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MOHAN LAL versus RAKESH KUMAR BHAKOO & ANR

High Court of Punjab and Haryana, Chandigarh

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Mohan Lal v. Rakesh Kumar Bhakoo & Anr - CR-3254-2003 [2006] RD-P&H 2378 (18 April 2006)

Civil Revision No. 3254 of 2003. (1)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 3254 of 2003.

Date of Decision: 17.4.2006

Mohan Lal ...Petitioner.

Versus

Rakesh Kumar Bhakoo and another ...Respondents.

Coram: Hon'ble Mr. Justice Hemant Gupta.

Present: Shri M.L. Sarin, Senior Advocate, assisted by Ms. Alka Sarin, Advocate, for the petitioner.

Shri R.L. Batta, Senior Advocate, assisted by Shri J.S. Saggi, Advocate, for the respondent.

JUDGMENT

The tenant is in revision petition aggrieved against the order of ejectment passed by the learned Appellate Authority on the ground that the petitioner has changed the user of the premises; has ceased to occupy the premises and also that the premises are required for bona-fide use and occupation of the landlord.

Ramesh Kumar Bhakhoo and Vinay Kumar have sought ejectment of the petitioner herein, inter-alia, on the ground that the premises were taken on rent by the respondent for residential purposes but he has started the business of sale of tea. The landlords also relied upon the photographs showing the premises being used for commercial purposes.

The landlords have also alleged that the tenant has ceased to occupy the premises and the same are lying closed for the last four years. The tenant has shifted to his own constructed house bearing No. 2726, Gurdev Nagar, Civil Revision No. 3254 of 2003. (2)

Ludhiana and the landlords also pleaded that the premises in question are required by the them for their use and occupation and their family members.

The tenant denied that the premises were taken on rent for residential purposes. In fact, it was taken on rent for residential-cum- commercial business purpose. It is further admitted that the tenant has constructed his residence in Gurdev Nagar, Ludhiana about five years back and is residing therein. The relevant extracts from the written statement reads as under:-

"c) That sub para 2(c) of the petition is wrong and is denied. It is totally incorrect that premises was taken on rent only for residential purposes. In fact, it was taken on rent for residential-cum-commercial/business purposes.

The respondent has been running his business of wine contractor and also that of sale of tea besides his residence. The property was given for commercial purposes and for residential purposes which is being used by the respondent since inception of the tenancy. Rest of the para is wrong and is denied.

d) That sub para 2(d) of the petition is wrong and is denied. In fact the respondent has constructed his residence in Gurdev Nagar, Ludhiana about 5 years back and is residing there which is in the knowledge of the petitioner from the very beginning and the respondent has also been using and occupying the tenanted premises for his business purposes continuously and has never Civil Revision No. 3254 of 2003. (3)

ceased to occupy the premises. The report of the Local Commissioner, is wrong, false, exparte and procured one, and the respondent reserves his right to file the objections to the said report of Local Commissioner.

Rest of the para is also wrong and is denied." Ramesh Kumar appeared as AW1 and also examined Hari Kiran Thaman as AW2. The landlords also examined AW3 Ramesh Kumar Maini. On the other hand, the tenant has examined his Accountant Sanjiv Kumar as RW1, an acquaintance Harbans Lal as RW2 and himself appeared as RW3. It has been deposed by RW1 Sanjiv Kumar in examination-in-chief itself that the tenant has shifted his residence from the property in dispute but is having his business office in the property in dispute. Similarly RW2 Harbans Lal has also deposed that the tenant shifted his residence from the property in dispute in the year 1995 and he is now residing at Gurdev Nagar. Mohan Lal tenant, while appearing RW3 has deposed that the premises were taken on rent in the year 1970 for business as well as for residence and that he is having business work in the property in dispute. Though the learned Rent Controller dismissed the petition for eviction but the learned Appellate Authority reversed the findings recorded by the learned Rent Controller and passed an order of ejectment.

It has been found by the learned Appellate authority that the tenant having shifted his residence from the demised premises to Gurdev Nagar and the demised premises being used for business purposes, would amount to change of user. Under the East Punjab Urban Rent Restriction Act, 1949 (for short `the Act'), the building has been defined under Section Civil Revision No. 3254 of 2003. (4)

2(a) of the Act to mean a building being used solely for the purposes of business or trade, whereas a residential building has been defined under Section 2(g) of the Act, to mean any building, which is not a non-residential building. Since it is the case of the tenant himself that the building was let out for residence and business, it was a residential building as defined under the Act, but having shifted his residence from the premises in dispute, it has changed the nature of the building to be that of a non-residential building. Such change of character of the building amounts to change of user as held in Telu Ram Vs. Om Parkash Garg 1971 PLR page 1 by the Hon'ble Supreme Court. Therefore, I do not find any illegality or irregularity in the finding recorded by the learned Appellate Authority that the petitioner has changed the user of the premises and is liable to be evicted from there.

