A. Varadarajan and; D.A. Desai, JJ.
1. The respondent-landlord filed a petition for eviction of the appellant-tenant under Section 3 of the East Punjab Urban Rent Restriction Act, 1949 (Rent Act for short) on the ground that the respondent-landlord who was about to retire from the service bona fide required possession of the house for his residence. The appellant-tenant contested the petition inter alia on the ground that the building in question is being used for running a school and therefore, it is a non-residential building within the meaning of the expression in the Rent Act and therefore the landlord was not entitled to recover possession on the ground that he bona fide required the same for residence more so after having knowingly let it out for non-residential use. The trial court dismissed the petition holding that the respondent-landlord had leased the premises to the tenant to be used for non-residential purpose and therefore the landlord is not entitled to recover possession on the ground that he required the same for his residence. The appellate court in appeal by the respondent reversed the decree of the Rent Controller and ordered eviction and this decree for eviction was confirmed by the High Court.
2. In this appeal by special leave Mr. A. K. Goel, learned counsel for the appellant seriously contended that the definition of "non-residential building" as set out in Section 2 (d) of the Rent Act clearly shows that a "non-residential building" is one which is used solely for the purpose of business or trade provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a "non-residential building" to a "residential building". Mr. Goel therefore contended that landlord knowing full well that the premises in question is to be used for non-residential purpose, let out the same and therefore he is estopped from seeking possession on the ground of bona fide personal requirement for residence.
3. Undoubtedly, the landlord let out the premises knowingly that it is being taken for running a school and admittedly the building is used for running a school. Therefore, prima facie the leased premises would fall within the definition of a non-residential building. The High Court after examining the provision of the Capital of Punjab (Development and Regulation) Act, 1951 read with Section 11 of the Rent Act held that statute prohibits conversion of residential building into non-residential by act inter vivos. It was said that the landlord and the tenant by their mutual consent cannot convert a residential building into a non-residential building because that would be violative of the provision of Section 11. And it is admitted that building is situated in a sector falling within the residential zone. In this fact situation, coupled with the fact that the landlord has retired from service and genuinely needs the premises for his residence as found by all courts, we are not inclined to interfere with the judgment and order of the High Court. Mr. Goel, however, wanted us to examine the question : whether where the parties have by mutual consent changed the user, the landlord cannot be permitted to back out from his consent? He wanted to invoke the situation where parties are pari delicto court should not render assistance to any one of them. In our opinion this is not a case to examine this contention. Let it be decided in an appropriate case.
4. The tenant is in occupation and has been using the premises for reasonably long time and he must be in a position to make alternate arrangement. Therefore, this appeal is liable to be dismissed. The appellant-tenant is given time to adjust its affairs and vacate the premises up to and inclusive of June 30, 1984 on condition that the appellant files an undertaking in this Court within four weeks from today to the following effect :1. That the appellant will hand over vacant and peaceful possession of the suit premises to the respondent on or before June 30, 1984.
2. That the appellant will pay to respondent arrears of rent, if any, within one month from today.
3. That the appellant will pay to respondent future compensation for use and occupation of the suit premises month by month before the 10th of every succeeding month.
4. That the appellant will not induct any other person in the suit premises.
The appeal is accordingly dismissed. In the circumstances, there will be no order as to costs.