Civil Revision No. 3296 of 2001 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 3296 of 2001 Date of Decision: 11.12.2008 Khazan Singh and Others …Petitioners Versus Prithvi Singh Sharma ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Lokesh Sinhal, Advocate for the petitioners. Mr. C.B.Goel, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been filed by the legal representatives of tenant Jai Karan on the ground that they had inherited the tenancy. In the present case, eviction petition was preferred by Prithvi Singh Sharma. The eviction petition was instituted on 4.8.1987. It was stated in the rent petition that petitioners herein are the sons of Jai Karan who had expired in the month of January 1987 and now they are tenant in the demised premises at a monthly rent of Rs.180/- per month including house tax and electric charges. It was further stated that the house is in question was let out to the deceased Jai Karan for his residence and no fair rent of tenancy has been fixed. In para 5 of the Civil Revision No. 3296 of 2001 2 eviction petition, it was stated that tenant is liable to be evicted on the ground that he has failed to make payment of arrears of rent including house tax and electric charges from July 1984. Second ground pleaded was that the respondents had changed the user and occupation of the house in question to that of commercial without the consent and knowledge of the petitioner. Thirdly that the respondent/tenant was a Band Master and he used to play drums, bands and flute in loud manner, therefore, the same caused nuisance to the inhabitants of the vicinity. It was further stated that the premises is required for personal necessity as son of the landlord who was previously in the foreign country has come back to India in the month of January 1987. it was stated that the petitioner was having small portion of house in his own possession. He is having one room and two stores on the ground floor, which is not sufficient for him, as his son and his family, had just returned from foreign country. Notice of the petition was issued to the legal representatives of Jai Karan. They appeared and filed the written statement, took a preliminary objection that they are not residing in the demised premises as the same is not a residential house but a shop. It was further stated that the petition is bad for non-joinder of the necessary parties and the particulars as required by law have not been furnished. On merits, it was stated that they were tenant of a shop and not of a residential house. Rate of rent was also disputed. It was stated that it was not Rs.180/- per month but Rs.100/- per month. It was stated that the rent had been paid but no receipts were issued. Change of user and occupation was also denied. It was admitted that the petitioners are Band Masters and are Civil Revision No. 3296 of 2001 3 running their business under the name & style of M/s Saraswati Band, Gurgaon. They keep their instruments and uniform of the workers in the shop in dispute. Therefore, the ground of nuisance was also denied. It was stated that the landlord and his son were having sufficient accommodation, therefore, ground of personal necessity is not made out. Learned Rent Controller framed the following issues:- 1. Whether the respondents are tenants over the disputed house on a monthly rent of Rs.180/- including house tax and electric charges? OPP 2. Whether the respondents are in arrears of rent from July, 1984 till filing of the petition, if so to what effect? OPP 3. Whether the respondents have changed the user and occupation of the house in question from residential to commercial? If so, to what effect? OPP 3A. Whether the respondents No. 4 and 5 are liable to be ejected from the rented premises on the grounds mentioned in the petition? OPP 4. Whether the respondents have caused a permanent nuisance to the petitioner as well as the inhabitants as alleged. If so to what effect? OPR 5. Whether the petitioner requires the Civil Revision No. 3296 of 2001 4 disputed house for his own personal use? If so to what effect? OPR. 6. Whether the petition is bad for non joinder of necessary parties? OPR 7. Whether the petition is liable to be dismissed on the grounds alleged? OPR 7A. Whether the petitioner has no cause of action against respondents No.4 & 5 as alleged in para No.5 of the W.S.? OPR 8. Relief. Thereafter, parties led their evidence. Landlord examined Devinder Kumar as PW.1, Sunil Kumar as PW.2 and he himself appeared as PW.3 and one Vijay Kumar, Clerk from Municipal Committee, Gurgaon was examined as PW.4. Tenant examined Vijay Singh as RW.1, Ram Kumar as RW.2, Rama Nand as RW.3 and Mahender Singh, Lamberdar, as RW.4. Learned Rent Controller held the rate of rent to be Rs.180/- per month. It further held that the rent was not tendered in accordance with the rent determined, therefore, the issue was decided against the tenant. Learned Rent Controller also decided issues No.3 and 4 in favour of the landlord. It further held that there has been change of user from residential to the commercial and permanent nuisance has been caused by the tenant. Aggrieved against the order of learned Rent Controller, an appeal was filed. Learned Appellate Authority upheld the assessment of rent as Civil Revision No. 3296 of 2001 5 Rs.180/- per month. It further held that since the rent at the rate of Rs.100/- was tendered, therefore, it was short and invalid. Learned Appellate Authority disbelieved the simple, bald, and uncorroborated statement of Rama Nand RW.3 that the rent was paid but no receipt was issued. The Court further held that house was rented out for residential purposes but the same was used for commercial purpose, therefore, there is a change of user on the part of the tenants. The Court drew support from Ex.P11 Municipal House Tax Assessment Register to hold that the tenanted premises