R. P. Singh, J. - (1.) THIS civil revision under section 25 of the Provincial Small Cause Courts Act has been filed against the judgment and decree, dated 7-7-1987 passed by the VIII Addl. District Judge, Kanpur Nagar whereby the opposite parties' suit for ejectment of the applicant from the house in dispute and for recovery of arrears of rent and mesne profits has been decreed.
(2.) THE facts of the case, briefly, are that the opposite parties landladies filed the aforesaid suit against the applicant on the allegation that the applicant who was a tenant of the house in suit on a monthly rent of Rs. 260/- is in arrears of rent from July, 1985 to December, 1985 which has not been paid inspite of notice of demand, dated 3-1-1986 and consequently he was a defaulter in payment of rent and was liable to be evicted on the ground. It was also asserted in the suit that the tenancy of the applicant has been terminated by serving upon him a notice in this behalf as contemplated by section 106 of the Transfer of Property Act. THE suit was contested by the applicant on the ground that he was not a defaulter in payment of rent and that the tenancy of the applicant has not been terminated by serving upon him a valid notice as contemplated by section 106 of the Transfer of Property Act. It was further asserted that the applicant tendered rent which was, however, not accepted by the opposite parties without any valid cause and hence he deposited the same under section 30 of the U. P. Act no. XIII of 1972. It was further asserted by the applicant that since he had made necessary deposits as contemplated by section 20 (4) of the Act, he was entitled to the benefit of the section which relieved him against the liability for eviction from the accommodation in dispute. THE Addl. District Judge, however, on appraisal of the evidence on record, held that the applicant was in arrears of rent for more than four months and that since the applicant had already constructed a building at Transport Nagar in the same city, which is fit to be used as a residential building and hence in view of the proviso to section 20 (4) of the Act, he was not entitled to the benefit of section 20 (4) and decreed the suit for ejectment and arrears of rent, vide his judgment, dated 7-7-1987 which order is in challenge in the present revision. The main controversy in the present case is, therefore, whether the case of the applicant is covered by the proviso of section 20 (4) of the Act which reads as follows : Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. The learned counsel for the applicant contended that no plea in this behalf was raised by the opposite parties landladies in the plaint and hence the AddI. District Judge committed an error in denying the benefit of section 20 (4) of the Act to the applicant on the basis of the proviso thereto. It may be noted that it is the applicant who was claiming the benefit under section 20 (4) of the Act and hence it was for him to establish that the proviso thereto was not applicable. When the suit was filed by the opposite parties, they could not envisage that the applicant will claim the benefit of section 20 (4) of the Act. Since the applicant claimed the benefit of section 20 (4) of the Act, the burden was on the applicant to establish that he was entitled to the said benefit. The applicant could get the benefit only if he had not only complied with the requirements of section 20 (4) but also succeeded in establishing that his case was not covered by the proviso thereto. In this case, an issue was also framed specifically on this point as to whether the applicant was entitled to the benefit of section 20 (4). The court below on the basis of the evidence produced before it by the parties held that the applicant was not entitled to the benefit of section 20 (4) of the Act inasmuch as the applicant had constructed a house in Transport Nagar which could be used as his residential house.
(3.) THE question as to what is the 'residential premises' came up for interpretation in the case of Busching Sehmitz Private Ltd. v. P. T. Menghani, AIR 1977 SC 1569, where Krishna Aiyer, J., observed as follows: "Engineering skills and architectural designing have advanced for enough to make multi-purpose edifices and by minor adaptations, make a building serve a residential, commercial or other use. THE art of building is no longer rigid and the character of a house is not an 'either or'. It can be both, as needs demand. It is so common to see a rich home turned into a business house, a dormitory into a factory. Many small-scale industries are run in former living quarters. To petrify engineering concepts is to betray the law's purpose. Whatever is suitable or adaptable for residential uses even by making some charges, can be designated 'residential premises'. And once it is 'residential' in the liberal sense, Section 14-A stands attracted Dictionary meaning, common-sense understanding and architectural engineering concur in the correctness of this construction.................................................................................... A building which reasonably accommodates a residential use is a residential accommodation nothing less, nothing else. THE circumstances of the landlord are not altogether out of place in reaching a right judgment. THE 'purpose test' will enable officers who own houses to defeat the government by pleading that they do not own 'residential premises', because the lease is for commercial use built though it was and suitable though, it is for residence. Similarly the 'possibility test' may make nonsense of the provision." In view of the observations noted above, we will now examine whether the applicant is not covered by the proviso to section 20 (4). The fact that the applicant has constructed a building in Transport Nagar in the year 1974 is admitted. What has to be examined is if the building so constructed was a residential building as claimed by the opposite parties or that it was a commercial building as claimed by the applicant. The learned counsel for the applicant contended that Transport Nagar is essentially a commercial locality and in his statement before the Addl. District Judge, in paragraph '4' of his cross-examination, the applicant has clearly stated that the building in Transport Nagar was constructed by him in the year 1974 which is a two storeyed building i. e., ground floor, first floor and second floor. On the ground floor, there are two shops, balcony and a godown. On the first floor, according to the own statement of the applicant, there are two flats. In one flat, there are four rooms and in the other flat, there are three rooms and there is a covered Verandah in front of them. There are also two latrines and bath room. On the second floor, there are two rooms It has also come in evidence that there is a store and kitchen also on the first floor. In view of this statement of the applicant himself that there are two flats on the first floor and one flat comprises of four rooms while the other flat comprises of three rooms along with bath room, latrine and kitchen, it is clear that first and second floor of the building are residential building equipped with all facilities for residence of families. The Addl. District Judge has relied on this statement of the applicant himself in arriving at a finding that the first and second floor of the building are residential in nature and hence in view of the proviso to section 20 (4) of the Act, the applicant is not entitled to the benefit of the said section.;