Shri Lekh Raj vs Smt. Phaguniya Devi

Rakesh Kumar Jain, J.—The landlord is in revision against order of the Appellate Authority dated 28.11.2009 by which order of the Rent Controller dated 29.1.2009 has been reversed and the eviction petition has been dismissed.

In brief, the landlord filed eviction petition u/s 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 (for short ''the Act) against the tenant alleging that initially the demised premises (shop) was let out to one Bhoora son of Sharma Dass at a monthly rent of Rs.600/- per month. The tenant died as a bachelor oh 3.11.1999 and after his death, his mother inherited the tenancy rights. The landlord sought her eviction on the ground of non-payment of rent from 1.10.2000 to 31.12.2002 at the rate of Rs.600/- per month, amounting to Rs. 16,200/-, ceased to occupy the shop in question for a continuous period of more than four months without reasonable cause and for personal use and occupation to start the business of selling tea and eatables. It was alleged that the petitioner has retired from service on 28.2.2002. He wanted to start his own business of selling tea and eatables in the shop, which is part of his residential building. The respondent, after appearance, tendered the entire rent with interest and cost as assessed by the Court. It was denied that the demised premises was kept locked after the death of original tenant Bhoora and there is no question of any personal need of the landlord, who has another vacant room in his possession. Rejoinder was filed in which the averments made in the written statement were denied and that of eviction petition were reiterated. On the pleadings of the parties, issues were framed on 6.10 2003, which reads as under:

"1. Whether the respondent is liable to be ejected from the house in dispute on the grounds as alleged in the petition? OPP

Whether the petition is not maintainable in the present form? OPR

Whether the petitioner has no cause of action to file the present petition? OPR

Relief."

The landlord examined himself as PW-1 and Ronki Ram, Clerk, M.C. Ambala as PW-2 whereas tenant examined herself as RW-1 and Kesar Dass as RW-2. She tendered into evidence copy of the site plan of the said house No.849-A/2 as mark ''X'' and closed her evidence. No evidence in rebuttal was led. The learned Rent Controller discussed all the three grounds of eviction separately in which grounds of arrears of rent and ceased to occupy was not found in favour of the landlord and were thus decided against him but the ground of personal necessity was decided in his favour and the eviction petition was allowed with the direction to the tenant to vacate the demised premises within two months of the passing of the order. The order of the Rent Controller was challenged only by the tenant wherein the Appellate Authority reserved the finding on the issue of personal necessity on the ground that the demised premises is a non-residential premises, which is a part of the large residential building, therefore, it is residential building, which cannot be got vacated by the landlord for the nonresidential purposes.

Learned counsel for the petitioner has submitted that the demised premises is part and parcel of the residential house, which is being used by the tenant for non-residential purposes, could be got vacated by the landlord for his non-residential purposes as the said part of the building would remain non-residential building and would not be termed to be a residential building as held by the learned Appellate Authority. In this regard he has referred to the decision of this Court in CR No. 6132 of 2009 titled as "Arun Kumar v. Shri Asbok Kumar Chhabra", decided on 29.7.2010, "Parmeshwari Devi v. Krishan Chander", 2003 H.R.R. 197, "S. Basha v. D.B. Indiramma", 2000(2) R.C.R. (Rent) 669 , C.R. No.3406 of 1996 titled as "Dev Raj v. Ram Parkash", decided on 24.9.2010 and CR. No.7915 of 2010 titled as Satpal Chadha and Others Vs. Satish Kumar and Others, decided on 22.2.2011.

On the other hand, learned counsel for the respondent has submitted that a small portion being used in residential house for non-residential purposes would not change the nature of the building, which would remain residential house and for that matter, it cannot be got vacated for non-residential purposes. He has also relied upon the decisions'' in the eases of State Bank of Patiala Vs. S. Zulzuaoar Singh Virk and Others, and Dinesh Kumar Vs. Ram Singh and Others, .

I have heard both the learned counsel for the parties and have perused the record.

The issue that a non-residential part of a residential building could be got vacated by the landlord for the non-residential purposes has been considered by this Court in CR No.7915 of 2010 titled as "Sh. Satpal Chadha (supra), wherein it has been held that a shop, which is a part of residential building and is being used for non-residential purposes by the tenant, falls within the definition of non-residential building for which landlord can seek eviction of the tenant for the non-residential purposes and not for residential purposes.

In view of the aforesaid, the present case is squarely covered by the decision rendered the case of CR No.7915 of 2010 titled as Satpal Chadha and Others Vs. Satish Kumar and Others, decided on 22.2.2011.

Hence, present revision petition is allowed and the order of the Appellate Authority is hereby set aside. In these facts and circumstances of the case, both the parties are left to bear their own costs.