IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.13/2008 Reserved on:19.11.2008 Decided on: 6.1.2009 Pyare Lal Sood. …Petitioner. Versus Vivek Sharma …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. Satyen Vaidya, Advocate. For the Respondent : Mr. Gulzar Rathore, Advocate.. Rajiv Sharma, J. This is tenant’s revision preferred under section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 against the judgment dated 5.11.2007 passed by the learned Appellate Authority, Shimla in the Civil Misc. Appeal No. 34-S/14 of 2007. Brief facts necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as ‘the landlord’ for convenience sake) filed eviction petition against the petitioner-tenant (hereinafter referred to as ‘the tenant’ for convenience sake) on the ground that the premises in question are bonafidely required by him for his 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 personal use and occupation. It is also averred that the landlord was not occupying any other residential building/accommodation and has not vacated such building within five years of the filing of the application for eviction. The landlord is a lawyer by profession and he required at least two living rooms for his and for occupation of his family members and one room for guests and office. It is further averred that the tenant after the commencement of the Himachal Pradesh Urban Rent Control Act, 1987 has ceased to occupy the premises in question continuously for a period of 12 months without any reasonable cause. It is also averred that the tenant has left the premises long back and had shifted to his building at 98, Lower Bazar Shimla and had been residing there. It is averred that the tenant without the consent of the landlord has carried out material addition and alterations in the premises in question, which acts of the tenant materially impaired the value and utility of the premises in question. The landlord had purchased the property in question with his two brothers from its previous owner vide sale deed No. 281 dated 14.8.1997. The tenant had inherited the tenancy rights from Sh. Kirpa Ram Sood after his death. The application was contested by the tenant by filing a written reply. The preliminary objection was raised that the application was not maintainable and the same was filed with malafide intention and the same was also not verified in accordance with law. The Rent Controller had framed the following issues: 1. Whether the premises in question are bonafidely required by the petitioner for his personal use and occupation as alleged? OPP 2. Whether the respondent after the commencement of H.P. Urban Rent Control Act, 1987 ceased to occupy the premises continuously for a period of 3 12 months without any reasonable cause as alleged? OPP 3. Whether the respondent after the commencement of the H.P. Urban Rent Control Act, 1987 has built and acquired the vacant possession of residential building as alleged? OPP 4. Whether the respondent unauthorizedly and without the consent of the landlord/applicant has carried out material addition and alteration in the premises which has materially impaired the value and utility of the premises as alleged? OPP 5. Whether the application is not maintainable in its present form? OPR 6. Whether the application lacks material particulars? OPR 7. Whether the application has not been signed and verified in accordance with law? OPR 8. Relief.” The learned Rent Controller has decided issues No.1 and 5 together. He has returned the findings in favour of the tenant on issues No. 1 and 5. Issue No.2 was not pressed by the landlord. Issue No.4 has been decided against the landlord. However, the learned Rent Controller has decided issue No.3 in favour of the landlord. Issue No.6 and 7 were decided against the tenant. The learned Rent Controller after deciding issue No.3 in favour of the landlord has directed the tenant to handover the vacant possession of the suit premises to the landlord. The landlord and tenant filed separate appeals before the Appellate Authority, Shimla. The tenant had assailed issue No.3 before the Appellate Authority which was decided against him. The appeal preferred by the tenant was assigned Civil Misc. Appeal No.26-S/14 of 2007. The landlord has assailed the finding on issue No.1 primarily and his appeal 4 was assigned Civil Misc. Appeal No. 34-S/14 of 2007. The learned Appellate Authority has framed the following points for determination: 1. “Whether the impugned order is liable to be set aside, in Civil Misc. Appeal No. 26-S/14 of 2007, as prayed for? 2. Whether the impugned order is liable to be set aside, in Civil Misc. Appeal No.34-S/14 of 2007, as prayed for? 3. Relief.” The learned Appellate Authority decided both the appeals together. He has answered point No.1 in favour of the tenant in Civil Misc. Appeal No. 26-S/14 of 2007. The appeal bearing No. 34-S/14 of 2007 preferred by the landlord was partly allowed as per operative portion of the judgment. The present appeal has been preferred by the tenant against the Civil Misc. Appeal No. 34-S/14 of 2007 dated 5.11.2007. Mr. Satyen Vaidya, Advocate has strenuously argued that the judgment passed by the learned Appellate Authority in Civil Misc. Appeal No. 34-S/14 of 2007 is not sustainable. He has vehemently argued that the premises