cr no.6047 of 2008.doc - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.6047 of 2008 (O&M) DATE OF DECISION: 14.12.2009 **** Rajnesh Kalra . . . . Petitioner VS. Dr. Vinod Kumar Puri . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Akshay Bhan, Advocate for the petitioner Mr. V.P. Singla, Advocate for the respondent a ***** SURYA KANT, J. 1. This revision petition preferred by the tenant, assails the order dated 13.09.2008 passed by the Rent Controller, Pathankot in an eviction petition filed under Section 13-A of the East Punjab Urban Rent Restriction At, 1949 (hereinafter referred to as ‘the Act’), whereby he has been ordered to be evicted from the rented premises situated on the Ram Lal Ground Road/Mission Road, Pathankot. 2. The respondent – Dr. Vinod Kumar Puri filed the eviction petition under Section 13-A read with Section 18-A of the Act for immediate delivery of possession of the Ground Floor portion of the demised premises in occupation of the petitioner-tenant. The eviction was sought summarily as the respondent claimed himself to be a ‘specified landlord’. The respondent averred that the demised premises is a residential house which was owned by his father late Sh. Ved Parkash Puri which was orally partitioned by way of a family arrangement into two portions - one portion consisting of five rooms, two kitchens, a cr no.6047 of 2008.doc - 2 - garage and barsati fell to the share of the respondent while the other portion came to the share of his brother Vijay Kumar. 3. The respondent further averred that the petitioner is in possession of a part of the Ground Floor of the house which fell to his share, on a monthly rent of Rs.400/- and that the entire premises has remained a residential house and no permission was ever obtained to change its usage from residential to non-residential purposes. 4. The respondent further averred that he is a MBBS, MD (Radio- diagnosis) qualified doctor and has served in Indian Navy as a Doctor till he retired on attaining the age of superannuation as Surgeon Commodore on 31st August, 2004. According to the respondent, he requires the ‘scheduled building’ in question for residence and in addition to it, he also intends to start a Diagnostic Centre by installing necessary machinery for which effective steps had already been taken. The respondent further averred that he had the necessary financial resources at his command though the machinery shall be partly got financed from the Bank. He is already a member of the Indian Medical Association of Pathankot Branch. The respondent averred that besides himself and his wife, they have three daughters out of whom two are married at Delhi and Mumbai while their third daughter is a student staying with him. The married daughters with their respective husbands and in-laws oftenly visit and stay with the respondent and that his daughters require separate living rooms. The respondent specifically averred that owing to the standard and status of his family, he requires the demised premises for setting up a proper drawing room, dining room, kitchen, living rooms, store and in addition requires separate space for establishment of equipment room, consultation room, laboratory and sitting place for the patients etc. For this purpose, the respondent is said to have filed one more cr no.6047 of 2008.doc - 3 - eviction application against another tenant in a part of the premises as the portion in his possession was inadequate to meet his requirements and of the family. The respondent also averred that he does not own or possess any other suitable accommodation in the local urban area nor has he vacated any such premises. 5. Upon notice, the petitioner-tenant filed his affidavit dated March 4, 2005 and sought leave to contest the eviction. In his affidavit, the petitioner-tenant averred that the premises in his occupation, is a shop and is a part of the ‘commercial building’ for which eviction petition under Section 13-A of the Act is not maintainable. He also averred that the entire building built up by late Ved Parkash Puri is comprising six rooms, store, bath-rooms, porch on a rear part and two shops on the road side and that during his lifetime late Ved Parkash Puri – father of the respondent used to run a guest house known as ‘Puri Ashiana’ thereby using the entire building for commercial purposes. It was further mentioned that before inducting him as a tenant, the father of the respondent (late Ved Pal Puri) used to run his own office of finance business in the shop in dispute. The necessity pleaded by the respondent was also disputed and it was explained that the third daughter of the respondent-landlord had also completed her studies and is employed in Delhi and the respondent himself is permanently settled at Delhi and none of them is likely to live at a small place like Pathankot by shifting from the Metropolitan cities of Delhi and Mumbai. The brother of the respondent, namely, Vijay Kumar was stated to be settled in USA and so were his sisters. The affidavit further disclosed that the respondent and his brother and sisters have inherited several immoveable properties from their father in and around Pathankot and even after and before his alleged retirement, the respondent has sold various properties like a plot cr no.6047 of 2008.doc - 4 - measuring 1188 sq. ft. sold on 2nd August, 1994, another plot measuring 16 marlas sold on 14th September, 1995. It was also stated that the respondent has got another residential accommodation, besides major part of the premises in question comprising six rooms, two stores, two kitchens, four bath-rooms, verandah and porch etc. which are already being used as a guest house. 6. The Rent Controller, Pathankot did not find any triable issue having been raised by the petitioner-tenant in his affidavit and has consequently passed the impugned eviction order dated 13.09.2008, giving rise to this revision petition. 