CR No.7915 of 2010 (O&M) -1- CR No.8327 of 2010 (O&M ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CR No.7915 of 2010 (O&M) Date of Decision:22.02.2011 Sh. Satpal Chadha ....Petitioner Versus Satish Kumar and another ....Respondents (2) CR No.8327 of 2010 (O&M) Date of Decision:22.02.2011 Brij Mohan ....Petitioner Versus Satish Kumar and another ....Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. Rajiv Kataria, Advocate, for the petitioner in CR No.7915 of 2010. Mr. Kanwaljit Singh, Senior Advocate, with Mr. Puneet Bansal, Advocate, for the petitioner in CR No.8327 of 2010. Mr. Avnish Mittal, Advocate, for the respondents. * * * * * Rakesh Kumar Jain, J. This order shall dispose of two revision petitions, namely CR No.7915 of 2010 titled as `Sh. Satpal Chadha Vs. Satish Kumar and another' and CR No.8327 of 2010 titled as `Brij Mohan Vs. Satish Kumar and another'. In both the revision petitions, the landlords are the same who have filed similar eviction petition against two tenants in respect of two shops in question. In brief, the facts of CR No.7915 of 2010 are that tenant Satpal Chadha is in occupation of one room of property No.4163, Durga Charan Road, CR No.7915 of 2010 (O&M) -2- CR No.8327 of 2010 (O&M ******* Near Subzi Mandi Chowk, Ambala Cantt. at a monthly rent of `50/- for doing the business of clothes. His eviction was sought on the ground that he was in arrears of rent from 01.01.2003 to 31.12.2005 amounting to `1,800/- and that Satish Kumar (landlord) requires the said shop for the business of readymade garments by his younger son Gaurav who is unemployed youth of 23 years of age. In reply, the personal need of the landlord was denied and rent was tendered, therefore, the said ground of eviction was over. It was also alleged that the house bearing No.4162-63 with its sub numbers is a very big building having an area of 300 square yards. The room (shop) adjoining to the room in question is about 4 times in size than the room under the tenancy of the tenant and both the sons of respondent No.1 Satish Kumar including the said Gaurav are well settled. It was also submitted that ejectment on the ground of personal necessity for non-residential purpose from a portion of residential building is not maintainable. Replication was filed and from the pleadings of the parties, following issues were framed by the learned Rent Controller on 17.09.2007: - “1. Whether the petitioners requires the property in question bearing No.4163, Durga Charan Road, Near Subzi Mandi Chowk, Ambala Cantt. on the ground as mentioned in the petition?OPP. 2. Whether the petitioners have no locus standi to file the present petition?OPP. 3. Whether the petition is not maintainable?OPR. 4. Relief.” Both the parties led their respective evidence. On the ground of personal necessity, the learned Rent Controller held that dominant purpose of the said building is residential and thus it can be safely concluded that it is a residential building and as such the premises in question being part of residential building cannot be got vacated for opening a shop, which is a non- residential purpose. The learned Rent Controller thus dismissed the eviction petition on 06.02.2010 which was challenged in appeal by the landlord and the same was allowed on 21.09.2010. CR No.7915 of 2010 (O&M) -3- CR No.8327 of 2010 (O&M ******* The facts of CR No.8327 of 2010 are that the tenant (Brij Bhushan) is in occupation of one room of property No.4162, Durga Charan Road, Near Subzi Mandi Chowk, Ambala Cantt. at the monthly rent of `52/- and was doing the business of repair of stoves etc. His eviction was sought on the ground that he is in arrears of rent from 01.01.2003 to 31.12.2005 amounting to `1,872/- and that the landlord required the shop for personal necessity because respondent No.2 (Ashok Kumar) is unmarried and is residing with respondent No.1 Satish Kumar and has to start the business of cosmetic goods in the said shop after its vacation. In reply, it was averred that Madan Mohan, father of the petitioner/tenant, obtained the shop in question from Kalawati in the year 1964-65 and after her death, litigation began between the petitioner and LRs of Kalawati. Earlier, only Satish Kumar had been filing the petition against the tenant with regard to property in question. It is alleged that he is the tenant at the monthly rent of `5/-. The rent was paid, therefore, the ground of non- payment of rent was over. It was alleged that it is a big building comprising of 14-15 rooms, therefore, there is no question of any personal necessity. After filing replication, issues were framed on 05.02.2008, which reads as under: - “1. Whether the respondent is liable to be ejected from the portion of property No.4162, Durga Charan Road, near Subzi Mandi Chowk, Ambala Cantt. on the grounds mentioned in the petition, as alleged?OPP. 2. Whether the petition is not