SMT. KAMLA KANTA Vs. AJIT SINGH

JUDGEMENT

(1.) The petitioner-landlord sought the ejectment of the respondent-tenant on three grounds(a) non-payment of rent, (b) change of user of the building and (c) personal requirement as specified in sub-sections (2)(i), (ii)(b) and 3(a)(i)(a) respectively, of section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act), but concurrently failed before the subordinate authorities.

(2.) So far as the question of non-payment of rent is concerned, finding of both the authorities is that since there was no proper service on the respondent-tenant initially and copy of the application filed against him by the landlord was supplied to him for the first time on November 6, 1974, when he put in appearance in response to a substituted service by beat of drum and tendered the rent by the next day of hearing, that is, November 21, 1974, the tendering of rent amounted to the satisfaction of proviso to clause (i) of sub-section (2) of Section 13 of the Act. Though the petitioner has not taken a specific ground to assail this conclusion of the lower authorities in the present revision petition, yet the learned counsel seeks to raise it on the ground that it is purely a legal ground which can be taken up even at the time of hearing. Anyhow, after hearing the learned counsel for the petitioner on this aspect of the matter I do not find any infirmity in the finding recorded by the lower authorities. It is the admitted case that there had been no personal service on the respondent and he put in appearance for the first time on November 6, 1974 in response to the substituted service made on him through beat of drum. It is again the admitted position that by that date that is, November 6, 1974, no copy of the application had been served on the respondent-tenant. In such a situation the 6th of November, 1974, would only be a date when he was served or may be called the date of service and the next date in the case, that is, November 21, 1974, would amount to be the date of first hearing in the case. Admittedly the tenant hand tendered the rent on that date of hearing and, to my mind, this amounted to sufficient compliance of proviso to clause (i) of sub-section (2) of section 13 of the Act.

(3.) While dealing with the other two grounds of ejectment specified above, the learned counsel for the petitioner has vehemently urged that the finding of the lower Court to the effect that the demised property was a non-residential property, is based on complete misreading of the evidence and the facts established on record. The learned counsel points out that though no specific issue was claimed by the respondent on the point as to whether the demised premises were residential or non-residential building yet the evidence on record conclusively establishes that what had been rented out to the respondent was a house, that is residential building. According to the learned counsel, the approach of the lower authorities that in the absence of the non-production of the lease deed vide which the premises had been rented out to the respondent, the nature of the demised premises is determined by the user to which it had been put, is totally erroneous. In support of his argument, the learned counsel points out that this property was purchased by the petitioner on October, 23, 1967 vide sale deed Exhibit A.1, from one Gurmukh Singh. In this sale deed as well as the agreement Exhibit A.2, preceding this sale, this property has been described as a house. Not only this the respondent-tenant filed a suit for pre-emption (copy of the plaint is Exhibit A. 15) wherein he described and admitted this property to be a house. Had it been a shop or a non-residential building as has now claimed by the respondent, then no suit for pre-emption could possibly be filed in view of section 5 of the Punjab Pre-emption Act, 1913, since repealed. In a still later suit filed by the respondent (Exhibit A-13 on December 30, 1963, seeking an injunction against the petitioner restraining her from dispossessing him, this property again was described as a house. These admissions made by the respondent in these two suits were specifically pleaded by the petitioner in his present application under Section 13 of the Act, but the respondent in his reply has neither denied these admissions nor has in any manner explained if these were wrongly or incorrectly made. On the other hand his reply to the averments of the petitioner in this regard is "denied for want of knowledge". No doubt it is true that in some of the paragraphs of this reply he has described the property in question to be a non-residential property or a shop, but as already pointed out, the admissions made by him in the earlier suits remain unexplained. It is on the basis of this evidence coupled with oral evidence of R.Ws 1 to 3, 7 and 8 that the learned counsel for the petitioner urges that the two subordinate authorities have failed to attach due importance to this evidence and have come to a wrong conclusion holding the property in question to be a non-residential property. The learned counsel points out that once a property is stated or described to be a house then it has to be taken as a residential building, that is, the sense in which the word 'house' is understood in common parlance. In support of this stand of his the learned counsel relies on a Full Bench judgment of this Court in Des Raj v. Sham Lal, 1980 AIR(P&H) 229, wherein it has been held that if a demised building is identified as a 'house in a lease-deed, it would be taken that the parties had used the expression "house" in the sense in which the "house" is understood in common parlance or as indicated by its dictionary meaning. In the face of these above noted admissions made by the respondent the Oral evidence led by him to show that the property in question was not a residential property, is or no avail to him particularly when he has nowhere explained as to how the admissions made by him were in any way wrong or were made under a mistaken belief. The admissions made by a party against itself though may not be conclusive, yet is the best evidence against it. In the face of this I find that the conclusion recorded by the lower authorities to the effect that the property in question is not a residential property, is totally erroneous. Thus if the demised property is a house as it is then obviously it is for the respondent-tenant to show that it had been rented out to him for a purpose other than residential. It is not in dispute that in view of the provisions of section 11 of the Act, no person can convert a residential building into a non-residential one except with the permission in writing of the Controller. Neither any such permission has been pleaded nor proved.