C.R. No. 2244 of 2005 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 2244 of 2005 Date of Decision : 23.07.2010 Siri Ram & another .......... Petitioners Versus Gopal Krishan Sharma ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Avnish Mittal, Advocate for the petitioners. Mr. Pritam Saini, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the judgment dated 15.12.2003, passed by the learned Rent Controller, as affirmed by the learned Appellate Authority vide judgment dated 13.1.2005, allowing the petition filed by the respondent under Section 13(3-A) of the Haryana Urban (Control of Rent & Eviction) Act, 1973, for ejectment of the petitioners from the property bearing House Tax No. 1610, measuring 294 Sq. feet, situated in Katcha Bazar, Ambala Sadar, Ambala Cantt. The respondent / landlord filed a petition under Section 13(iii)(a) of the Haryana Urban (Control of Rent & Eviction) Act, 1973, on the averments, that he was the landlord and owner of the property in dispute, which was purchased by him vide registered sale deed C.R. No. 2244 of 2005 -2- ***** dated 13.8.1993 from Shri Rajinder Parshad Pandey son of Shri Ram Kishan Pandey. The petitioners were the tenant in the said property at a monthly rent of Rs. 6/- per month. The claim of the respondent, therefore, was that after the purchase there existed a relationship of landlord and tenant between the parties. The eviction of the petitioners was sought on the following grounds :- “(i) That respondents are in arrears of rent since 1.8.93. (ii) That petitioner requires the said property for his own use and occupation. The petitioner is not occupying any other property in the Urban Area of Ambala Sadar for the purpose of his residence and business and has not vacated such property without sufficient cause. Petitioner was Sargeant in the Indian Air Force and as such, was a member of the Armed Forced of Union of India. The petitioner has been retired from his services on 31.8.94 and now, he wants to start the business of sale and purchase of the typewriters and to start Type Commercial College and also for his own residence. (iii) That respondents have impaired the value and utility of the property in dispute and their living has become a source of nuisance in the neighbourhood.” C.R. No. 2244 of 2005 -3- ***** The petition was contested by the petitioners by disputing the purchase by the respondent / landlord by alleging, that vendor of the respondent was not the owner of the plot in dispute, therefore, the sale by Sh. Rajinder Parshad Pandey in favour of the respondent / landlord did not confer any title of ownership. The sale was claimed to be fraudulent and fictitious being collusive to secure the ejectment of the petitioners by foul means. It was the case of the petitioners, that ejectment application was filed by the respondent / landlord to help the previous owner, as they had failed in getting eviction order against the petitioner. On appearance, the rent claimed was deposited along with interest and costs, therefore, the plea of non-payment of rent ceased to exist. The other ground of eviction on merit, was contested by asserting that the premises in dispute was a plot of land, therefore, the ground of bona fide need under Section 13(3-A) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 was not available to the respondent / landlord. The ground of impairing the value and utility of the premises was also denied. In the replication filed by the respondent / landlord the averments made in the petition were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned Rent Controller framed the following issues :- “1. Whether the petitioner is owner and C.R. No. 2244 of 2005 -4- ***** landlord of the premises in dispute ? OPP 2. Whether petitioner requires the premises in question for his business ? OPP 3. Whether respondents have impaired the value and utility of the premises in dispute? OPP 4. Whether respondents are source of nuisance and if so, its effect ? OPP 5. What is the nature of premises in dispute? OP Parties. 6. Relief.” In order to prove the case respondent / landlord examined himself as PW-1, and also produced on record sale deed and site plan Ex. P-1 & P-2. The discharge book was placed on record as Ex.P-3, and certificate showing, that he has passed Stenography course as Ex.P-4. This document was placed on record to prove the claim of bona fide requirement of setting up a College of Stenography and Typing on the ground floor and on the upper floor his intention to construct a residential house. The vendor of respondent / landlord was examined as PW-2, who proved the title to the property, as also the sale in favour of the respondent / landlord. It was also stated by him, that after the sale the petitioner tenant had got constructed pucca wall, cemented floor and Khurli. He also proved, that the petitioners were his tenant. The copy of the judgment and decree dated 27.1.1990 was proved on record as Ex. PX & PY. The evidence led by the respondent / landlord was C.R. No. 2244 of 2005 -5- ***** rebutted by the petitioners by examining Sh. Gurnam Singh son of Harnam Singh as RW-1, who proved, that the petitioners / tenant were doing work of dairy in the premises in dispute. The petitioner No.1 himself appeared as RW-2 and deposed, that earlier Sh. Ram Partap was owner of the property in dispute, who died, leaving hebind 6/7 daughters, son Ram Parkash and his widow. He further deposed, that Ram Kishan was still alive, therefore, Rajinder Parkash son of Shri Ram Kishan was not having any right to sell the property in dispute, as he was not owner of the property. He further deposed, that this was an arrangement made to evict the petitioners / tenant from the premises in dispute. It was further asserted, that after the death of their father three brothers, four sisters and mother had become tenants, and that the landlord being resident of Yamuna Nagar was not in need of the premises in dispute. The petitioners / tenant also placed on record certified copy of the judgment dated 16.1.1976 with regard to suit No. 174 of 1972 titled as Pandit Ram Partap and others Vs. Smt. Lachmi Devi and others as Ex. R-1, copy of judgment dated 12.12.1983 in regard to rent case No. 47 of 14.12.78/2.1.1981 titled as Shri Ram Kishan and others Vs. Smt. Lakshmi Devi and others as Ex. R-2, and the copy of the judgment of the learned Appellate Authority dated 15.5.1986 in regard to Appeal No. 3/14 of 1984 in a case titled as Ram Kishan and others Vs. Lakshmi Devi and others as Ex. R-3. The learned Rent Controller, on appreciation of evidence recorded the finding that the respondent was the owner and landlord of the premises in dispute in pursuance to the sale executed by Shri C.R. No. 2244 of 2005 -6- ***** Rajinder Sharma son of