RANBIR KAUR BINDRA Vs. SITAL PARKASH JAIN

JUDGEMENT

(1.) THIS is landlords' revision petition in whose favour the eviction order was passed by the Rent Controller but was set aside in appeal.

(2.) THE demised premises are a one kanal house bearing No. 191, Sector 19-A, Chandigarh. It consists of two bed rooms, drawing-cum-dinging and a garage etc. It was previously owned by Shrimati Lajya Wati Mahajan. She inducted Sital Parkash Jain as a tenant therein in the year 1969. Later, on, she sold the said house to Shrimati Ranbir Kaur and her husband Shri Narinder Pal Singh Bindra who became the landlords qua Sital Parkash Jain, tenant. They filed the eviction petition against him on Sept. 23, 1981, on the grounds of non-payment of arrears of rent since April, 1981 ; change of use thereof from residential to commercial and the bona fide personal necessity. It was pleaded that the premises, in dispute, were residential and were given on rent only for residential purpose, but the tenant had allowed their use for purposes other than residential. One of his sons was running the business in one portion thereof and the products were being stored and sold there. It was also pleaded that his wife Shrimati Vijay Jain was also running her independent training institute for girls in another portion of the demised premises. Even Kailash Chand Jain, another son of the tenant was maintaining the office of his company, known as M/s. K. C. and Co. thereon and, thus, he had converted the building from residential to a scheduled building or a non-residential building for a number of years till he shifted the office in Sector 18-A. It was also pleaded that the landlords had not vacated much less without sufficient cause any residential building after the commencement of the East Punjab Urban Rent Restriction Act, (hereinafter called the Act), nor they were in occupation of any other residential building in the urban area concerned. According to them, they were jointly putting up with petitioners 2's in-laws at house No. 129, Sector 8-A, Chandigarh, and sometimes at house No. 187, Section 19-A, Chandigarh, where they run their institute known as Business Research Courses Institute for guarding the property of the said institute. Their stay with petitioners No. 2's in-laws was no more liked by his in-laws and they genuinely and bona fide felt that their living there further may lead to more and more bickerings. Moreover, the brother of petitioners I, was likely to be married (since married during the pendency of the petition) and, therefore, he and his mother had specifically asked the petitioners to vacate the accommodation occupied by them in their house. Apart from that, they were only in occupation of one room which was hardly sufficient to accommodate them and their two minor daughters aged eight and six years. In the written statement, the allegations made in the eviction application were controverted. It was pleaded by the tenant that he was using the premises for residential purposes and not for any other purpose, as alleged. It was specifically denied that any business was being carried therein either by the tenant's son or by his daughter-in-law Shrimati Vijay Jain. As regards landlords' bona fide requirement, it was pleaded that they did not require the demised premises for their use and occupation. They were permanently residing in house No. 129, Sector 8-A, Chandigarh in their own right. That house was a big one; constructed on an area of 1,000 square yards where they had got ten rooms available to them for their use and occupation. It was denied that they were required to vacate the house in Sector 8-A, Chandigarh. It was also pleaded that besides the said house, they were occupying another residential building, i. e. , house No. 187, Sector 19-A, Chandigarh, where there was sufficient accommodation consisting of four rooms, drawing-cum-dining room and a huge annexe which is double-storeyed and a big courtyard at the back. According to the tenant, house No. 1897, Sector 19-A, Chandigarh, was a residential building and could not be used for non-residential purposes as the same is prohibited by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 as well as by S. 11 of the Act. In the replication filed on behalf of the landlords, with respect to their bona fide requirement of the demised premises, it was stated that house No. 187, Sector 19-A, Chandigarh was let out therefore, its occupation by them, was irrelevant for the purposes of the present case. Besides, the tenant was not concerned with permission or no permission with regard to the said house, as alleged in the written statement. The learned Rent Controller found that the landlords had proved their bona fide requirement of the demised premises and, thus, they were entitled to evict the tenant therefrom on that ground. As regards the present accommodation in their occupation, the learned Rent Controller found that the accommodation in house No. 129, Sector 8-A, was not in their possession in their own right and that they were living there with the permission of their in-laws who had asked them to vacate the same. As regards their occupation of house No. 187, Sector 19-A, Chandigarh, it was found that the accommodation therein could not be said to be sufficient for them especially when they had taken the said premises for running their institute and not for their residence. On the question of change of user, it was found that it had been proved on the record that the tenant had used the premises for a purpose other than the one for which they were let out to him. On these two grounds, the eviction order was passed. In appeal, the learned Appellate Authority reversed the said findings of the Rent Controller and came to the conclusion that neither there was any change of user as the landlords had not proved that any actual business was being carried on in the demised premises, not they had proved their bona fide requirement thereof, since they had failed to prove that they were not occupying any other residential building in the urban area concerned. At the same time, it was also observed that had the landlords been able to prove that they were occupying only one room in house No. 129, Sector 8-A, the eviction petition would have succeeded. According to it, was proved on facts that the landlords were living in house No. 187. Sector 19-A, Chandigarh, though at the same time, it was also observed that a part thereof had been proved to have been used or running the institute by the landlords. In view of these findings, the ejectment application was dismissed. Dissatisfied with the same, they have filed this revision petition in this Court.

(3.) THE learned counsel for the petitioners contended that in the written statement, the tenant denied that any business was being carried on in the demised premises whereas from the documentary evidence on the record, it was amply proved that business was being carried on therein. According to the learned counsel, the tenant never set up the case that the dominant purpose for which the premises were being put to use was residence and the business, if any, was being carried on in small portion thereof only. Since no such plea was taken, he could not be allowed to take this plea for the first time at this stage. As regards their personal necessity, it was contended that they were in occupation of only one room in house No. 129, Sector 8-A, which belonged to their in-laws. Besides, the accommodation therein was insufficient to meet their requirement and that of their family which consisted of four members. As regards their occupation of house No. 187, Sector 19-A. Chandigarh, the same was taken on rent for running the institute and, therefore, the question of their residence therein did not arise though they did occupy the same sometimes to protect the property of the institute, but in any case, the said building having been taken on rent primarily for running the institute, the same was not sufficient for residential purposes. Even earlier, his landlord had filed an eviction petition against the petitioners for his eviction from the premises on the ground of the change of use, but it was found therein that the building was let out for running the institute and the same business was being carried therein. Consequently the said eviction application was dismissed by the Rent controller vide order dt. Jan. 24, 1981, Exhibit A. 14. Thus, argued the learned counsel, it was amply proved on the record that house No. 187, Sector 19-A, Chandigarh, was taken for running the training institute and the same activity is being carried on there. The occupation of the said building cannot be taken into consideration for determining the bona fide requirement of the landlords, since the occupation was that of the institute.