SMT. NARANJAN KAUR Vs. DR. SIRI RAM

JUDGEMENT

(1.) THERE were two grounds urged before the Appellate Authority and both were negatived by it in its appellate order of November 11, 1965. The concurrent finding of fact of the Rent Controller and the appellate Authority is that a part of the demised shop has been used by the tenant for residential purposes. Both the authorities following the dictum of Falshaw CJ. in Inder Singh v. Kalu Ram, (1965) 67 P.L.R. 58, have said that is not a user of the demised shop contrary to the purpose for which it was let. It is now pointed out that in Brahma Nand v. Narain Singh C.R. 723 of 1964, Civil Revision No. 723 of 1964, decided by a Division Bench consisting of Dua and Narula JJ. on March 14, 1966 when that case first came before Mahaian J. on October 7, 1965 the learned Judge, doubting the correctness of the decision in Inder Singh v. Kalu Ram, (1965) 67 P.L.R. 58, had referred the matter to a larger Bench, but when the case came before the Division Bench on March 14, 1966 the matter having been compromised, the question remained undecided. In the circumstances, I refer this case to a Division Bench and it will now be set for hearing in the list at a very early date. The whole of the case will be disposed of by the Division Bench. This is to save return of the case and further delay in its disposal.

(2.) THE demised premises is a shop situate in bazar Nauhrian in the urban area of Jullundur. It is the property of Niranian Kaur applicant. It was let by her to Dr. Sri Ram Joshi respondent to be used by him as a clinic for the carrying on of his profession as a medical man.

(3.) THE demised shop comes within the definition of the expression 'non -residential building" in section 2(d) of the Act, in which it is defined to mean 'a building being used solely for the purpose of business or trade", and there is a proviso to this definition of the expression 'nonresidential building' in clause (d) of section 2 which proviso reads -'Provided that residence in a building only for the purpose of guarding it shall not be deemed to convert a 'non -residential building' to a 'residential building". On the clear words of the definition of this expression the building, which is a 'non residential' building, has to be used 'solely' for the purposes of business or trade. Obviously if it not used solely for that purpose, it would not come within the definition of the expression 'non -residential building'. In clause (g) of section 2 of the Act the definition of the expression 'residential building' is given to me an 'any building which is not a non -residential building'. It is evident from the definition of these two expressions that non -residential buildings are those that are used solely for the purposes of business or trade, and tie remaining, for the purposes of the Act, are residential buildings It is further clear from the definition of the expression non -residential building', read along with the proviso in clause (d) of section 2, that such a building is solely to be used for purposes of trade or business and the only residence that is permitted by this provision in such a building to save it from being concerted into a 'residential building' is residence 'only for the purpose of guarding it'. So that residence in a 'non -residential building' not for the purposes of guarding it, would not save it from being converted into a 'residential building'. The meaning of section 2(d), with the definition of the expression 'non -residential building', read with the proviso under it, is that such a building remains 'non -residential building' when two conditions are fulfilled (a) it is solely used for the purpose of business or trade, and (b) if any part of it is to be used for residence, it can only be used for the purpose of guarding it otherwise it, changes its character from a 'non -residential building' to a 'residential building'. This is the obvious meaning of the definition of the expression 'non -residential building' in section 2(d) of the Act. This definition was not for consideration before the learned Chief Justice when he delivered the Judgment in Inder Singh's case. No doubt in clause (a) of section 13(2)(ii), on the matter of subletting, there is reference to the subletting of entire building or portion thereof, but in clause (b) of the same, on the matter of conversion of user, no such words are used, and it is straightway that user of the building for a purpose other than that for which it was leased is a ground for eviction. Whereas in clause (a) the words used are 'the entire building or any portions thereof' in clause (b) the words used are the building. If consideration was only confined to these two clauses of section 13(2) (ii), the approach by the learned Chief Justice obviously finds support from the language used in the two clauses This, in spite of an argument on the side of the applicant that in section 2(a) the meaning of the word 'building' has within its scope 'part of a building, the words in clauses (a) and (b) of section 13 (2) (ii) do lend support to the opinion expressed by the learned Chief Justice. Only the definition of the expression 'non -residential building' with the proviso as in clause (d) of section 2, directly deals with the nature and character of such a building, which completely takes away the force of the argument based on the language used in clauses (a) and (b) of section 13(2)(ii). The definition in section 2 (d) directly applies to a 'non -residential building' and it envisages nothing else but residence in such building only for the purpose of guarding it. and thus residence in it otherwise converts it into a residential building': Once a 'non -residential building' is converted into a residential building', this would immediately come under section 13 (2) (ii) (b) of the Act. In these circumstances the view of the learned Chief Justice in Indar Singh's case cannot be supported, for where, in the case of a 'non -residential building', residence is taken in it for a purpose other than guarding it, that obviously would bring in the ground of eviction as in section 13 (2) (ii) (b) of the Act.