1. This is landlords' revision petition in whose favour the eviction order was passed by the Rent Controller but was set aside in appeal.
2. The demised premises are a one kanal house bearing No. 191, Sector 19-A, Chandigarh. It consists of two bed rooms, drawing-cum-dinging and a garage etc. It was previously owned by Shrimati Lajya Wati Mahajan. She inducted Sital Parkash Jain as a tenant therein in the year 1969. Later, on, she sold the said house to Shrimati Ranbir Kaur and her husband Shri Narinder Pal Singh Bindra who became the landlords qua Sital Parkash Jain, tenant. They filed the eviction petition against him on Sept. 23, 1981, on the grounds of non-payment of arrears of rent since April, 1981 ; change of use thereof from residential to commercial and the bona fide personal necessity. It was pleaded that the premises, in dispute, were residential and were given on rent only for residential purpose, but the tenant had allowed their use for purposes other than residential. One of his sons was running the business in one portion thereof and the products were being stored and sold there. It was also pleaded that his wife Shrimati Vijay Jain was also running her independent training institute for girls in another portion of the demised premises.
Even Kailash Chand Jain, another son of the tenant was maintaining the office of his company, known as M/s. K. C. & Co. thereon and, thus, he had converted the building from residential to a scheduled building or a non-residential building for a number of years till he shifted the office in Sector 18-A. It was also pleaded that the landlords had not vacated much less without sufficient cause any residential building after the commencement of the East Punjab Urban Rent Restriction Act, (hereinafter called the Act), nor they were in occupation of any other residential building in the urban area concerned. According to them, they were jointly putting up with petitioners 2's in-laws at house No. 129, Sector 8-A, Chandigarh, and sometimes at house No. 187, Section 19-A, Chandigarh, where they run their institute known as Business Research Courses Institute for guarding the property of the said institute. Their stay with petitioners No. 2's in-laws was no more liked by his in-laws and they genuinely and bona fide felt that their living there further may lead to more and more bickerings.
Moreover, the brother of petitioners I, was likely to be married (since married during the pendency of the petition) and, therefore, he and his mother had specifically asked the petitioners to vacate the accommodation occupied by them in their house. Apart from that, they were only in occupation of one room which was hardly sufficient to accommodate them and their two minor daughters aged eight and six years. In the written statement, the allegations made in the eviction application were controverted. It was pleaded by the tenant that he was using the premises for residential purposes and not for any other purpose, as alleged. It was specifically denied that any business was being carried therein either by the tenant's son or by his daughter-in-law Shrimati Vijay Jain. As regards landlords' bona fide requirement, it was pleaded that they did not require the demised premises for their use and occupation. They were permanently residing in house No. 129, Sector 8-A, Chandigarh in their own right. That house was a big one; constructed on an area of 1,000 square yards where they had got ten rooms available to them for their use and occupation. It was denied that they were required to vacate the house in Sector 8-A, Chandigarh.
It was also pleaded that besides the said house, they were occupying another residential building, i.e., house No. 187, Sector 19-A, Chandigarh, where there was sufficient accommodation consisting of four rooms, drawing-cum-dining room and a huge annexe which is double-storeyed and a big courtyard at the back. According to the tenant, house No. 1897, Sector 19-A, Chandigarh, was a residential building and could not be used for non-residential purposes as the same is prohibited by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 as well as by S. 11 of the Act. In the replication filed on behalf of the landlords, with respect to their bona fide requirement of the demised premises, it was stated that house No. 187, Sector 19-A, Chandigarh was let out therefore, its occupation by them, was irrelevant for the purposes of the present case. Besides, the tenant was not concerned with permission or no permission with regard to the said house, as alleged in the written statement. The learned Rent Controller found that the landlords had proved their bona fide requirement of the demised premises and, thus, they were entitled to evict the tenant therefrom on that ground.
As regards the present accommodation in their occupation, the learned Rent Controller found that the accommodation in house No. 129, Sector 8-A, was not in their possession in their own right and that they were living there with the permission of their in-laws who had asked them to vacate the same. As regards their occupation of house No. 187, Sector 19-A, Chandigarh, it was found that the accommodation therein could not be said to be sufficient for them especially when they had taken the said premises for running their institute and not for their residence. On the question of change of user, it was found that it had been proved on the record that the tenant had used the premises for a purpose other than the one for which they were let out to him. On these two grounds, the eviction order was passed.