late Sh. Ram Kishan. On issue No.2, the learned Rent Controller held, that the premises was required by the respondent / landlord for his own use and occupation to run the business of Stenography and Typing by opening the college therein. On issue No.3, it was held that the respondent / landlord failed to prove, that the petitioners had impaired the value and utility of the premises in dispute. Issue No.4 was decided in favour of the petitioners holding, that the dairy being run by them was not a source of nuisance. Issue No.5 was framed, as the petitioners, had contested the petition on the ground that premises in dispute was merely a plot for running a commercial business and was not a building. The learned Rent Controller on appreciation of evidence, led to prove that certain constructions were raised for dairy farming, drew presumption that there must be building standing thereon, to hold, that it was a rented premises was a building and not rented land. The issue No.5 was decided in favour of the respondent / landlord and against the petitioners. In view of the findings recorded, the petition was allowed with costs, and the tenants were granted two months time to vacate the premises and hand over the vacant possession to the landlord. In appeal, the findings recorded by the learned Rent Controller have been affirmed, without recording any positive finding on issue No.5 and consequently, the appeal was also dismissed. C.R. No. 2244 of 2005 -7- ***** Mr. Avnish Mittal, learned counsel appearing on behalf of the petitioners, challenged the findings of the learned Rent Controller as well as the learned Appellate Authority on issue No.5, by contending, that findings of the learned Rent Controller are based on presumption, as there was no evidence on record, with regard to any construction raised over the plot in dispute. The learned counsel for the petitioners also contended that as the findings on issue No.5 are based on no evidence, therefore, being perverse are liable to be reversed and rent petition be dismissed, as in that event the provisions of Section 13(3-A) of the Haryana Urban (Control of Rent & Eviction) Act, 1973, would not be applicable, as the landlord retired or discharged from the Armed Forces of Union of India is entitled only to invoke provisions of Section 13(3-A) with regard to the non-residential building, and if the tenanted premises is not non-residential building the provisions of Section 13(3-A) of the Act would not be applicable. The contention of the learned counsel for the petitioners further was, that the evidence led by the respondent / landlord in support of the ground of personal necessity, would therefore not be available, as some independent evidence, would be required to prove the personal necessity for the “rented land” and not the rented building as the case set up was. In support of the contention, referred to above, the learned counsel for the petitioners placed reliance on the definitions of “building”, “non-residential building”, and “rented land” as given in the Haryana Urban (Control of Rent & Eviction) Act, 1973, which read C.R. No. 2244 of 2005 -8- ***** as under :- “2. Definitions------------------------------------- (a) 'building' means any building or a part of building let for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses, gardens, lawns, wells or tanks appurtenant to such building or the furniture let therewith or any fittings affixed to or machinery installed in such building, but does not include a room in a hotel, hostel or boarding house; (b) x x x x x x x (c) x x x x x x x (d) 'non-residential building' means a building being used - (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there: Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non- residential building. Explanation – Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence; (e) x x x x x x x C.R. No. 2244 of 2005 -9- ***** (f) 'rented land' means any land let separately for the purpose of being used principally for business or trade;” The contention of the learned counsel for the petitioners was, that non-residential building can not be treated to be rented land, especially when in order to evict a tenant from the rented land the provisions applicable would be Section 13(iii)(b) of the Act, and not Section 13(3-A) of the Haryana Urban (Control of Rent & Eviction) Act, 1973, under which rent petition was filed. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. Once it is not in dispute, that the procedure for eviction under Section 13(3-A) of the Act, is same, it would hardly make a difference, if in the heading of the petition a provision is mentioned instead of another. The contention of the learned counsel for the petitioners could have only been accepted, in case the procedure under Section 13(3-A) of the Act, would have been different i.e. summary procedure, which would have given undue advantage to the landlord to seek eviction. Once it is only the right given wherein the party has to prove his case of personal necessity in terms of section 13 of the Act it would not make any difference if the petition filed under Section 13(3-A) of the Act is to be taken under Section 13(iii)(b). The respondent / landlord by leading cogent evidence proved, that the premises was required bona fide for his own use and occupation. The personal necessity pleaded, was one in which it would not make any material difference whether the eviction sought C.R. No. 2244 of 2005 -10- ***** is from the rented land or non-residential building. The proved case of the landlord was to demolish the construction raised on the plot, to construct a building for college of typing and shorthand, and for his residential house, therefore, the plea raised by the learned counsel for the petitioner can not be accepted. The findings of the learned Authorities below on personal necessity could be reversed only, in case of finding on issue No.5 was to be reversed. Issue No.5 is hardly of any importance in the present case, in view of pleaded personal necessity i.e. to use the premises / land for construction of College & residential building. No ground to interfere with the order passed by the Authorities is made out. The findings recorded by the learned Authorities under the Rent Act are affirmed and this revision petition is ordered to be dismissed, but with no order as to costs. However, keeping in view the fact, that the petitioner has been running his business from the rented land /non-commercial building since 1948, he is granted six months time to vacate the premises but this shall be subject to payment of arrears of rent and further petitioner continuing to pay the rent in advance by 7th day of each English calendar month. No merit. Dismissed. 23.07.2010 (VINOD K. SHARMA) 'sp' JUDGE