maintainable, as alleged?OPR. 3. Whether the petitioners have no locus standi to file the present petition as alleged?OPR. 4. Whether the petitioners have concealed the material facts from the Court, as alleged?OPR. 5. Relief.” After appreciating the evidence on record, the learned Rent Controller dismissed the eviction petition on the ground that the demised premises is a part of the residential building, therefore, it cannot be got vacated CR No.7915 of 2010 (O&M) -4- CR No.8327 of 2010 (O&M ******* for opening a shop which is a non-residential purpose. This order, however, was reversed by the learned Appellate Authority in appeal vide its order dated 21.09.2010. The tenants have come up in revisions before this Court in which the common question of law is as to “whether the demises premises (shop), which is part and parcel of a residential house, can be got vacated by the landlord for non-residential purpose”. In support of his submission, learned counsel for the petitioners have relied upon the decisions of this Court rendered in the case of State Bank of Patiala Vs. S. Zulzuaoar Singh Virk and others, 2003(1) RCR(Rent) 670 and in the case of Dinesh Kumar Vs. Ram Singh and others, 2006(1) RCR(Rent) 182. On the other hand, learned counsel for the landlords has relied upon the decisions of this Court rendered in CR No.6132 of 2009 titled as Arun Kumar Vs. Shri Ashok Kumar Chhabra, decided on 29.07.2010, Parmeshwari Devi Vs. Krishan Chander, 2003 HRR 197, S. Basha Vs. D.B.Indiramma, 2000(2) RCR (Rent) 669 and an unreported judgment of this Court in CR No.3406 of 1996 titled as `Dev Raj Vs. Ram Parkash', decided on 24.09.2010. In the State Bank of Patiala's case (supra), it was held that the demised premises let out for a commercial purpose cannot be got vacated for residential purpose and in Dinesh Kumar's case (supra), it was held that a non- residential building can be got vacated by the landlord only for non-residential purposes and the ground of bona fide requirement of a non-residential building for residential purposes is not available to the landlord. On the contrary, in the judgment relied upon by learned counsel for the respondents in Arun Kumar's case (supra), the facts were that a room in the residential building was let out as a shop. It was held that the tenanted room is being used for commercial purpose by the tenant which was required for the same purpose by the landlord, therefore, it would be the travesty of justice to hold that the landlord cannot seek eviction for his personal necessity. In Parmeshwari Devi's case (supra), eviction was sought from one room forming part of a residential building like the present case. Room abutting on road was rented out as a shop. It was held that a portion of a residential house, if rented for commercial purpose is deemed CR No.7915 of 2010 (O&M) -5- CR No.8327 of 2010 (O&M ******* to be a commercial premises even if it is recorded as residential house in municipal record. It was further held that it is common in the State that front portion of a residential house abutting on road is let out for commercial purpose though it forms a part of residential house. In S. Basha's case (supra), it was held that if the part of building is let out for non-residential purpose, such part of building will be regarded as separate non-residential building. Similarly, in Dev Raj's case (supra), it was held that a portion of residential building converted into a shop then it would fall within the definition of non-residential building. The Court had opined that a non-residential building can be got vacated only for non-residential purposes and cannot be got vacated for residential purposes. After taking into consideration the precedents referred to by both learned counsel for the parties, I am also of the view that the demised premises in both the cases, which is though a part of a residential building and is being used for non-residential purpose by the tenants, is a separate non-residential building and fall within the definition of non-residential building for which landlords can seek eviction of the tenants for the non-residential purposes and not for residential purposes. Insofar as the bona fide necessity is concerned, a concurrent finding has been recorded by the Courts below and no case is made out by learned counsel for the tenants to persuade this Court to take a view different from the view taken by the Courts below in order to disturb the said finding. Thus, the upshot of the entire discussion leads to the irresistible conclusion that the order passed by the learned Appellate Authority is well reasoned and the same is hereby maintained and the revision petitions filed by the tenants are hereby dismissed, though without any order as to costs. A photocopy of this order be placed on the file of another connected case. (Rakesh Kumar Jain) Judge February 22, 2011. vinod*