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2018 Supreme(P&H) 2562
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Harinder Singh Sidhu
CR No.1582 of 2018(O&M)
Vijay Kumar
v.
Charanjit Singh & Ors
{Decided on 12/10/2018}
Eviction – Nature of Building – Pleadings – There was no pleading that the shop is a part of a residential building – In the absence of such pleading the plea that eviction for non residential purpose cannot be sought cannot be taken in revision for the first time as this plea had not been raised before the Rent Controller
Eviction – Nature of Building – In the absence of any zoning plan, scheme or notification proving the residential or non-residential character of a building, the purpose for which the demised premises was let out would determine its character as residential or non-residential
Headnote:(A) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Nature of Building – As per the rent note the premises taken on rent had been described as a shop – It was being used by the tenant as such – Eviction therefrom is also being sought to use the same as a shop – Thus eviction could be sought for its use for non-residential purposes; even though said shop is part of residential building. (Para 31)
(B) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Nature of Building – As eviction was being sought in respect of a shop the landlord was not required to disclose the accommodation in premises which was being used as residential. (Para 23)
(C) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Nature of Building – Additional Evidence at Appellate stage – Application by tenant to examine draftsman to prove the complete site plan to prove existence of Chubbaras – Held; Tenant was fully aware of this fact and could have easily led the evidence before rent controller – Application held to be rightly dismissed – Civil Procedure Code, 1908, O.41 R.27.
(D) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Bonafide Need – The fact that the petitioners had not decided as yet as to which shop is to be used for what purpose does not disprove the bona fide need of the petitioners. (Para 33)
(E) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Nature of Building – In the absence of any zoning plan, scheme or notification proving the residential or non-residential character of a building, the purpose for which the demised premises was let out would determine its character as residential or non-residential. (Para 27)
(F) East Punjab Urban Rent Restriction Act, 1949, S.13 – Eviction – Nature of Building – Pleadings – There was no pleading that the shop is a part of a residential building – In the absence of such pleading the plea that eviction for non residential purpose cannot be sought cannot be taken in revision for the first time as this plea had not been raised before the Rent Controller. (Para 26)
Mr. Harinder Singh Sidhu, J. - This order shall dispose of aforesaid four revisions petitions. The landlords (respondents herein) in all these petitions are the same though the tenants (petitioners herein) are different. The ground of eviction in all the four petitions is the same. The eviction of the tenants has been sought from four different shops in the same building.
The facts are being taken from Civil Revision No.1582 of 2018. For convenience, the parties will be referred to as per their status in the eviction petition. The tenant will be referred to as the respondent and the landlords will be referred to as the petitioners.
2. The respondent has filed this revision petition impugning the order dated 17.11.2016 of learned Rent Controller, Ludhiana whereby the eviction petition has been allowed and the order dated February 14, 2018 of the Appellate Authority, Ludhiana whereby his appeal has been dismissed.
3. The property in question was originally owned by one Haveli Singh. After his death, it was inherited by his daughter Manjit Kaur on the basis of a registered will. The respondent was inducted as a tenant in the shop by Jaswant Singh, husband of Manjit Kaur on a monthly rent of Rs.230/- per month. Jaswant Singh died on 22.5.2001. After his death, the rent was being collected by Manjit Kaur. The rent was periodically increased and at the time of filing of the eviction petition was Rs.500/- per month. Manjit Kaur died on 2.10.2006 leaving behind the petitioners as her legal heirs. Petitioner No.1 and 2 are the sons of Jaswant Singh and Petitioner No.3 is his daughter.
The ejectment was sought on two grounds:
(i) For non-payment of rent w.e.f. 1.4.2007.
(ii) For bona fide use and requirement by the petitioners for their personal use and occupation of Taranjot Singh and Gurmukh Singh sons of Charanjit Singh-petitioner no.1 and Jaspreet Singh son of petitioner No.3- Harjit Kaur.
4. It was pleaded that there are seven shops in the building in question. Five shops were on rent with different tenants. Shop No.1 was on rent with the respondent. It was pleaded that Petitioner No.1 is carrying on the business of denting and painting of scooters and motorcycles in shop shown as yellow in the site plan. The said shop is in small lane on the rear side of the building whereas the other six shops were abutting the main chowri sarak road. There is no proper approach to the shop of petitioner no.1 from the road. As such his business had not picked up. The shop shown as green in the site plan was in possession of Gurmukh Singh son of petitioner No.1- Charanjit Singh. Gurmukh Singh was stated to be handicapped and unable to move about. He was stated to be in the business of mobile accessories, recharge coupons and repairs of mobiles in the shop shown as green in the site plan under the name and style of ‘M/s Singh Telecom’. It was pleaded that the said shop was very small in size and not conducive for him to carry on his business. After getting the shops vacated he intended to increase the size of his shop in order to expand his business. The other shops were in possession of other tenants regarding which also eviction petitions had been filed. It was pleaded that petitioner no.2 was not in possession of any shop in the building. He was in the business of selling fruit on a rehri just in front of the building in question. Jaspreet Singh son of petitioner no.3- Harjit Kaur had passed 10+2. He had learnt the art of AC Repair. As he was not in possession of any shop, he was doing repair work of ACs from his house. Taranjot Singh was studying at Guru Nanak Dev Poly Tech College, Sidhwan Bet and pursuing Mechanical Engineering. He would complete his education within one year. Thereafter, he intended to set up his business in Mechanical Engineering in a shop in this building. It was pleaded that except for the shops shown as red, yellow, green and brown shown in the site plan, the remaining portion of the building shown as blue was r
