D.K. Kapur, J.
(1) Suit premises is a room in a residential building It was being used as a godown by petitioner. Landlady's husband was an employee of Mcd and was allotted a quarter. His allotment was cancelled and he sued petitioner u/s 14 A of Rent Act. Tenant sought leave to defend on the ground that premises was not residential Permission was refused and he approached High Court.] Judgment, para 4 onwards is :-
(2) Thus, the conflict between the two parties was whether the property in question could be deemed to be residential property or, whether it was non-residential property. It is the common case of both the parties that the property is in fact used as a godown and from the plan filed in the case, seems to be entirely suited as a godown. Still, it is possible for even property which has been let for non- residential purposes to be deemed to be residential property within the meaning of Section 14A of the Act.
(3) Learned counsel for the petitioner stated that Section 14A is not available for evicting tenants who are occupying non- residential premises. Counsel for the respondent states that the property is not non- residential and is in fact residential. I think, these contentions clearly raise a question of fact which requires to be ascertained on evidence and should normally entitle the tenant leave to defend the claim.
(4) Learned counsel for the respondent relies on the judgment of the Supreme Court in Busching Schmitz P. Ltd V. P. T. Menghani : 3SCR312 , in which the purpose of this legislation was examined and it was held that effect should be given to the purpose of the Act which was to enable Government servants being placed back in occupation of their own residential premises with the ultimate object of benefitting other Government servants who were without accommodation. There is an observation in the judgment which runs as follows :-
'RESIDENTIALpremises are not only those which are let for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell. If a beautiful bungalow were let out to a businessman to run a show room or to a meditational or musical Society it remains none-the-less a residential accommodation. Otherwise, premises may one day be residential, another day commercial and, one yet a later day, religious. Use or purpose of the letting is no conclusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazars cannot make them residential premises. That is a case of reductio ad absurdum.... Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated residential premises'. And once it is 'residential' in the liberal sence, S. 14A stands attracted.' This interpretation of the Section means that even future structural alterations in the building may be considered by the Rent Controller. I am not sure if the Supreme Court meant that a non-residential building should be deemed to be residential, because it is quite obvious that nearly all non- residential buildings can be converted to residential user and nearly all residential buildings can be converted to non-residential user. It all depends on how much change you make in the building. For instance, the history of the High Court in Delhi, during the years is that the Circuit Bench of the Punjab High Court was located in Udaipur House which was a residential building; it then shifted to 4, Maulana Azad Road, New Delhi another residential house. After the Delhi High Court was created, it shifted first to the Travancore House and then to Patiala House, which were both residential buildings. Quite obviously, in and around New Delhi a number of offices and commercial firms and even factories are situated in erstwhile residential properties. All these properties can be described as being residential initially. It seems that the Supreme Court accepted the fact that these properties remained residential even after the change in user,
(5) I may point out that a Full Bench of the Madras High Court in T. Dakshinamoorthy V. Thulja Bai : AIR1952Mad413 , laid down a test for determining what is a residential building and what is a non-residential building and came to the conclusion that a building could be changed into another use either by structural changes or by agreement of the parties. The Full Bench did not accept the initial structural design of the Building as a test for determining the residential or non- residential nature of the building. This interpretation seems to have been over-ruled by the Supreme Court.
(6) Analysing the question further, it seems that the Supreme Court has given two tests for determining whether a building is residential or non-residential. If a building is used for residence, it is clearly residential, but if a building is used for non-residential purposes, it may be residential nevertheless, even though the building is used for non-residential purpose and is obviously non-residential, it may still be deemed to be residential if it can be converted into residential. The only difficulty with the second test is that the Supreme Court has not indicated the nature of the change required. Some premises may be changed into residential premises with small changes whereas some buildings may require drastic alterations.
(7) I must also point out that in the case before the Supreme Court, the landlord had constructed a residential building by virtue of a lease granted for the purpose by the Delhi Development Authority. The lease was expressly for building a residential house. A residential house was built, but it was let out for non-residential purposes; probably to get better rent. The court, thereforee, held that the letting out of a residential building for non- residential purposes did not change into a non- residential building. These were facts which were not in disputed, and hence, on the agreed set of facts, the Court found that the eviction order was properly passed under Section 14A.
(8) In present case, there are many factual difficulties. Firstly, the plot of the building, as far as I can read it, does not show that the premises have the normal residential facilities. There is no bathroom; there is no kitchen and the rooms are enclosed in such a way as to be suitable for being a godown. In fact, judging from the plan alone, the premises seem to be a godown and suitable for being a godown. It may be that other parts of this building are residential in nature, but this does not mean that this godown is also residential in nature. No doubt, if a number of constructions and alterations are made in this portion of the building, it can be used as residence. Such a change can be made in all buildings, practically all of which can be converted into a residence. In fact, if this always is carried too far, the difference between a residential building and a non-residential building would disappear and all buildings can be classified as residential. I do not think, the purpose of the Act was that all buildings should be treated as residential buildings irrespective of their prior uses. In as much as the actual case before the Supreme Court was a case of a building built expressly for residence which was being wrongly used for non-residential purposes, the law laid down must be confined to that sort of case In the case of a building which is not obviously constructed for residential purposes, the building must be treated as a non-residential building unless it is such that it could easily be used for residential purposes.
(9) There is another difficulty in this case in as much as the godown in occupation of the petitioner is a small portion of a large building the rest of which seems to be entirely residential. If the landlord really wanted a residential portion, he could easily evict other tenants. On all these grounds, this is a suitable case for granting leave to defend because a number of other facts have to be ascertained, especially whether the premises in question are residential or not, which may depend on the architectural design and other similar factors. It is quite common for a single building to have multiple uses. For instance, there may be a on. residence on the upper floor and a commercial or business premises on the ground floor, or there may be flats above shops and so It is, thereforee, not possible to determine the residential nature of the premises. The ascertainment of these factors and the proper determination of the case requires oral evidence and thereforee, leave to defend has to be granted.