The nature of the building does not change merely because one of the rooms was being used as a shop from the initiation of the tenancy, and for the purposes of personal necessity, there could be no distinction between residential and commercial buildings.

VINOD K. SHARMA, J.

1. The present revision petition has been filed against the orders passed by the learned Rent Controller, Gurgaon and confirmed by the appellate authority dismissing the ejectment petition filed by the petitioner.

2. The petitioner has sought the eviction of the respondent-tenant from a room being used as a shop on the ground of personal necessity as well as for non-payment of rent. The rent was tendered on the first date of hearing and the case was contested qua the ground of personal necessity.

3. Before the learned Rent Controller the counsel for the respondent admitted the personal necessity of the petitioner to occupy the premises in dispute but he claimed that as the tenanted premises was a non residential building the same cannot be got evicted on the ground of personal necessity. It was also claimed that the tenanted premises was built in the year 1967 with an intent and purpose to let it out as shop and it was never used as an integral part of the whole building as reflected in the site plans Ex. A2 and Ex. A3. The Court has held it to be an independent unit by holding that no ejectment could be ordered for non-residential building, accordingly ejectment petition was dismissed. The petitioner filed an appeal against the said order. The appellate Authority, Gurgaon dismissed the appeal. The learned appellate authority also came to the conclusion that the premises was being used as a shop from the very beginning. It was not part and parcel or integral part of the residential building. In view of this, it was held that no permission under section 11 of the Haryana Urban ( Control of rent and Eviction ) Act, 1973 was required to be taken. Accordingly by holding that it was not a residential building, the appeal was dismissed.

4. The learned counsel for the petitioner placed reliance on a judgment in Mohinder Prasad Jain Vs. Manohar Lal Jain (2006) 2 supreme Court Cases 724 to contend that landlord is entitled to seek eviction of tenant from a non-residential building on the ground of personal necessity. Thus, the contention of the learned counsel for the petitioner is that once the personal need of the petitioner was admitted by the tenant, he is entitled to seek eviction in view of the fact that for the purposes of personal necessity there could be no distinction between residential building and the commercial building. The learned counsel for the petitioner also placed reliance on the judgment of this Court in case Raj Kumar Gambir vs. Kanwar Sain Jain 2003 (1) RCR 558 to contend that when in a residential building a room on the ground floor is let out for a small shop, the character of the building remain as a residential building. The learned counsel for the petitioner contends that there is ample evidence to show that the building was in the residential area and as a matter of fact the building plan was sanctioned by the Municipal Committee as a residential building and it was in a residential area. Therefore, the finding of the learned Court below on this ground cannot be sustained.

5. The learned counsel for the respondent placed reliance on the judgment of this Court in case of 2003 (1) RCR 670 to contend that it was not open to the petitioner to seek eviction of the respondent herein for his residence once the shop was given for non-residential purposes. The contention of the learn State Bank of Patiala Vs. S. Zulzuaoar Singh Virk and othersed counsel for the respondent is that both the Courts below have given a concurrent finding that from the very beginning the room was let out as a shop and, therefore, it is a commercial building. The petitioner is not entitled to seek eviction on personal bona fide necessity for his residential purposes as the case set up by him was that he needed the same for his residential purposes. The learned counsel for the respondent placed reliance on the judgments of this Court in cases M/s K. G. Industries and others Vs. Joginder Singh 1992 (2) Punjab Law