Civil Revision No. 6194 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 6194 of 2008 Date of Decision: 27.11.2008 Harbhajan Singh …Petitioner Versus Smt. Surinder Kaur ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sanjay Jain, Advocate for the petitioner. Mr. H.S. Sullar, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioner-tenant has failed before the two Courts below and has filed the present revision petition. Smt. Surinder Kaur landlady filed an eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”) for ejectment of tenant from one room which has been termed as a shop and which forms part of residential building bearing House Tax No. 7573-D situated in Ward No.4, Naddi Mohalla, Ambala City. Harbhajan Singh, respondent, who is carrying on a business of carpenter shop and is making furniture was inducted as a tenant at a monthly rent of Rs.500/- which was enhanced to Rs.600/- and then thereafter to Rs.700/-. Eviction was sought on the Civil Revision No. 6194 of 2008 2 ground that the tenant has failed to pay arrears of rent and demised premises are required by the landlady for herself and her family members for personal use and occupation. It has been further pleaded that tenant in a carpenter shop installed an electric Saw Machine, which caused a lot of noise and create nuisance. Notice of the application was filed. Tenant caused his appearance and filed written statement. Relationship of landlord and tenant has been admitted. It was stated that since the rent has already been paid and tendered, therefore, ground of non payment of rent is not available. It was further stated that landlady has got sufficient accommodation for herself, and her children, therefore, ground of personal necessity is not made out. It was further stated that another shop was rented out by the landlady to one Raj Kumar after marriage of her elder son. After completion of pleadings, following issues were drawn by learned Rent Controller:- 1. Whether respondent is liable to be evicted from the premises in question on the grounds mentioned in the petition? OPP 2. Whether plaintiff is estopped from filing the present suit by his won act and conduct? OPR 3. Relief. Landlady herself appeared as PW.1 and examined her son Balbir Singh as PW.2. She also placed on record rent note Ex.P1 and site plan Ex.P2. Civil Revision No. 6194 of 2008 3 Tenant examined one Jasbir Singh as RW.1 to state that operation of electric Saw Machine cause no nuisance. Kala Ram was examined as RW.2 and Sudarshan Kumar was examined as PW.3 to corroborate the testimony of tenant. Rajinder Kumar, Patwari, was examined as RW.3. Tenant also relied upon various documents. The same were exhibited as Ex.R1 to Ex.R7. Landlady, in her testimony, stated that she is in occupation of three rooms. One of his married son is residing in another tenanted premises. Her daughter is married and she often visit the family and, therefore, a separate room is required. She has further stated that due to old age she intends to reside at the ground floor. Before learned Rent Controller, this part of the testimony was assailed and it was stated that one son of the landlady is working abroad and her another son is having a separate residence. Therefore, there is sufficient accommodation for the landlady. Ground of nuisance was not accepted by learned Rent Controller on the ground that no neighbourer was examined. It was further stated that in the rent note it was stated that the shop was let out as furniture shop and from the very inception of the tenancy Saw Machine was operating. Therefore, the landlady had failed to substantiate the ground of nuisance. Learned Rent Controller further noticed that room in the residential building is being used as a shop. Learned Rent Controller further held that as per the site plan sanctioned by the Municipal Committee the entire building is a residential house and the tenant admitted description of the property given in the eviction petition as residential. It further held that since a residential building has been Civil Revision No. 6194 of 2008 4 converted into commercial building, without a prior permission of Rent Controller, therefore, the character of building cannot change. Therefore, on the ground of personal necessity eviction of tenant was ordered. Aggrieved against the same, an appeal was filed. Learned Appellate Authority not only reiterated the findings of learned Rent Controller but it further held that the building is primarily a residential building. One room is being used as a shop, therefore, ground of personal necessity stand established. Thus, the findings of two Courts below have been assailed by Mr. Sanjay Jain, Advocate, appearing for the petitioner-tenant in his all eloquence, he meticulously examined the evidence and has canvassed before me that the findings arrived by the two Courts below are contrary to the facts. He has placed reliance upon the rent note Ex.P1 wherein the room rented out is described as shop. He has further placed reliance upon site plan to state that Municipal Committee, Ambala has taken the entire ground floor as commercial and house tax has been assessed qua the building on commercial rates, therefore, he says that the two Courts below have committed grave error in holding that building was residential. He has further stated that it has been admitted by the landlady in her cross examination that after the marriage of his son, another shop was rented out to Raj Kumar who is running Chemist shop. Therefore, he has stated that ground of personal necessity is not made out. It has been further stated that the building in no scheme has been found to be residential building, therefore, even if the landlady had let out the property as commercial in nature, therefore, later on she Civil Revision No. 6194 of 2008 5 cannot back out and treat the same as residential property. He has relied upon judgment of this Court rendered in Ajaib Singh v. Sukhdev Singh 1992(2) Punjab Law Reporter 723 to contend that where shop in dispute is an independent unit of a residential building let out for the purpose of carrying on business, landlord is not entitled to seek eviction on the ground that same is required for residential purpose. It was held therein that it was incumbent upon the landlord to prove that the building has been sanctioned by any scheme. He has further relied upon a judgment of this Court rendered in State Bank of Patiala v. S. Zulzuaoar Singh Virk and Others 2003(1) Rent Control Reporter 670 to say that the landlord cannot seek ejectment of the tenant from a non- residential building for purpose of residence. Similarly, reliance has been also placed upon another judgment of this Court rendered in Gopi Ram v. Jagan Nath 2003(1) Rent Control Reporter 664 to say that residential building, part of building let out for a shop, landlord is not entitled to evict tenant for residential purpose. I have given thoughtful consideration to the arguments advanced by learned counsel for the petitioner. Even though the rent note has described the room to be a shop, it has been held by the two Courts below that in the municipal plan sanctioned by the Municipal Committee, the entire building is residential. If a shop is being run in a room, for house tax purpose Municipal committee is well within its right to charge the property as commercial but it will not change the character of the building for which the plan was sanctioned by the Municipal Committee. It has come in the evidence of landlady that her one son is settled abroad and another is Civil Revision No. 6194 of 2008 6 married and is residing in a premises which are on rent. She has stated that she is having an old age and require the building for her own use and occupation. It can be inferred that in old age, services of son and daughter-in-law are required and in this case it could be assumed that landlady is dependent in old age upon her children for her care and welfare. Therefore, the room can be got vacated for shifting of her married son to the building. It has also come in evidence that she is also having one married daughter who is on visiting terms and a separate room is required for her. The entire accommodation with the landlady is of three rooms. As stated by Mr. Jain, two room are on the first floor whereas one room is on second floor and, therefore, the demised room which is on rent with the tenant can be used by her in her old age. A look at the site plan will show that the room on rent with the tenant is not inseparable from the premises, which is already in occupation of the landlady. Growing needs of the family are to be seen in today's context. Therefore, there is no merit in the present revision petition and concurrent findings of fact recorded by the two Courts below are hereby affirmed. Hence, the present revision petition is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 27, 2008 “DK”