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1996 Supreme(P&H) 646
PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
Shiv Kumar
Versus
Krishan Kumar
Civil Revision No. 2729 of 1995,
Decided On : APRIL 22, 1996
The proviso to Section 18-A(8) of the East Punjab Urban Rent Restriction Act, 1949 empowers the High Court to call for the records of a case and pass appropriate orders to ensure that an order passed by the Rent Controller under Section 18-A is according to law. This power is not co-extensive with the revisional power under Section 15(5) of the Act, which allows the High Court to adjudge the legality or propriety of an order passed by the Rent Controller or Appellate Authority.
Headnote:
EAST PUNJAB URBAN RENT RESTRICTION ACT, 1949 - SECTION 13-A - SECTION 18-A(8) - SECTION 2(D) - REVISION AGAINST DISMISSAL OF EJECTMENT PETITION - MAINTAINABILITY - SCOPE OF SECTION 18-A(8) PROVISO - INTERPRETATION - DISTINCTION BETWEEN RESIDENTIAL AND NON-RESIDENTIAL BUILDING - LANDLORD'S RIGHT TO EVICT TENANT FOR RESIDENTIAL NEED - BONAFIDES OF NEED - RELEVANCE.
Fact of the Case:
Petitioner-landlord filed a revision against the dismissal of his petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (the Act), seeking eviction of the respondent-tenant from the demised premises for his residential need. The Rent Controller had dismissed the petition on the grounds that the demised premises was a non-residential building and that the petitioner had failed to prove the bonafides of his alleged need.
Finding of the Court:
The High Court held that the revision was maintainable under the proviso to Section 18-A(8) of the Act, which empowers the High Court to call for the records of a case and pass appropriate orders to ensure that an order passed by the Rent Controller under Section 18-A is according to law. The Court further held that the demised premises was a non-residential building as it was being used by the respondent for running a type-writing shorthand school and that the petitioner had failed to controvert this evidence. Therefore, the petitioner was not entitled to evict the respondent under Section 13-A of the Act.
Issues: 1. Whether the revision against the dismissal of the ejectment petition was maintainable under Section 18-A(8) of the Act? 2. Whether the demised premises was a residential or non-residential building? 3. Whether the petitioner had proved the bonafides of his alleged need for the demised premises?
Ratio Decidendi: 1. The proviso to Section 18-A(8) of the Act is an independent provision that empowers the High Court to call for the records of a case and pass appropriate orders to ensure that an order passed by the Rent Controller under Section 18-A is according to law. This power is not co-extensive with the revisional power under Section 15(5) of the Act, which allows the High Court to adjudge the legality or propriety of an order passed by the Rent Controller or Appellate Authority. 2. A building is considered non-residential if it is being used solely for the purpose of business or trade or if it is let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence. In the present case, the demised premises was being used by the respondent for running a type-writing shorthand school, which is a non-residential purpose. Therefore, the demised premises was a non-residential building. 3. The petitioner had failed to controvert the evidence that the demised premises was leased out to the respondent by his father for non-residential purpose and that the respondent was using the same as such until now. Therefore, the petitioner had failed to prove the bonafides of his alleged need for the demised premises.
Final Decision: The High Court dismissed the revision petition, holding that the impugned order passed under Section 18-A of the Act was according to law.
Sarojnei Saksena, J.
1. Petitioner-landlord has assailed the order of Rent Controller, Chandigarh dated 8.2.1995 whereby his petition filed Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (in short the Act) has been dismissed. Petitioner-landlord has filed this revision against the said order Under Section 18-A(8) of the Act.
2. Petitioners contention in the lower Court was that he is owner of building S.C.F.No. 4, Sector 22-D, Chandigarh. Respondent-tenant Krishan Kumar is occupying first floor (Barsati) of his building as a tenant along with toilet/latrine, bathroom on ground floor and backyard of ground floor, which is referred to as demised premises. He averred that he is a specified landlord, was in service of Indian Army, and has retired from service with effect from 31.7.1990. After his retirement, he wants to shift to the demised premises, as the demised premises, i.e., first floor and Barsati floor had been taken by the respondent for his residential purposes.
3. Notice of the petition was given to the respondent-tenant, who filed his written statement and raised a preliminary objection about the maintainability of the petition on the ground that earlier such petition was filed by the petitionerlandlord which was dismissed on 22.1.199. The second ground of the assailment was that the demised premises is a commercial building and for the residential need of the landlord, respondent cannot be evicted Under Section 13-A of the Act. It is also averred that the petition is not maintainable as the petitioner-landlord is seeking partial ejectment from the first floor and barsati floor, but the tenancy premises includes one room in between the first floor and ground floor and bathroom, latrine and back courtyard which is common floor of this building. The bonafides of the alleged need were also questioned an it was alleged that this is only a pretext to evict him with a view to enhance the rent.
4. The Rent Controller framed issues, parties led their evidence. The Rent Controller held that the landlord is a specified landlord, but he further held that this premises is a non-residential premises, which cannot be got evicted by the landlord Under Section 13-A of the Act and lastly, the Rent Controller also held that the petitioner-landlord has failed to prove that he bonafidely requires the demised premises for his residence. Hence, the petition was dismissed.
5. Petitioner-landlords learned counsel contended that since the petitioner is a specified landlord, the Rent Controller had no jurisdiction to consider the bonafides of his alleged need. Suffice it was that he requires the demised premises for the residence of himself and of his family members. Thus, according to him, the Rent Controller has fallen into an error in dismissing the petition. He further pointed out that the demised premises was leased for residential purpose. Hence, the landlord is entitled to evict the respondent as he requires the demised premises for his own residence.
6. Respondents learned counsel raised a preliminary objection that in view of the provisions of Section 18-A(8) of the Act, this revision is not maintainable. To substantiate his plea, he has relied on Motiram Ghelabhai (deceased by L.R.) v. Jagan Nahar (deceased by L.R.s) and Ors., A.I.R. 1985 Supreme Court 709, Madan Lal Fakirchand Dudhediya v. Changdeo Sugar Mills Ltd. and Ors., A.I.R. 1962 Supreme Court 1543, Ram Narain Sons Ltd. an others v. Asst. Commissioner of Sales Tax and Ors., A.I.R. 1955 Supreme Court 765, Smt. Pushpa Devi and Ors. v. Milkhi Ram (Dead) by his L.R.s, A.I.R. 1990 Supreme Court 808 and Aundal Ammal v. Sadasivan Pillai, A.I.R. 1987 Supreme Court 203. His contention is that the proviso Appended to subclause (8) of Section 18-A is just an exception to the provisions of Section 18-A(8) and hence, the impugned .order is not revisable. He further contended that even Under Section 115, Civil Procedure Code, or under Article 227 of the Constitutio