In appeal, the learned Appellate Authority reversed the said findings of the Rent Controller and came to the conclusion that neither there was any change of user as the landlords had not proved that any actual business was being carried on in the demised premises, not they had proved their bona fide requirement thereof, since they had failed to prove that they were not occupying any other residential building in the urban area concerned. At the same time, it was also observed that had the landlords been able to prove that they were occupying only one room in house No. 129, Sector 8-A, the eviction petition would have succeeded. According to it, was proved on facts that the landlords were living in house No. 187. Sector 19-A, Chandigarh, though at the same time, it was also observed that a part thereof had been proved to have been used or running the institute by the landlords. In view of these findings, the ejectment application was dismissed. Dissatisfied with the same, they have filed this revision petition in this Court.
3. The learned counsel for the petitioners contended that in the written statement, the tenant denied that any business was being carried on in the demised premises whereas from the documentary evidence on the record, it was amply proved that business was being carried on therein. According to the learned counsel, the tenant never set up the case that the dominant purpose for which the premises were being put to use was residence and the business, if any, was being carried on in small portion thereof only. Since no such plea was taken, he could not be allowed to take this plea for the first time at this stage. As regards their personal necessity, it was contended that they were in occupation of only one room in house No. 129, Sector 8-A, which belonged to their in-laws. Besides, the accommodation therein was insufficient to meet their requirement and that of their family which consisted of four members. As regards their occupation of house No. 187, Sector 19-A. Chandigarh, the same was taken on rent for running the institute and, therefore, the question of their residence therein did not arise though they did occupy the same sometimes to protect the property of the institute, but in any case, the said building having been taken on rent primarily for running the institute, the same was not sufficient for residential purposes.
Even earlier, his landlord had filed an eviction petition against the petitioners for his eviction from the premises on the ground of the change of use, but it was found therein that the building was let out for running the institute and the same business was being carried therein. Consequently the said eviction application was dismissed by the Rent controller vide order dt. Jan. 24, 1981, Exhibit A. 14. Thus, argued the learned counsel, it was amply proved on the record that house No. 187, Sector 19-A, Chandigarh, was taken for running the training institute and the same activity is being carried on there. The occupation of the said building cannot be taken into consideration for determining the bona fide requirement of the landlords, since the occupation was that of the institute.
4. On the other hand, the learned counsel for the respondent contended that there is no evidence on the record to prove that any business activity was being carried on in the demised premises and in any case even if a portion of the premises was being used for business purposes, even then, the dominant purpose was residence. There are 12 members of the family and the accommodation is only tow bed-rooms, drawing and dining, which is hardly sufficient to meet their requirement and, therefore, the building is used primarily for residence. Under the Circumstances, it could not be held that there was any change of user. In support of the contention, reliance was placed by the learned counsel on Amin Chand v. Gian Chand, AIR 1982 Punj and Har 31; Dharam Chand v. Mathura Dass, AIR 1982 Punj and Har 224 and M. K. P. Chettiar v. A. P. Pillai, (1970) 2 SCC 290.
As regards the ground of personal necessity for evicting the tenant from the demised premises, the learned counsel submitted that it was amply proved on the record that the landlords were residing in house No. 187, Sector 19-A. Chandigarh, and that being so, the accommodation there was sufficient for them and no eviction order could be passed on that ground. In any case, argued the learned counsel, it has been admitted by landlord as A. W. 12 that he has been renting out buildings though for hostel purposes and if that is so, then, he can occupy any of those buildings for his residence. According to the learned counsel it is for the landlords to prove the ingredients of S. 13(3)(a), (b) and (c), and even if the same have been pleaded in the ejectment petition the landlords have failed to prove the same. In support of the contention, the learned counsel relied upon Banke Ram v. Smt. Sarasti Devi, (1977) 1 Rent LR 417: (AIR 1977 Punj & Har 158) (FB) and Ram Murti v. Santi Devi, (1981)2 Rent LR 709. It was also contended that the site plan of the building in Sector 8, was not produced in order to know that total accommodation there and, therefore, on that ground also, the landlords have failed to prove their bona fide requirements.
5. I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.
6. As regards the contention that there is a change of user of the demised premises because the same are being used as an office for business purposes, as alleged by the landlords, has no merit. Though it has been found by the learned Appellate Authority that no business as such is being carried on therein, yet even if it be assumed that some business is being carried on therein, even then, it is the common case of the parties that he tenant is residing therein. Admittedly the demised premises consist of two bed rooms, drawing-cum-dining and a garage. There are 12 members of the family of the tenant who are residing therein. The landlords themselves have alleged in the ejectment application that in one portion of the premises, in dispute, business activities are being carried on whereas according to the tenant in the written statment the plea was that he was using the building only for residential purposes and for no other purpose. In the replication filed on behalf of the landlords, this part of his version was never denied.
