GIAN CHAND Vs. TULSI RAM

JUDGEMENT

(1.) Both the Rent Controller and the appellate authority have disposed of the case on a point of law without going into the merits on facts and it is urged before me that the recent decision of the full Bench in M/s. Sant Ram Des Raj V/s. Karam Chand, 1962 64 PunLR 758, dissenting from the earlier Bench decision in Ramkishan Das etc. V/s. Gordhan Das,1960 62 PunLR 670 settled the legal position negativing the view of the lower tribunals. The contention seems to be correct. I accordingly allow the revision and setting aside the orders of the appellate authority and the Rent Controller direct that the Controller should go into the question of sufficiency of the accommodation in possession of the landlord and also into further pleas on facts which arise in the case and submit his report through the appellate authority which will also give its opinion on the points within four months from today. The petitioner is directed to appear before the Rent Controller on 30th September, 1968. The respondent is not represented before me, though served. He will have to be served by the Rent Controller for further proceedings.

(2.) This order may be read in continuation of my order dated 3rd September, 1963 whereby a result of the decision of a full Bench of this Court in M/s. Sant Ram Des Raj V/s. Karam Chand, I set aside the orders of the appellate authority and the Rent Controller and directed the Controller to go into the question of sufficiency of the accommodation in possession of the landlords and into further pleas on facts arising in the case and submit his report through the Appellate Authority which was also directed to give its opinion on the points raised. The report has now been received. The learned Rent Controller recorded the evidence led by the parties and after weighing it came to the conclusion that the house in dispute continues to be residential and the plea of personal necessity of the landlord for evicting the tenant would be available; the Controller also came to the conclusion that in view of large number of family members of the landlord the accommodation in his occupation was insufficient. As a result of this finding, the petitioner was held to be entitled to seek eviction of the tenant from the house in dispute.

(3.) Before the learned Appellate Authority, the tenant did not seriously dispute the correctness of the finding of the learned Rent Controller that at the time when these proceedings were initiated, the petitioner-landlord did not have in his possession adequate accommodation for his own residence and for the residence of his family members dependent on him. The Appellate Authority however, proceeded to consider at length whether the building in question was residential or non-residential as defined in the E.P. Act No. 3 of 1949. There was no dispute before him that the tenanted property is a building within the statutory definition, the only dispute raised being whether it is a residential or a non-residential building. The landlord, according to the judgment of the learned Appellate Authority, had purchased the house in question in the year 1959, though it had been in possession of the respondent-tenant since 1947. Considering that the tenant had been running a sort of a milk dairy since a long time the Appellate Authority came to the conclusion that the premises in dispute constituted a non-residential building, the entry in the papers of the Rehabilitation Department of its being a residential house notwithstanding. After noticing the definition of non-residential building as a building used solely for the purpose of business or trade, the Appellate Authority has proceeded to observe that the statute prohibits the conversion of a residential building into a non-residential one and, therefore, since the landlord never objected to the use of the premises for a purpose different from the one for which it was let out, it must be held that the premises constituted a non-residential building. The fact that the tenant also resides in a part of the building has been considered not to be sufficient to convert the non-residential building into a residential one. On this view, the learned Appellate Authority has expressed its opinion that the tenant cannot be ejected on the ground that the landlord needs the premises for his personal use.