IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 148 of 2004 Reserved on : 17.6.2010. Date of Decision: 5.7.2010 Som Nath …Petitioner Versus Gian Chand ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate. For the Respondent : Mr. K.D.Sood, Advocate. Kuldip Singh , Judge The learned Rent Controller, District Kinnaur Camp at Rampur Bushahr on 16.12.2003 has passed ejectment order against petitioner in Rent Petition No. 1-2 of 1996 on the grounds of bonafide need of the accommodation and that tenant has impaired the value and utility of the premises. The ejectment order dated 16.12.2003 has been affirmed by the learned Appellate Authority, Kinnaur Division at Rampur Bushahr on 29.7.2004 in Rent Appeal No. 01 of 2004. In these circumstances, the petitioner who is tenant has 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 filed the revision under Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (for short ‘Act’). 2. The facts, in brief, are that respondent had filed the ejectment petition under Section 14 of the Act against the petitioner on various grounds including the grounds of bonafide need of the accommodation and that the petitioner has impaired the value and utility of the premises. The petitioner contested the petition and denied the claim of the respondent. The learned Rent Controller had returned the issues of bonafide need of accommodation and impairment of the premises in affirmative in the order dated 16.12.2003 which has been affirmed by the learned Appellate Authority on 29.7.2004. 3. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the petitioner that the authorities below have misconstrued and misinterpreted Section 14 of the Act as well as definition of ‘residential building’ and ‘non- residential building’ provided in the Act. The respondent has himself pleaded in the ejectment petition that the premises in question is non-residential building, therefore, no amount of evidence can be considered on behalf of the respondent for returning the finding that the premises is residential building. Once the premises is non-residential building the ground of ejectment of bonafide need of the accommodation is not available to the respondent. It has been submitted that the 3 evidence of impairment led by the respondent is also in deviation to his pleadings on the issue and, therefore, such evidence also cannot be taken into consideration for returning the findings on impairment of the premises. 4. The learned counsel for the respondent has supported the impugned judgment and has submitted that the two authorities below have concurrently recorded a finding of fact that respondent has proved bonafide need of the premises and that the petitioner has impaired the utility of the premises. It has been submitted that the petitioner has not made out any case for interference, prayer for dismissal of the revision was made by the learned counsel for the respondent. 5. The non-residential building has been defined in Section 2 (e) as follows:- “ Section 2. Definitions. In this Act, unless the context otherwise requires, (a) to (d) xx xx xx (e) “non-residential building” means a building being used - (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein; PROVIDED that if a building is let out for residential and non-residential purposes, separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as non-residential building. 4 Explanation. – Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.” Section 14 (2) (iii) & (iv) is as follows :- “ (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied – (i) & (ii) xx xx xx (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or (iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of the buildings in the neighbourhood; or (v) xx xx xx the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three month in the aggregate.” The Section 14 (3) (a) (i) is as follows:- “(3). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession – (a) in case of residential building, if – (i) he requires it for his own occupation : Provided that he is not occupying another residential building owned by him, in the urban area concerned : Provided further that he has not vacated such a building without sufficient cause within five 5 years of the filing of the application, in the said urban area; or”. 6. In para 4 of the petition, the respondent has pleaded that initially the premises were non-residential but now converted into residential one. In para 18 (a) (2) of the petition the petitioner has pleaded that the tenant has changed the user of the premises from non-residential to residential without the consent of the landlord. In the petition, it has been pleaded that premises were let out to the tenant in March, 1982. The petitioner has contested the petition by filing the reply wherein he has pleaded that premises was let out for residential purposes. The prayer was made for dismissal of the petition. 7. The grounds of eviction in the revision are bonafide requirement of the premises in question by the landlord and material impairment of the premises by the tenant. PW-1 Gian Chand landlord has stated that he had rented out the premises to tenant in the year 1981-82 for running a shop. The tenant instead of shop used the premises for residence. The tenant had broken the outdoor plate, chajja and window panes. One corner was also broken, the original door was closed and on the other side, the door was opened. He had not taken the permission from the landlord for converting the premises from non-residential to residential. In cross-examination, he has stated that advance was given by petitioner for running the shop. He has referred to rent note 6 Ex.DA. He has stated that second rent note was executed in the year 1982. PW-2 Parkash Chand has stated that shape of premises in question is like a shop having wooden planks in the front. PW-2 has not stated anything regarding the impairment of the premises. PW-3 Takhu Ram is the cousin of the respondent. He has not stated anything about the impairment of the premises in question. 8. RW-1 Som Nath has stated that he had taken premises in question for residence. He has stated that he had not done any impairment in the premises. It was suggested to RW-1 in cross-examination that disputed house was given to him for running the shop which he converted into a residence. It was also suggested to RW-1 that there were steps on both sides of the premises and he has removed the steps of one side. RW-2 Sita Ram was also given suggestion that the premises in question was given for running shop which was converted into a residence. 