CR No.2442 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR No.2442 of 2009 Date of decision May 11, 2009 Gian Singh ....... Petitioner Versus Lakhpat Rai Madan ........Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. C. L. Verma, Advocate for the petitioner. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest? Yes K. Kannan, J (oral). 1. The revision is against the order of eviction passed in favour of the landlord on the ground that the property is required for personal occupation. The bona fides of the requirement and the maintainability of the petition are challenged in revision by the learned counsel for the petitioner was on the following grounds:- 2. According to him, the landlord has been residing at the first floor, while at the ground floor there are six shops and the property was rented out to him only for commercial purpose. The landlord is not entitled to obtain eviction for his residential need. He also relies on the judgment of this Court in Dinesh Kumar Vs. Ram Singh and others 2006 (1) RCR 182 that a non-residential building can be got vacated by the CR No.2442 of 2009 2 landlord for non-residential purpose on the ground of bona fide requirement of a non-residential building for a residential purpose is not available to the landlord. 3. The authorities below had considered the fact that the respondent had not been even running any business and the property that was originally offered to him provisionally was a room and later after construction of a shop he was supposed to move into another shop but he did not do so. The Courts below have considered that the property was not being put to non-residential use. Even if it were to be considered as a shop, the nature of the building that will be relevant in a case where there are no specific zoning requirement by a local regulation or rule irrespective of the purpose for which the tenant put it to use. If the demised premises itself is a part of a building and the predominent use of the building was for a residential purpose it is that purpose which will determine the building as either residential or non-residential. The fact that the property was occupied by the landlord himself for a residential purpose at the first floor and at the ground floor he had allowed the tenant to put to a non-residential purpose, in my view the property cannot be treated as a non residential building. The bar that may arise in a case where the building is a non- residential one that a landlord cannot obtain eviction for a residential need cannot be allowed in a case where the building is a residential one and a portion of it is used for a non-residential purpose. On the factual consideration that though the tenant was putting it to a non-residential purpose, the property in his occupation was not really a shop but a room in a residential premises, the objection regarding the maintainability of the petition cannot be sustained. 4. As regards the bona fide need of the petitioner, the contention of the landlord was that he was old and infirm and he has been taking the plea that it was difficult for him to climb upstairs and CR No.2442 of 2009 3 wanted the ground floor portion for his residence. The authorities below adverted to the old age of the petitioner, considered the admission of RW-2 who spoke about the fact that the landlord was hospitalized and he had been a patient for more than 15 days and also referred to the falsity of the case of tenant who made bold to deny even the old age of the landlord found the requirement to be justified. It adopted a reasoning that the tenant cannot dictate to the landlord which amongst the portions that the landlord could seek for eviction. The learned counsel for the petitioner argued that no medical evidence has been placed before the Rent Controller to show that the landlord was taking treatment and that he was having any difficulty in climbing upstairs. A documentary proof would be necessary in a matter where no other proof was available but, there is admission on the side of the respondent RW-2 who had admitted that the landlord was in the hospital and was an in-patient. The bona fides of the requirement of the landlord is also disputed by the tenant by stating that the landlord had earlier attempted to evict him on the ground that he has ceased to occupy the premises and finding that the petition was dismissed, he has approached to this Court by manipulating the case on a different ground which was not bona fide. The bona fides of the landlord will always be considered on the evidence adduced between the parties and the quality of evidence evokes confidence in the authorities that adjudicate on the bona fides of the need. The fact that the landlord lost in an earlier round for a different ground cannot itself be the test where the landlord requires for his bona fide needs. A landlord who had no difficulty at one time in his younger days in climbing upstairs cannot lose his right, if such a need arises by the passage of time. He has not sought for eviction on the same ground at the previous time or on the ground that he applied for eviction at a previous time which was found to be not true. The two authorities below have considered the bona fide needs of the landlord in CR No.2442 of 2009 4 their proper factual context and I do not think that the reasoning suffers from any legal vice to be susceptible in revision. The revision petition is dismissed. Time for eviction two months. (K. KANNAN) JUDGE May 11, 2009 archana