CR No. 1200 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 1200 of 2010 Date of Decision: 04.03.2011 Shri Lekh Raj . . .Petitioner Versus Smt. Phaguniya Devi . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Avnish Mittal, Advocate, for the petitioner. Mr.Kanwaljit Singh, Sr. Advocate, with Ms.Guneet Babbar, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The landlord is in revision against order of the Appellate Authority dated 28.11.2009 by which order of the Rent Controller dated 29.1.2009 has been reversed and the eviction petition has been dismissed. In brief, the landlord filed eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 (for short ‘the Act) against the tenant alleging that initially the demised premises (shop) was let out to one Bhoora son of Sharma Dass at a monthly rent of `600/- per month. The tenant died as a bachelor on 3.11.1999 and after his death, his mother inherited the tenancy rights. The landlord sought her eviction on the ground of non-payment of rent from 1.10.2000 to 31.12.2002 at the rate of `600/- per month, amounting to `16,200/-, ceased to occupy the shop in question for a continuous period of more than four months without reasonable cause and for personal use and occupation to start the business of selling tea and eatables. It was alleged that the petitioner has retired from service on 28.2.2002. He wanted to start his own business of selling tea and eatables in the shop, which is part of his residential building. The respondent, after appearance, tendered the entire rent with interest and cost as assessed by the Court. It was denied that the demised premises was kept locked CR No. 1200 of 2010 - 2 - after the death of original tenant Bhoora and there is no question of any personal need of the landlord, who has another vacant room in his possession. Rejoinder was filed in which the averments made in the written statement were denied and that of eviction petition were reiterated. On the pleadings of the parties, issues were framed on 6.10.2003, which reads as under: “1. Whether the respondent is liable to be ejected from the house in dispute on the grounds as alleged in the petition? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Whether the petitioner has no cause of action to file the present petition? OPR 4. Relief.” The landlord examined himself as PW-1 and Ronki Ram, Clerk, M.C. Ambala as PW-2 whereas tenant examined herself as RW-1 and Kesar Dass as RW-2. She tendered into evidence copy of the site plan of the said house No.849- A/2 as mark ‘X’ and closed her evidence. No evidence in rebuttal was led. The learned Rent Controller discussed all the three grounds of eviction separately in which grounds of arrears of rent and ceased to occupy was not found in favour of the landlord and were thus decided against him but the ground of personal necessity was decided in his favour and the eviction petition was allowed with the direction to the tenant to vacate the demised premises within two months of the passing of the order. The order of the Rent Controller was challenged only by the tenant wherein the Appellate Authority reserved the finding on the issue of personal necessity on the ground that the demised premises is a non-residential premises, which is a part of the large residential building, therefore, it is residential building, which cannot be got vacated by the landlord for the non- residential purposes. Learned counsel for the petitioner has submitted that the demised premises is part and parcel of the residential house, which is being used by the tenant for non-residential purposes, could be got vacated by the landlord for his non-residential purposes as the said part of the building would remain non-residential building and would not be termed to be a residential building as held by the learned Appellate Authority. In this regard he has referred to the CR No. 1200 of 2010 - 3 - decision of this Court in CR No.6132 of 2009 titled as “Arun Kumar Vs. Shri Ashok Kumar Chhabra”, decided on 29.7.2010, “Parmeshwari Devi Vs. Krishan Chander” 2003 HRR 197, “S.Basha Vs. D.B. Indiramma” 2000(2) RCR (Rent) 669, CR No.3406 of 1996 titled as “Dev Raj Vs. Ram Parkash” decided on 24.9.2010 and CR No.7915 of 2010 titled as “Sh. Satpal Chadha Vs. Satish Kumar and another” decided on 22.2.2011. On the other hand, learned counsel for the respondent has submitted that a small portion being used in residential house for non-residential purposes would not change the nature of the building, which would remain residential house and for that matter, it cannot be got vacated for non-residential purposes. He has also relied upon the decisions in the cases of “State Bank of Patiala Vs. S. Zulzuaoar Singh Virk and others” 2003(1) RCR (Rent) 670 and “Dinesh Kumar Vs. Ram Singh and others” 2006(1) RCR (Rent) 182. I have heard both the learned counsel for the parties and have perused the record. The issue that a non-residential part of a residential building could be got vacated by the landlord for the non-residential purposes has been considered by this Court in CR No.7915 of 2010 titled as “Sh. Satpal Chadha (Supra), wherein it has been held that a shop, which is a part of residential building and is being used for non-residential purposes by the tenant, falls within the definition of non-residential building for which landlord can seek eviction of the tenant for the non-residential purposes and not for residential purposes. In view of the aforesaid, the present case is squarely covered by the decision rendered in the case of CR No.7915 of 2010 titled as “Sh. Satpal Chadha Vs. Satish Kumar and another” decided on 22.2.2011. Hence, present revision petition is allowed and the order of the Appellate Authority is hereby set aside. In these facts and circumstances of the case, both the parties are left to bear their own costs. (RAKESH KUMAR JAIN) MARCH 04, 2011 JUDGE Vivek