7. I have heard learned counsel for the parties at some length and perused the records including that of the Rent Controller which has been summoned. 8. At the outset, it may be observed that the facts like the respondent being owner of the demised premises or that he served in the Indian Navy as a Surgeon Commodore and has retired on attaining superannuation w.e.f. 31.08.2004 or that he is a qualified medical professional are not in dispute at all. The respondent has already appended the relevant documents/certificates to this effect along with the eviction application. Similarly, it is beyond any controversy that the respondent has filed the eviction application on 07.01.2005 i.e. within one year of his retirement on superannuation from the Indian Navy. 9. The primary and foremost contention raised on behalf of the petitioner-tenant is that the demised premises is a shop and being a ‘commercial building’, no eviction petition under Section 13-A of the Act is maintainable. Reliance is placed upon a decision of the Hon’ble cr no.6047 of 2008.doc - 5 - Supreme Court in Shabir Ahmad vs. Sham Lal and another (2002) 3 SCC 118. 10. On the other hand, learned counsel for the respondent urged that the demised premises is a residential house which fact stands duly proved from the site plan on record and the respondent is entitled to use the same for both residential as well as commercial purposes. 11.In order to appreciate the rival contentions, it would be useful to refer to the expressions “non-residential building”, “residential building” and “scheduled building” as defined under Section 2(d),(g) & (h) of the Act which read as follows:- 2(d) “Non-residential building” means a building being used solely for the purpose of business or trade. (g) “Residential building” means any building which is not a residential building. (h) “Scheduled Building” means a residential building which is being used by a person engaged in one or more of the professions specified in the [Schedule I] to this Act, partly for his business and partly for his residence; 12. Unambiguously, the Statute provides that a ‘building’ which is being used solely for the purpose of business or trade can be termed as a non-residential building while any building which is not a ‘non- residential building’, shall be taken as a ‘residential building’. Similarly, when a residential building is used by a person engaged in one or more professions partly for his business and partly for his residential purposes, it shall be categorized as a ‘scheduled building’. 13. In the case in hand, the respondent has specifically averred in the eviction petition that the demised premises is a residential house. This fact has not been disputed by the petitioner-tenant in his affidavit dated 04.03.2005. His only case is that the entire residential house was being used by late Ved Parkash Puri – father of the cr no.6047 of 2008.doc - 6 - petitioner to run a guest house and, therefore, it has to be treated as a non-residential building. It is not in dispute that neither the previous owner nor the respondent ever applied or granted change of the user of the subject building. The site plan on record which is also not disputed by the petitioner-tenant, coupled with the averments made by the tenant himself in para 11 of his affidavit, leave no room to doubt that the entire building is a residential house. The premises abuts the main road and a part thereof can be utilized for commercial purposes also. The respondent-landlord has specifically denied in his rejoinder affidavit that the demised premises was ever used as a ‘guest house’ by his deceased father. In my considered opinion, even if the residential building was being used for a profit motive, it does not change its user. It is not the case of the petitioner-tenant that the entire building was being used for running business activities as it is his own case that the portion in occupation of the respondent- landlord is sufficient for his ‘residential’ purposes. The contention of the petitioner that the respondent-landlord has admitted the non- residential nature of the building as he wants to utilize the same for establishing a Diagnostic Centre, is wholly misconceived for the reason that the respondent being a medical professional is entitled to utilise the residential building as a ‘scheduled’ building by partly using it for professional purposes. 14. The decision in Shabir Ahmad’s case (supra) relied upon by the petitioner does not come to his rescue as in that case, on construction of the terms and conditions and other recitals used in the Allotment Letter, Deed of Conveyance and the Housing Byelaws of Union Territory of Chandigarh, it was held that a Shop-Cum-Flat (SCF) in Union Territory Chandigarh is a ‘commercial’ building and cannot be utilized for residential purpose. The aforesaid decision is not in the cr no.6047 of 2008.doc - 7 - context of Section 2(h) of the Act which enables a person engaged in a profession to use a residential building partly for his business and partly for his residential purpose. 15. Though it has not been seriously disputed on behalf of the petitioner- tenant, yet suffice it to observe that under Section 13-A of the Act a ‘specified landlord’ at any time within one year prior to or within one year after the date of retirement, can seek immediate possession of residential or scheduled building from his tenant, on the ground of his personal necessity and such an eviction application has to be decided summarily as per the procedure laid down under Section 18- A of the Act inasmuch as even in a given case where leave to contest is granted, the Rent Controller is obligated to decide the eviction application on day-to-day basis. The respondent-specified landlord has fully satisfied the ingredients of Section 13-A of the Act as well. 16.For the reasons afore-mentioned, I do not find any merit in this revision petition which is, accordingly, dismissed with cost of Rs.5000/-. (SURYA KANT) JUDGE 14.12.2009 vishal shonkar