9. It emerges from the evidence led by the landlord and the suggestions given to the witnesses of the tenant that the premises in question was rented out to the tenant for running the shop which according to the landlord was converted into residence by the tenant. PW-2 Parkash Chand has stated that shape of the premises is like a shop having wooden planks in the front. In the petition, it has been pleaded that the tenant has changed the user of the premises from non-residential to residential. PW-1 has referred to rent 7 note Ex.DA but no such rent note is on record. He has stated that second rent note was executed in the year 1982 but that rent note has not been produced. It is not the case of the respondent that second rent note is with the tenant. Therefore, it is reasonable to infer that second rent note is with the landlord who has not produced the same and, therefore, adverse inference is to be drawn against him. 10. The respondent-landlord will have to stand on his own feet for seeking eviction of the petitioner. He cannot be permitted to project the case that since tenant has stated that the premises was rented out for residence, therefore, the premises is a residential premises. It cannot be ignored that respondent himself has pleaded and stated on oath that the premises was rented out for shop and it is non-residential. Simply because the petitioner had been residing in the premises while running the shop will not take out the premises from the definition of non-residential building. The definition of non-residential building means a building which is being used mainly for the purpose of business or trade or partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein. The pleaded and proved case of the landlord does not take out the premises from the definition of non-residential building. It emerges from the pleadings of landlord and evidence that premises in question is non-residential. 8 11. In para 18 (2) of the reply the tenant has pleaded that premises was let out for residential purpose. Similarly in his statement as RW-1 he has stated that the premises was taken for residence. The pleaded stand and statement of tenant are to be considered in the context of the case. The landlord has alleged that premises was rented out for shop but tenant has converted into a residence. In this context tenant has taken the stand that it was given for residence. In other words, the tenant intends to say that premises was taken on rent for shop and residence and not for shop only. In his reply and statement tenant has not stated that premises was not taken for shop. As RW-1 he has stated in Rampur Bazar he has not constructed a residential building. It is the case of the landlord that tenant is using the premises as residence. 12. The learned Appellate Authority in the impugned judgment has not considered the pleadings of the landlord wherein he has pleaded that initially the premises was non- residential but now converted into residential one. In para 18 (a) (2) the landlord has pleaded that the tenant has changed the user of the premises from non-residential to residential without the consent of the landlord. The learned Appellate Authority has also not considered the statement of landlord as PW-1 when he has stated that he had rented out the premises to the tenant in the year 1981-82 for running a shop. The tenant instead of shop used the premises for 9 residence. The learned Appellate Authority has relied agreement Ex.DA dated 5.1.1978 which is not on record. In the petition itself it has been pleaded that the premises was let out in March, 1982, therefore, there is no question of renting out of the premises by the respondent to petitioner vide agreement Ex.DA dated 5.1.1978 for residential purpose. The landlord has stated that there is another rent note but that has not seen the light of the day. The learned Appellate Authority in light of material on record has erred in returning the finding that the premises was rented out for residential purpose. 13. The bonafide need of the accommodation is available to the landlord under Section 14 (3) (a) (i) when the premises is a residential building. It is not available to the landlord for non-residential building. It has already been held above that the premises in question is non-residential building, therefore, ground of eviction of bonafide requirement of the premises by the landlord for residence is not available to the respondent. The two authorities below have erred in deciding the issue No.1 against the petitioner-tenant. The findings of the two authorities below on issue No.1 are set- aside. 14. On issue No.2 of material impairment the pleadings of the landlord are in para 18 (5) of the petition where he has pleaded that tenant has damaged the premises by breaking the projection and the glass panes of the windows 10 and thus has caused the damage to the premises. In other words, the pleaded case of the landlord for material impairment is breaking of projection and window glass panes. In evidence the landlord has stated that the tenant has broken the out door plate, chajja and window panes, one corner, original door was closed and on the other side the door was opened. It was suggested to RW-1 Som Nath tenant in cross- examination that he has removed one side steps of the premises. PW-2, PW-3 the witnesses of the landlord have stated nothing about the impairment of the premises. The landlord himself has not stated in his statement that acts of the tenant have impaired the value and utility of the premises. The landlord has not examined any expert so as to prove that by the alleged acts of the tenant the value and utility of the premises has been impaired. There is variance between the pleadings and the proof on the point of material impairment projected by the landlord. The landlord has tried to improve his case on material impairment on every step. The learned Appellate Authority has not considered the variation between the pleadings and the proof on the point of material impairment nor he has recorded a specific finding that the alleged acts of the tenant have materially impaired the value and utility of the premises. Therefore, the findings recorded by the two courts below on issue No.2 are liable to be set-aside. 15. The learned Appellate Authority has proceeded altogether on new ground of eviction. It has been held that 11 the tenant has acquired and built a double storeyed building within the limits of Municipal Council, Rampur Bushahr, therefore, he is liable for eviction from the premises under Section 14 (3) (iv) of the Act, which is as follows:- “The tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirement.” There is no issue that the tenant is liable for eviction on the ground that he has acquired, built or allotted a residence reasonably sufficient for his requirement. It has already been held that tenanted premises is a non-residential building. The ground of eviction under Section 14 (3) (iv) is available for residential building. Therefore, the learned Appellate Authority has erred in returning the finding that the tenant is liable to be evicted under Section 14 (3) (iv) of the Act. 16. The two authorities below have not properly appreciated the pleadings, evidence and the Act regarding the grounds of eviction of bonafide need of accommodation and material impairment. The findings recorded by the two authorities below do not emerge from the pleadings and evidence which has come on record and discussed above, the impugned judgment is not sustainable. 17. No other point was urged. 18. The result of the above discussion, the revision is allowed, judgment dated 29.7.2004 passed by the learned Appellate Authority, Kinnaur Division at Rampur Bushahr in 12 Rent Appeal No. 01 of 2004 and order / judgment dated 16.12.2003 passed by the learned Rent Controller, District Kinnaur, Camp at Rampur Bushahr in Rent Petition No. 1-2 of 1996 are set-aside and the petition is dismissed with no order as to costs. July 5, 2010. ( Kuldip Singh ) (GR) Judge.