has been described as Baithak i.e. a place for residential purposes and not for commercial use. The Court further held that vehicles carrying musical instruments were parked outside the house and the tenants are running the business of Band Master. Rama Nand, RW.3 , admitted that the son of landlord who was in foreign country has come back to India. It further held that there are eight small or big rooms in the building, out of which two are outside “Baithaks” one in question and other has been got vacated during the pendency of proceedings. Therefore, it upheld the ground of personal necessity also. Two Courts below have returned a concurrent finding of fact against the tenant. It has been stated by Mr.Lokesh Sinhal, Advocate, appearing for the petitioner-tenant that after the pronouncement of judgment by Hon'ble the Apex Court in Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation 2002(1) Rent Control Reporter 514 even if a tender made is short, the deficiency can be made good later and if the tenant is ready and willing to make good the deficiency, therefore, eviction on the ground of arrears of rent is not permissible. Civil Revision No. 3296 of 2001 6 Mr. C.B.Goel, Advocate, appearing for the respondent/landlord has nothing in his arsenal to controvert this legal submission of Mr. Lokesh Sinhal, Advocate, therefore, it is held that tenant cannot be evicted on the ground of non-payment of rent as any deficiency in the tender can be made good later, by giving an opportunity to the tenant. Regarding the ground of nuisance, it has been proved by the landlord by examining his witnesses, that was a room in question, is a Baithak, was let out to the tenant for residential purposes. At the time of filing of written statement, tenant had taken a stand that the premises was let out for running a shop and he is carrying on his business of Band Master. Two Courts below have rightly held that the premises have been let out for residential purposes and the tenant used to carry the business of Band Master and the photographs have been taken which show that the tenants parked their vehicle having musical instruments fixed therein. Therefore, a room let out for residential purpose, has been changed to shop and not only it amount to change of user, but by playing musical instruments in a locality it can be safely inferred that the tenant has caused nuisance in the locality. To controvert these observations Mr. Sinhal has stated that Devinder Kumar PW/.1 had admitted in his cross-examination that front portion of the residential houses are being used for commercial activities as shops in the locality. Mr. Sinhal has further drawn my attention to the observation of learned lower Appellate Court wherein it has been noticed that the whole area of locality was only a residential but by passage of time, certain front portions have been used for commercial activities. Learned Appellate Authority has further stated that the tenant Civil Revision No. 3296 of 2001 7 was having another shop near Bhuteshwar Mandir and, therefore, there was no rhyme or reason for having two commercial establishments at two different places and thus, it was inferred that the present premises were rented out for residential purposes. Mr. Lokesh Sinhal, Advocate, has placed reliance upon judgment rendered in Parmeshwari Devi v. Krishan Chander 2003 Haryana Rent Reporter 197 to state that in case a portion of residential house was rented out for commercial purpose, even though it has been recorded in the municipal record as residential house, then landlord cannot seek eviction of the same on the ground of personal necessity for residential purposes. To buttress this argument, Mr. Sinhal has further stated that this shop has no connectivity with the main house as it has come in the evidence that the room has been used as a Baithak. Since this has come up in evidence that the room in dispute is a Baithak, therefore, the argument that it has no connectivity with the main house cannot not be accepted. From the oral evidence, two Courts below have rightly held that at the time of inception of tenancy, the room was let out for residential purpose and there has been change of user and playing of musical instruments amount to causing nuisance. Therefore, on all these grounds, tenant is liable to be evicted. Mr. Goel to project the personal necessity has stated that the petitioner has retired as a Teacher. The present petition was instituted in the year 1987. During pendency of eviction proceedings in the last 21 years, family needs of the landlord have grown. At present he is having a son who has four children and the landlord has two daughters and two sisters who visit the landlord on and off. It is stated that the entire Civil Revision No. 3296 of 2001 8 premises consist of eight rooms. To assail this, Mr. Sinhal has stated that the landlord has not come to the Court with clean hands. Initially it was stated in the eviction petition that he is in possession of the two rooms. In his examination-in- chief, the landlord has stated that he is in possession of six rooms and his requirement is of six rooms and in cross-examination he has stated that he is in possession of seven rooms. Therefore, it is stated that personal necessity qua the room which was on rent with the tenant is not made out. With the passage of time, needs of family have changed and in view of the large family, the entire premises is required by the landlord. Thus, on the ground of personal necessity also, the tenant is required to be evicted. Hence, in view of the concurrent finding of fact recorded by the two Courts below, there is no merit in the present revision petition and the same is dismissed. Two months time is granted to the tenant to hand over the peaceful vacant possession of the demised premises to the landlord. (Kanwaljit Singh Ahluwalia) Judge December 11, 2008 “DK”