The court emphasized the importance of the original intended use of the premises and the surrounding area in determining the maintainability of an eviction application for a non-residential building.

H.S.Bedi, J.

1. The petitioner Dharam Pal Daulay, moved an application under Section 13-A of the East Punjab Urban Rent Restriction Act, claiming that he being a specified landlord., was entitled to seek eviction of his tenant from a residential building. The respondent-tenant put in appearance and was granted permission to contest the application It was asserted by the tenant in the written statement that the premises in dispute which was merely one room out of many and had been let out as a shop and, therefore, the building being non-residential an eviction application under Section 13-A of the Act, was not maintainable.

2. The Rent Controller framed the following issues :-

1. Whether the petitioner is a specified landlord ? OPA.

2. Whether the petitioner requires the tenanted premises for his use and occupation ? OPA.

3. Whether the petitioner is not maintainable ? OPR.

4. Relief?

3. Issue No. 1 was decided in favour of the applicant and it was held that he was a specified landlord, whereas the finding on Issues No. 2 and 3 was that the building in dispute being a non-residential one could not be got vacated under section 13-A of the Act. On the basis of these findings, the application was dismissed vide the impugned order dated January 10, 1992.

4. It has been urged by Mr. O. P. Hoshiarpuri, learned counsel for the petitioner that the building in dispute had been constructed as a residential one in accordance with the scheme Annexure A-6, which debarred any other type of construction and as such, the finding of the Rent Controller to the contrary, was wrong. He has also urged that assuming for a moment that the building had been constructed for being used as a shop, the same being contrary to the scheme Annexure A-6, would not debar the landlord from claiming the eviction of his tenant. He has asserted that no change of user could be made by the tenant by using the demised premises as a shop and the same being contrary to the provisions of section 11 of the Act, the remedy available to the petitioner could not be taken away. In support of his case, Mr. Hoshiarpuri, has cited Shri Hari Mittal v. Shri M.B. Sikka, (1986-1) 89 P. L. R. 1, Vinod Kumar Arora v. Smt. Surmit Kaur, A. I. R. 1987 S. C. 2179, Dr. Subhash Chander v. Giani Joginder Singh, Sewing Machine Repairer, (1989-1) 95 P. L. R. 631, and Kewal Krishan alias Kala v. Smt. Bhagwanti, (1992-1) 101 P. L. R. 565.

5. In reply, Mr. J. M. Sethi, learned counsel for the respondent-tenant has argued that the findings of fact recorded by the Rent Controller were that the building had been constructed and let out specifically for being used as a shop and as a matter of fact, the entire neighbourhood was a commercial area dotted by show-room and shops. He further urged that the findings of fact based on good evidence did not warrant any interference in revision.

6. After hearing the learned counsel for the parties, I find no merit in this petition. It appears to me from the evidence produced on record and which has been discussed in extenso by the Rent Controller, the entire area was being used as commercial/shopping centre and that the demised premises had in fact been constructed for being used as a shop. In view of this categorical finding, the judgments cited by Mr. O. P. Hoshiarpuri, learned counsel for the petitioner lose their significance as there has been no change of user. It is the admitted case of the parties that the room in question was constructed on a date later than the rest of the building and as such was not shown in the Site plan that had been sanctioned by the Municipal Committee. This would further show that as originally envisaged the larger building was perhaps a residential one but the room constructed at a later stage, was used as a shop as its location in the site plan produced also indicates. Mr. Hoshiarpuris final assertion that as Annexure P-6, debarred the construction of any shop in the area concerned, the room in question should therefor