Under the Circumstances, even it be assumed that the tenant is carrying on some type of business in the premises, that does not amount to change of user and does not fall within the mischief of change of user as contemplated under S. 13(2)(ii)(b) of the Act. The premises, in dispute, were rented out for residence and the tenant is still continuing therein as such. Under the Circumstances of this case, it could not be successfully argued that it amounted to change of user. Section 13(ii)(b) of the Act postulates that if the tenant, without the written consent of the landlord, used the building for a purpose other than the one for which it was leased, only then, he is liable to be ejected therefrom. It will be pertinent to note here that in S. 13(2)(ii)(a) it has been provided that if the tenant has sublet the entire building or any portion thereof without the written consent of the landlord he is liable to be ejected therefrom whereas it has been provided under Clause (b) of S. 13(2)(ii) that if the tenant used the building or rented land for a purpose other than the one for which it was leased, without the written consent of the landlord, he is liable to be ejected therefrom.
Thus, Clause (b), mentioned above, contemplates the change of user substantially for the purpose other than the one for which they were leased. Such is not the position in the present case. As observed earlier, according to the landlords themselves, only a portion thereof was being used for business purposes. It will also be relevant to note here that respondent 5 and 6 are running their independent business under the name and style of M/s. Jain Thermometers in Plot. No. 8, Industrial Area, Chandigarh. Therefore, it was only the office address of the said business which was given as that of the demised premises. In any case, on the case set up by the landlords themselves, the question of the change of user of the demised premises does not arise and the tenant is not liable to be ejected therefrom under Clause (b) of S. 13(2)(ii) of the Act.
7. As regards the ground of bona fide requirement for the personal occupation of the landlords, the case set up by them is that they are residing in house No. 129, Sector 8-A, Chandigarh, belonging to the in-laws of Narinder Pal Singh, landlord. Though it has also been stated in the eviction petition itself that sometimes they do stay in house No. 187, Sector 19-A where they are running their institute known as Business Research Courses Institute, for guarding the property. In the reply filed on behalf of the tenant, it was averred that the landlords were permanently residing in house No. 129, Sector 8-A, Chandigarh, in their own right. It was a big bungalow consisting of ten rooms. Besides the said house, the landlords were occupying another residential building i.e, house No. 187, Sector 19-A, Chandigarh, where there was sufficient accommodation consisting of four bed rooms, drawing-cum-dining room and a doubt storyed annexe.
Thus, on the pleadings, it was never the case set up by the tenant that the landlords were residing in house No. 187, Sector 19-A, Chandigarh, though they were occupying the same (which the landlords themselves admitted) for the purposes of running the institute. The tenant tried to prove that the landlords were actually residing in house No. 187, Sector 19-A, and for that purpose, produced the voters' lists for the years 1975 and 1980 showing that the landlords were recorded as the voters and their residential address was given as house No. 187, Sector 19A, Chandigarh, therein. He also produced the birth certificate to show that the permanent address of the child's parents recorded therein was, 187, Sector 19-A, Chandigarh. Even in the school, the same address was given by the landlords. Gas connection was also received by them on the said address, though, according to the landlords, that was taken by them for the purposes of their business. These facts are not disputed by the landlords.
It is quite evident that when they are occupying the said premises for running their institute, then, if in the voters' lists or in the birth certificate, the above said address was given, there was nothing wrong with the same. As a matter of facts, it is the identical stand which the tenant took with respect to the premises in his possession. Though the tenant is residing therein, yet for the purposes of the business etc, the said address was given on the letter-heads and there in he also got a telephone installed in the name of the business concern. That is but natural. When the premises are in occupation of the landlords and they are there from morning till evening, i.e., for a major part of the day for running the institute, then, in that situation there was nothing wrong in giving the address of house No. 187, Sector 19-A, Chandigarh, either in the voters list or in the birth certificate and the other documents. They categorically denied that they were residing in the said premises. There is no cogent evidence led by the tenant to prove that they were actually residing therein and if so, then, what accommodation was available with them.
