IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.3951 of 2006 (O&M) Date of Decision : 25.08.2009 Ved Parkash .....Petitioner versus Aman Pujara .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.Arun Jain, Senior Advocate, with Mr.Amit Jain, Advocate, for the petitioner. Mr.Sanjay Vij, Advocate, for the respondent. -.- 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? --- ORDER Surya Kant, J. (Oral) This revision petition is directed by the petitioner-tenant who has been ordered to be evicted from the demised premises by the Rent Controller, Gurgaon vide order dated 19.4.2005 which has been further upheld by the Appellate Authority, Gurgaon, vide its judgment dated 3.6.2006. C.R. No.3951 of 2006 (O&M) 2 The demised premises is a portion of the residential house bearing No.301/5 (New No.787/8), situate in Jacobpura, Gurgaon and is comprising two rooms on the ground floor abutting the main road, shown in red colour in the site plan and was let out to the petitioner in the year 1989 on payment of rent of Rs.1250/- per month. The remaining portion of the house remained in possession of the respondent-landlord. The respondent-landlord instituted the eviction proceedings under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short `the Act'), inter-alia, alleging that (i) the petitioner has failed to pay the arrears rent; (ii) the premises is required by the landlord for his personal use and occupation; (iii) the petitioner has caused material impairment in the value and utility of the demised premises and (iv) it has become a source of nuisance as the tenanted premises was being used by the petitioner for storage of fruits where the employees and servants of the tenant keep on working and stay during the night. The petitioner contested the eviction application and one of the preliminary objection taken was that the property is situated in a `commercial' area having shops on both sides of the road for the last 50 years and, therefore, the premises cannot be got vacated for residential purpose; the premises was taken on monthly rent of Rs.200/- which was later on enhanced to Rs.400/- per month and the same is not at the rate of Rs.1250/- per month, as claimed by the landlord. The other pleas taken by the respondent were also denied. The petitioner tendered the arrears of rent @ 1250/- per month, though under protest and with liberty to get the C.R. No.3951 of 2006 (O&M) 3 excess amount refunded or to adjust against the future rent. The parties went on trial on the following issues: “(1) Whether the respondent is liable to be ejected from the house in question on the ground mentioned in para No.6 of the petition? OPP. (2) Whether the petition has not been filed as per rules and procedure of the Haryana Urban (Control of Rent and Eviction) Act, 1973? OPP (3) Whether the petitioner has no cause of action to file the present petition? OPR (4) Whether the petitioner has not come in the Court with clean hands? OPR (5) Whether the petition is not maintainable in the present form? (6) Whether the petitioner is not entitled to any relief? OPR (7) Relief.” The controversy revolves around mainly two issues, namely, whether the let out portion constitute a part of the residential house and/or it being a commercial property could not be got vacated for the residential purpose? Secondly, whether the respondent-landlord bonafidely requires the demised premises for his own use and occupation? As regards the first issue, the Rent Controller found that as per the site plan Ex.PW5/1, the portion in possession of the respondent- landlord consists of one bed room, store, kitchen, verandah, open space, gallery and toilet. The Rent Controller further found that the landlord has two grown up school going children for whom he requires a separate bed C.R. No.3951 of 2006 (O&M) 4 room, besides his two married sisters who frequently visit his house in addition to other relatives and, therefore, one bed room is required to be maintained for the guests. One of the son of the respondent-landlord was found to be suffering with an ailment which necessitates his isolation in a separate room to avoid infection. The Rent Controller accordingly came to the conclusion that the requirement of additional two rooms (one bed room and one store) by the respondent-landlord is genuine and is fully justified. As regards the second issue, the Rent Controller compared the site plan produced by the landlord (Ex.PW5/1) with the site plan (Ex.RW2/1) produced by the petitioner-tenant as well as another site plan (Ex.R-2) brought on record by Mr.Y.D.Adlakha, Chartered Engineer and Valuer (RW1) and after taking notice of the existence of a kitchen, toilets and verandah etc., concluded that the demised premises was constructed and used by the landlord for residential purposes only. No records were produced by the petitioner-tenant from the Municipal Committee in support of his plea that the tenanted premises is a `commercial building'. Aggrieved, the petitioner-tenant preferred an appeal and the Appellate Authority also vide its judgment under challenge dated 3.6.2006 has affirmed the findings returned by the Rent Controller, Gurgaon. It appears that the petitioner raised a new plea before the Appellate Authority that the Municipal Committee, Gurgaon has passed a resolution declaring the entire area where the demised premises is located, as `commercial area' and as such the landlord is not entitled to seek C.R. No.3951 of 2006 (O&M) 5 eviction of the petitioner-tenant to utilize the tenanted premises for residential purpose. The said contention has not found favour with the Appellate Authority for the obvious reason that the landlord cannot be compelled to use his residential house for commercial purposes against his wishes. The resolution, if any, enables the landlord to apply and seek necessary sanction to convert his residential house into a commercial building. The Municipal resolution cannot be read into to mean that the landlord is left with no option but to use the premises for commercial purposes. I have heard learned counsel for the parties at some length and perused the impugned orders as well as the site plan Ex.PW5/1. The decisions of this Court in “State Bank of Patiala versus S.Zulzuahar Singh Virk and others, (2003 HRR 159); Parmeshwari Devi versus Krishan Chander (2003 HRR 197); Gopi Ram versus Jagan Nath (2003 (1) RCR 664), and Sudharshan Kumar Bhatia versus Dharam Pal Sharma (2009 (1) RCR 279), relied upon by the learned counsel for the petitioner have also been gone through. In my considered view, the contention raised by the petitioner that since the demised premises is a `commercial building' and the landlord cannot seek his eviction for bonafide personal necessity for residential purpose, is wholly misconceived and is not acceptable, as there is a concurrent finding returned by the Courts below that the demised premises was constructed as a residential house out of which two rooms abutting the main road were let out to the petitioner-tenant. No C.R. No.3951 of 2006 (O&M) 6 interference in the said finding of fact is called for by this Court. So far as the resolution passed by the Municipal Committee permitting an owner to use the residential house for commercial purposes is concerned, suffice it to say that it is for the landlord as to whether or not he wants to convert his residential building to a commercial building. Neither the Municipal Committee nor the tenant can dictate or force its terms for conversion of the house to a `commercial building'. Owing to the extended family of the respondent-landlord and consequential need as also keeping in the future requirement of his children in view, he has a genuine requirement for the demised premises. The landlord is the best judge to assess his requirement without any advice from the tenant. The decisions cited by learned counsel for the petitioner are also distinguishable for the reason that there it stood proved on record through the rent notes etc. that the premises was rented out for `commercial purpose' only, but that is not the position in the case in hand. No other meaningful argument has been advanced by the learned counsel for the petitioner. The revision petition is accordingly dismissed. 25-08-2009 (SURYA KANT) Mohinder JUDGE