MANJIT SINGH Vs. SANT KAUR

JUDGEMENT

(1.) THE learned counsel for the revision-petitioner preferred an application seeking an amendment in the written statement to take a plea that the demised premises is a godown and is being used as such from the very inception of the tenancy and it being a commercial premises cannot be got vacated on the ground of personal necessity. The amendment was allowed subject to all just exceptions, that is, keeping the right of the respondent open to take an appropriate objection at the time of hearing of the case. The learned counsel for the respondent has filed a reply to the application for amendment and objects to the grant of permission to amend the written statement.

(2.) LEARNED counsel for the applicant has urged that in view of the evidence which has come on the record, the amendment has to be allowed. he referred to the statements of A.W. 1 and A.W. 2 and the site-plan to show that they have stated that the building is commercial one in which there are two shops and the godown on the ground floor and on the first floor, the landlady is residing herself. It is further urged that since the room in possession of petitioner is being used as a godown, it is a non-residential building and hence, no ejectment order can be passed as it is covered by the defintion of non-residential building given in section 2(d) of the Rent Act, defining the non-residential building. He has further referred to the decision in M.P. Bansal v. The District Employment Officer, 1985(1) Rent Control Reporter 490, to show what is residential building and further to corroborate that where a demised premises has been rented out for commercial purposes, the same cannot be got vacated for personal necessity. It has been very vehemently and very sanguinely urged that the case has to be remanded to determine whether the building is a commercial or nonresidential building when prima facie in the statement of the witnesses already examined, the building is proved to be non-residential one and it is by inadvertence only that this plea has not been taken either before the Rent Controller or before the Appellate Authority. This inadvertence has come to the notice of the petitioner only during the pendency of the revision petition after its admission. Consequently, application for amendment has been preferred.

(3.) LEARNED counsel for the respondent has further urged that since the tenant has already accepted the demised premises to be a house, he cannot be permitted to withdraw the admission already made. He has red out para No. where the demised premises has been described as house. it has been further pointed but that even number given by the Municipal Committee to the demised premises is House No. FJ 273. Further, the boundaries of the houses surrounding the demised premises have been again stated to be houses which fact is not controverted.