S.P.GOYAL, J. - (1.) THIS judgment will dispose of three Civil Revision Nos. 1447, 1448 and 1449 of 1981 as all on them are between the same parties and involve common questions of law and fact.
(2.) SMT . Ramti Devi, the land-lady, filed a petition in the year 1975 for ejectment of the respondent from the house in dispute on the grounds that Sat Parkash tenant has not paid the rent since October 1, 1974; that he is using the demised premises for commercial purpose; that she requires the said premises for her own occupation and that its value and utility has been impaired by the tenant. She filed two other petitions in the year 1977 and 1978 mainly on the ground of non-payment of rent but all other grounds taken in the earlier petition were also reiterated. Respondent No. 1 only contested the petition, tendered the arrears of rent and controverted the other allegations. He further pleaded that the building in dispute was let out for purpose of business and in the alternative alleged that it was a scheduled building where he was practising as Vaid since the last fifteen years. After trial, the Rent Controller found that the predecessor-in-interest of the present landlady had moved a petition for ejectment of the tenant on the ground that the demised premises had been let out for residential purposes but were being used for extracting juices and manufacture of syrups. This plea of the landlord was upheld and the ejectment order passed. However, at the stage of appeal, the landlord gave up his rights under the ejectment order passed by accepting an increase in the rent from Rs. 25/- to Rs. 35/- per month. On these facts, it was held that the landlord was not entitled to maintain a second petition to seek ejectment on the ground of perversion of use of the demised premises. As regards the plea of personal need it was held that as the tenant was pursuing his profession as a Vaid as well as residing there, it was a schedule building as defined in section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act) and as such ejectment of tenant on the ground of personal necessity could not be claimed. The petition was consequently dismissed. Its finding having been affirmed on appeal, the landlady has come in revision. The learned counsel for the petitioner has assailed the correctness of the finding regarding perversion of the use on the ground that in the earlier petition the allegation was confined to the extraction of juices and manufacture of the syrups whereas in the present case a fresh act of perversion of use namely the carrying on of the profession as Vaid has been alleged and proved. The present petition thus having been based on a new cause of action, it was contended, was not barred because of the previous decision. There is no merit in the contention raised. The petitioner, without specifying the purpose has alleged that the demised premises are used for commercial purpose (sic) covers all judicial proceedings. The attorney who gave statement on behalf of the landlady, again made no mention that the tenant was using the building for his profession as a Vaid and the misuse averred was only that of extraction of juices and manufactured of syrups. When the landlady has neither pleaded nor produced any evidence to claim ejectment on the ground that the respondent has misused the building by carrying on the profession as a Vaid, it would not be open to her to seek ejectement on any assertion made by the tenant in his defence. Again, it appears that the tenant was perusing the profession of a Vaid even at the time when the earlier application for his ejectment was filed. No doubt, in his written statement, he stated that he was carrying on the practice as a Vaid for the last fifteen years but the period was mentioned casually only to show that the building was a scheduled building and from the other evidence available on the record it is evident that he was practising as Vaid even prior to October 1963 when the earlier petition was filed. Exhibit RW 7/1 is a certificate of registration as a vaid which was issued on December 17, 1965. The name of the respondent was entered in Part II of the Register maintained under the Punjab Ayurvedic And Unani Practitioners Act, 1963 because he was not possessing any qualification specified in Schedule I of the said Act. The qualification prescribed for entitling a person to have his name entered in Part II as given in section 15(3) of the Act are as under :- "15(3) Any person not in possession of the qualifications specified in Schedule I but - (a) whose name is entered immediately before the 13th day of December, 1963 in the list maintained under section 34 of the East Punjab Ayurvedic and Unani Practitioners Act, 1949, or under section 33 of the Pepsu Ayurvedic and Unami Practitioners Act 2008 Bk; or (b) who proves to the satisfaction of the Registrar upto 30th June, 1972, that he was in practice as a practitioner on the first day of November, 1966 and is continuing as such; shall subject to the provisions of this Act and on payment of such fees as may be prescribed in this behalf, be entitled to have his name entered in Part II of the Register, subject to such conditions as may be prescribed." So the name of the tenant could be entered in Part II of the Register only if he satisfied the conditions laid down either in clause (a) or clause (b) of section 15(3). In either case he had to be a practising Vaid before the Ist day of August 1963 to entitle him to get his name entered in Part II of the Register which proves beyond doubt that he had been practising as a vaid long prior to the finding of the earlier petition on October 21, 1963. The ground or perversion of the use of the building because of the carrying on of the profession of a Vaid was therefore, available to the landlord when the earlier petition was filed. That ground having been not taken the second petition on its basis would be barred because of the principle of constructive res judicata which as held in Devila Modi v. Sales Tax Officer, Ratlam and others A.I.R. 1965 S.C. 1150 : It may also be noticed that neither before the Rent Controller nor the Appellate Authority it was urged that the tenant was liable to ejectment as he had perverted the use of the demised premises by using it for his profession as a Vaid. On the other hand the averment of the tenant in his regard was categorically denied. It would not be therefore, open to the landlady to set up a new case altogether at the revisional stage and as such this ground of ejectment was rightly held not available by the authorities below.
(3.) IN support of second ground of personal necessity, the learned counsel urged that the same has been erroneously rejected taking the building in dispute to be schedule building. It appears that neither the authorities below nor the learned counsel for the parties were aware of the fact that under the Haryana Act the buildings are classified in two categories, residential and non-residential. It was only under the East Punjab Urban Rent Restriction Act that the buildings in which certain professions were carried on by the tenant were classified as schedule buildings. The contention of the learned counsel, therefore, is well-merited that the authorities below have illegally rejected the claim of personal necessity taking the demised premises as a schedule building. However, it is not necessary to remand the case on that score because the plea of personal necessity is liable to be rejected on this ground as well.;