The learned Appellate Authority has also found that the premises are required for bona-fide use and occupation of the landlords. In respect of such finding, learned counsel for the petitioner has vehemently argued that the landlord has not pleaded three basic ingredients required to seek eviction on such ground under the Act. The learned Rent Controller has declined to grant an order of eviction, inter-alia, on the said ground as well. Still further, the landlords have moved an application for amendment of the petition so as to plead necessary ingredients but such application was declined by the learned Appellate Authority on 8.4.2002. Learned counsel for the petitioner has also contended that one of the landlords i.e. Vinay Kumar Bhakoo has sold his 1/2 share in the property in dispute vide sale deed dated 27.9.2004. The ejectment was sought on the pleadings of the requirement of the said Vinay Kumar, who was in possession of the two Civil Revision No. 3254 of 2003. (5)

rooms out of the seven rooms. Even the Appellate Authority has found the requirement of said Vinay Kumar as bona-fide. Therefore, the order of ejectment sought on the bona-fide requirement of the premises, is not sustainable on account of subsequent events. Learned counsel for the petitioner has also relied upon Savani Transport (P) Ltd. Vs. L.

Rajamanikkam (dead) by Lrs. 1994 Supp (2) SCC 483. and Adil Jamshed Renchman (D) by LRs 2005(1) RCR 284 to contend that having sold the premises, the landlord is not entitled to seek eviction.

However, I am unable to agree with the arguments raised by the learned counsel for the petitioner.

This Court in Kesho Ram Vs. Jagan (Deceased) represented by his LR OM Parkash and Others 1977 RCR 623, considering the Full Bench decision of this Court in Banke Ram Vs. Shrimati Sarawvati Devi 1977 RCR 595 (F.B.), has held that it is necessary for the landlord to plead necessary ingredients but it has been held that if such necessary ingredients are not pleaded, the landlord is required to be provided with an opportunity to make necessary pleadings. Still further, it has been held that the tenant should raise an objection in the written statement at the earliest to the effect that the necessary ingredients have not been pleaded.

A perusal of the written statement shows that no such objections in respect of lack of pleadings of necessary ingredients have been raised. The parties have understood the case and led evidence. It has been found that the landlord satisfies the necessary ingredients contemplated under Section 13 of the Act to seek eviction on the ground of bona-fide personal requirement. Therefore, the findings recorded by the learned Appellate authority cannot be faulted in any manner. Still further, Civil Revision No. 3254 of 2003. (6)

once the landlord has moved an application for amendment of the plaint so as to plead necessary ingredients and such amendment has been resisted by the tenant, it is not open to the tenant now to allege that necessary ingredients have not been pleaded. In view of the judgment of this Court in Kesho Ram's case (supra), the landlord was required to be provided with an opportunity to plead necessary ingredients. Therefore, the tenant cannot be permitted to raise a plea that necessary ingredients have not been pleaded, having failed to raise such an objection in the written statement at the earliest opportunity and later objecting to such amendment at the Appellate Stage.

Though one of the co-owners has sold his 1/2 share vide registered sale deed during the pendency of the revision petition, but that will not frustrate the ground of eviction on bona-fide personal requirement pleaded in respect of the other landlords as well. It has been found by the learned Appellate Authority that though five rooms are in possession of Ramesh Kumar, the continuing landlord, but such landlord has no drawing room and a store. Still further, the additional accommodation of three rooms is required by the landlord for a comfortable living. As per stand of the tenant, he is running a liquor business. Running of a liquor business or for that matter any business in the front portion of a residential premises, cannot be countenanced in any manner. Even if there may not be any additional requirement of the space but it is the natural desire of the landlord to use the premises in the best possible manner without any interference of the tenant, more so of the kind in the present proceedings.

The judgments referred to by the learned counsel for the petitioner are clearly not applicable in the facts and circumstances of the Civil Revision No. 3254 of 2003. (7)

present case. The vendee of Vinay Kumar has not objected to the order of eviction being sought by one of the continuing landlords. Still further the entire premises have not been sold by one of the co-owners, therefore, one of the landlord as a co-owner is entitled to seek ejectment of the tenant.

Thus, the findings recorded by the Appellate Authority cannot be said to be suffering from any patent illegality or irregularity, which may warrant interference by this Court in exercise of its revisional jurisdiction.

Hence, the present petition is dismissed. However, the petitioner is granted two months' time to vacate the premises.

17.4.2006 (Hemant Gupta)

ds Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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