in question are residential in nature and the same cannot be converted to non-residential premises under law. His next submission is that the judgments relied upon by the learned Appellate Authority are not applicable to the present facts and circumstances of the case. Mr. Gulzar Rathore, Advocate has supported the judgment dated 5.11.2007 passed by the learned Appellate Authority. It is not disputed by the parties that the respondent is a landlord of the premises. He is a practicing Advocate and his certificate of enrolment is Ex.PW-1/B. The eviction of the tenant was sought, inter alia, on the ground that the suit premises are bonafidely required by the landlord for his personal use and occupation as he was not occupying any other 5 residential building/accommodation and has not vacated such residential premises within five years of the filing of the application for eviction. He requires at least two living rooms for him and his family and one room for guests and office. The Landlord has appeared as PW-1. He has deposed that the premises were purchased by him and his brothers Amit Sharma and Abhishekh Sharma vide sale deed Mark ‘A’. He is maintaining the suit property and his brothers had given him a power of attorney. His family consists of his wife and a small child. The premises in question were required bonafidely by him for his residence and office. He has further deposed that except the suit premises he had no other building in the Shimla urban area and he has neither vacated nor acquired such building/accommodation during preceding five years. In his cross- examination, he has stated that the building in Totu belongs to his mother which has seven floors consisting of 15-20 sets. The Rent Controller decided issue No.1 against the landlord. However, the Appellate Authority has decided this issue in favour of the landlord. It is not in dispute that the landlord is an Advocate by profession. The building at Totu belongs to his mother. He is not in possession of any office in Shimla. The learned Appellate Authority has rightly taken into consideration the proximity of the court premises vis-à-vis the premises in question. It will be inconvenient for him to open office at Totu. Coming and going to Totu will consume considerable time. The proximity of the premises in question to the Court premises will definitely help his career. It is not that the landlord is seeking the accommodation for his lawyer’s office alone. His precise case before both the courts below is that he wanted the accommodation for his family and only one room was required as office and guest room. It has come in the evidence that the premises in question will be a complete unit. The learned Rent Controller has given 6 undue importance to the property owned by the mother of landlord in Totu. The property in question has been purchased by the landlord with his brothers. He has absolute right to get the accommodation if it is required bonafidely by him. The findings recorded by the appellate authority on this issue are in accordance with law. The learned Appellate Authority has taken into consideration the basic parameters required to be seen while deciding the issue of bonafide requirement by the landlord. The submission of Mr. Satyen Vaidya that the nature of the premises would be changed from residential to non-residential merits rejection. It has already been taken note of by this Court in the earlier portion of the judgment that the landlord wanted the premises in question for his residential purpose and only one room was required as lawyer’s office and guest room. Predominantly the requirement was for residential purposes and only one room was required for the lawyer’s office. The plea raised by Mr. Satyen Vaidya is no more res integra in view of the definitive law laid down by the Hon’ble Supreme Court in Hiralal Kapoor versus Prabhu Chaudhary 1988 (1) RCR 240. In this case the landlord was an Advocate, who sought ejectment of tenant from residential premises on the ground of bonafide requirement for his family and himself. He wanted to use part of the premises for his office. Their Lordships further held that merely if landlord intended to use part of the premises for purpose of his office bonafide requirement of landlord for purpose of residence will not stand vitiated or become extraneous to provisions of section 14 (1) (e) of the Delhi Rent Control Act. The Court ruled: (pp 245 para 10): “10. In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire 7 premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to S. 14(l). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an off ice cannot be a consideration extraneous to the scope and content of cl. (e) of the proviso to S.14(l).” Consequently in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court coupled with the fact that the premises in question were required by the landlord predominantly for residential purposes and only part of it was required to be used as lawyer’s office, the nature of the premises in question will not change to non-residential from residential as per section 2 (e) of the Himachal Pradesh Rent Control Act, 1987. Accordingly, there is no merit in this revision petition and the same is dismissed. There will, however, be no order as to costs. 6.1.2009 (Rajiv Sharma ), J. *awasthi*