Sham Sunder Ahuja and another vs Sham Sunder Bhatia and another

K. Kannan, J.—The only point involved in the Civil revision is whether the landlord who is in occupation of the remaining part of the building of which the demised premises is a part let for a non-residential purpose, could obtain eviction for his residential need. The contention of the learned counsel appearing on behalf of the petitioner is that petition was not maintainable and refers to me two decisions as fully covering the case in Dinesh Kumar Vs. Ram Singh 2006 (1) RCR (Rent) 182 and State Bank of Patiala Vs. S. Zulzuaoar Singh Virk and Others, . This point has been considered by this Court with elaborate details in Sh. Tejinder Singh Jaggi Vs. Sh. Rajiv Chopra (died) through LRs. and Others, The case was examined from the context of treating it as a vexed question that repeats in the corridors of the Court that would require clarity in approach. I have tried to explain that the Supreme Court judgment itself provides guidelines for the subordinate to follow. It will be useful to refer to the entire description in paragraph 17 of the judgment.

The key to the whole enigma seems to be available with the decision of Hon''ble Supreme Court in Busching Schmitz Private Limited Vs. P.T. Menghani and Another, . There, the Hon''ble Supreme Court was dealing with the case under the Delhi Rent Control Act, which provided u/s 14-A a right to recover immediate possession of premises for a residential purpose where the resistance to eviction was made on the ground that premises were let out for residential-cum-commercial purpose. The Hon''ble Supreme Court refused to leave to defend on the ground that the purpose of lease was not decisive of character of accommodation. This is precisely the issue before us. Could a building be termed as residential or nonresidential by the only fact that the property is let for residential or nonresidential purpose? As I have stated already where the development regulations constitute a particular zone where the building is situate to be either residential or non-residential, the purpose of actual letting loses significance, for building cannot assume a character to hold differently from how the zoning requirements stipulated for. The absurdity of the situation was pointed out by the Hon''ble Supreme Court by referring to situations where even public property like bridges and roads could be used by poor persons for residence and by such user a public property never become a residential place. The Hon''ble Supreme Court said "residential premises are not only those which are let out for residential purposes. Nor do they cover all kinds of structures where humans may mange to dwell. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated ''residential premises''.......... " A building which reasonably accommodates a residential user is a residential-accommodation and nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The ''purpose test'' will enable officers who own houses to defeat the Government by pleading that they do not own residential premises because the lease is for commercial use, built though it was and suitable though it is, for residence. Similarly the ''possibility test'' may make nonsense of the provision." The Hon''ble Supreme Court was actually referring to a particular provision of the Delhi Rent Control Act in its reference u/s 14(1)(e) where the Act had employed the expression ''premises leet for residential purposes'', thus investing the purpose of lease with special significance. The deliberate omission of such words u/s 14-A that gave right to immediate possession of the premises, the Hon''ble Supreme Court found to be significant.

The said judgment also gives the logic in allowing for the need of residential building in the hands of a tenant who holds it for non-residential purpose. The point for consideration would only be what the building originally was intended to be. If it was a residential house but a portion of it is used for non-residential purpose the user of such portion will not alter the character of the building itself as a non-residential building. This point has also been reflected in the judgment of this Court in Ram Kumar Vs. Ram Paul Luthra and others in CR No. 2886 of 1997 decided on 2.11.2012.

Having regard to the above decisions the maintainability of the petition cannot be in any way doubted. The decision cited by the learned counsel ought to be confined to its own peculiar facts and I will not find any need to explain the same. No other point is argued before this Court. The order of ejectment is confirmed and the civil revision is dismissed.