to be accepted-though, as pointed out I find no substance in the same still in view of the provisions of Section 13(2)(ii)(b), the petitioners can take no advantage of the same. This provision of law makes a tenant liable for eviction in case he uses the building for a purpose other than the one for which it was leased out to him, without the written consent of the landlord. Thus this provision makes it imperative for the tenant to have the written consent of the landlord before he can start using the demised building for a purpose other than the one for which it had been rented out to him. Neither any such written consent has been pleaded nor proved Thus I am of the considered opinion that this aspect of the matter that the demised premises were rented out for residential cum-commercial purposes and were actually being so used prior to the petitioners'' shifting their residence to Sector 16, is well-established on record and the findings of the Tribunals to this effect deserve to be sustained.

Though the above noted conclusion of mine by itself is enough to dismiss this petition, yet on the insistence of the Learned Counsel for the petitioners I proceed to examine the other stand of their''s about the non genuineness of the requirement of the respondent-landlord to occupy this building I find it equally meritless. It has been pleaded by the respondent-landlord that as a result of the will executed by his deceased father. House No. 15.1, Sector 9 B, where he used to put on, had fallen to the share of his elder brother. Wing Commander S.K. Khosla According so him after the death of Mr. L.N. Khosla, his status in that house was merely that of a licencee. Further on account of his marriage in October, 1976, the respondent was not only in need of more accommodation but his brother Wing Commander S.K. Khosla also insisted on him to have his separate accommodation. It was in that situation that he felt the necessity of getting the demised building vacated by the petitioners. What, according to the Learned Counsel for the petitioners, disentitles the respondent from seeking the eviction of the petitioner on the ground of personal requirement is that since the filing of this application u/s 13 of the Act on May 11, 1978, the respondent has taken on rent House No. 257. Sector 10, Chandigarh, from one Mr. M.L. Puri The respondent during the course of his statement as A.W. 1 has not only supported his case as stated above, but through an application dated September 21, 1979 sought the permission of the Court for his again entering the witness box to explain the changed circumstances, that is, renting of house No. 257, Sector 10. On this permission having been granted, he made his further statement on February 27, 1980, explaining therein that but for the vacation of house No. 153, Sector 9-B, where he used to live with his brother''s and other members of the family, he had not vacated any other house nor had he any accommodation with him except house No. 257, Sector 10-A, which was rented out by his wife at the rate of Rs. 525/ P.M. In the latter house only two bed rooms and a drawing-cum-dining room were in their occupation. It deserves to be mentioned here that brother of the respondent, Wing Commander S.K. Khosla, appeared as A.W. 6 and supported the case of the respondent, particularly his insistence in asking the latter to vacate that house for him He also explained that the said accommodation was not enough for his and respondent''s families particularly after the marriage of the respondent in October, 1976 and his own impending retirement in the beginning of 1977. The very fact that the respondent vacated that accommodation during the pendency of these proceedings, to my mind, goes to show the genuineness of his requirement. As opposed to this, R.W. 4 Vinod Kumar, when recalled for further cross-examination on October 8, 1980, admitted in no uncertain terms that he was not aware as to where the respondent-landlord was living as he had made no effort to enquire about it. Not only this, the petitioners summoned Mr. M.B. Puri, a portion of whose house (No. 257, Sector 10-A) had been rented by the respondent''s wife as a witness but chose to give him up vide their counsel''s statement dated July 24, 1980. The obvious implication of this is that had Mr. Puri been examined by the petitioners he would not have supported their case Thus according to their own showing, the petitioners could not possibly rebut the stand of the respondent landlord that the accommodation with him or his wife in house No. 257, Sector 10-A, was not enough. The details of the accommodation in his occupation already referred to above clearly disclose that though he is an Advocate of about ten years'' standing, yet he has no proper accommodation for setting up of his office even. Thus I am satisfied that the finding recorded by the subordinate Tribunals about the genuineness of the personal requirement of the respondent, is well-merited and cannot possibly be dislodged.

Thus the net result of the above discussion is that this petition has no merit and is dismissed with costs which I assess at Rs. 300/-. However, the petitioners are allowed three months'' time from today to hand over the vacant possession of the demised premises to the respondent. Civil Misc. Nos. 1338, 1437 and 1436 of 1982, filed by the petitioners, also stand disallowed.