Admittedly, the landlords are running the institute known as Business Research Courses Institute, in house No. 187, Sector 19-A, Chandigarh, and that being so, it was for the tenant to prove that landlords were residing therein and not in Sector 8-A as claimed by them, and if so, the accommodation in their occupation was sufficient for their requirements. Of course, the initial burden to prove that they were not occupying any residential building in the urban area concerned was on the landlords which they proved when they led evidence that they were not residing therein and in that situation, the burden shifted on the tenant to prove that they were actually residing therein and what accommodation was in their occupation. This, the tenant has failed to prove by any cogent evidence. The mere production of the voters list or the birth certificate was not sufficient to prove that they were actually occupying the said premises as their residence. Occupation of premises for the purposes of business is different from their occupation for the purposes of residence.
Section 13(3)(a)(b) of the Act contemplates the case where the landlord is not occupying another residential building in the urban area concerned. According to S. 2(g) of the Act, 'residential building' means any building which is not a non-residential building. Thus, the occupation of house No. 187, Sector 19-A, could not be said to be the 'occupation of an other residential building' by the landlords. The argument raised on behalf of the tenant that house No. 187, Sector 19-A, is residential and the landlords are using the same for business purposes which they are not authorised under the law is not available to him. That may be a plea available to the landlords of that building. As a matter of fact, on that plea, ejectment application was filed against the landlord (the present petitioners) which was dismissed by the Rent Controller vide order dt. Jan. 24, 1981, Exhibit A. 14. For the purpose of the present eviction petition those premises were taken by the landlords for business purposes and they are doing the same therein. The building could not be said to be residential building in order to hold that they were in occupation any other residential building as contemplated under S. 13(3)(a)(I)(b) of the Act.
8. According to the findings of the Appellate Authority, there is nothing on the record to suggest that the landlords are residing in house No. 129, Sector 8-A, Chandigarh. This observation is not borne out from the record and is, thus, not warranted. from the voters list and the birth certificate, it could not be concluded that the landlords were residing in House 187, Sector 19-A. Chandigarh. As a matter of fact, the learned Appellate Authority was wrong in observing that the finding of the Rent Controller in Exhibit A. 14, was not binding on the tenant because he was not a party thereto when it was held therein that the said premises were let out for commercial purposes and not for residential purposes. As observed earlier, this plea is not available to the tenant in this eviction petition. That is the matter between the landlord of that house and the tenant who is one of the petitioners now. Thus, the whole approach of the Appellate Authority in this behalf was wrong and illegal and, therefore, the finding arrived at was vitiated.
9. It may be pointed out here that under S. 13(3)(a) of the Act, if the landlord once proves that he requires the building for his own occupation, and he is not occupying another residential building in the urban area concerned and he has not vacated such a building without sufficient cause after the commencement of the Act in the said urban are concerned, then prima facie, his bona fides are proved unless certain other Circumstances are brought on the record to prove that his requirement was not bona fide. In the present case, no such Circumstances has been brought on the record to show that the requirement of the landlords was not bona fide.
10. As regard house No. 129, Sector 8-A, Chandigarh, the Appellate Authority itself observed that the accommodation in occupation of the landlords was only one room which was insufficient to meet their requirements. Apart from that, the said house does not belong to the landlords. They are occupying one room therein as licensees and not in their own right In view of that situation it was not material to produce the plan of the said house or that of the accommodation available to them therein. The landlords being licensees therein had no right to reside therein as matter of right; more particularly when the owner thereof had asked them to vacate the same. In these Circumstances, if the landlords are not in occupation of any other building sufficient to meet their requirement, then, under S. 13(3)(a)(i) of the Act, their requirement is bona fide to occupy the demised premises for their own use and occupation.
11. During the pendency of this revision petition, petitioners No. 1 has filed an application dt. Sept. 13. 1985, with which she filed the copy of the eviction petition filed by Uggar Sen, landlord, for their eviction from house No. 187, Sector 19-A, Chandigarh, as Annexure P. 1. In the abovesaid eviction petition, the landlord Uggar Sen, has sought the ejectment on the ground of his bona fide requirement for personal occupation on the basis that he was retiring from the Government service in Oct. 1986, at the age of 58 years. Thus, taking into consideration all the facts and Circumstances of the case, the bona fide requirement of the landlords to occupy the premises, in dispute, has been proved on the record. The finding of the Rent Controller in this behalf was correct and the same has been reversed in appeal illegally.
12. Consequently, this revision petition succeeds and is allowed. The order of the Appellate Authority is set aside and that of the Rent Controller directing the ejectment of the tenant is restored with no order as to costs. However, he is allowed three months time to vacate the premises; provided all the arrears of rent, if any, and the advance rent for three months, are deposited with the Rent Controller within one month along with an undertaking, in writing, that after the expiry of the said period of three months, he shall vacate the premises and shall hand over their vacant possession to the landlords.
13. Petition allowed.