Judgment:
K. Kannan, J.
1. The petition for eviction by the landlord survives for consideration whether the tenant had unauthorisedly changed the residential building for a non-residential purpose. The Rent Controller granted eviction on the said ground but in appeal to the Appellate Authority, the decision of the Rent Controller was reversed and the order of the eviction was set aside.
2. In revision, it is contended by learned Counsel for the petitioner that the Appellate Court had fallen into serious error in misappropriation of evidence, who failed to take into account relevant factors that showed that a property, which had been let for residential purpose has used as a godown. While the landlord's own evidence was that the building had been let only for residential purpose, yet another witness PW-4 had referred to the fact that the property had been let out to the tenant for residential purpose and he had his own residence in the immediate vicinity. Learned Counsel appearing for the petitioner argued that the rejection of the evidence of PW-4 only on the ground that he earlier had some transactions with petitioner's father and therefore, his evidence as witness was interested, was clearly wrong. He would also urge that the evidence of the witness that he had a shop far away from the disputed premises was taken in isolation without adverting to his own evidence that he had his residence in the vicinity and that had given him a special advantage to speak from his personal knowledge of how the property had been originally put to use and how there had been a change of user subsequently. The Appellate Court also rejected the evidence of another witness PW-6 on the ground that he did not state categorically that the tenant had been using the premises only for the residential purpose and he found in his evidence a prevarication that he did not know for what purpose the property was let out to the tenant. Yet another witness examined was PW-5, whose evidence was pre-received by the Appellate Authority as supporting the case of the tenant himself when he had stated that ever since he was an occupier of premises nearby he had known the tenant only to be using the property as a godown. Elsewhere in the same evidence, he had also stated that originally the property had been rented out only for residential purpose.
3. The reliance on the statement of witnesses alone where both parties have given varying versions relating to the mode of user may not be safe or appropriate. It is for this reason that the counsel for the petitioner places reliance on the tax authority Ex. P-8, which was an application made by the tenant to Sales Tax Department where he had made a declaration that 'w.e.f. 15.09.1967, I have made a godown in the residential house on first floor opposite my shop'. This statement makes clear two aspects: (i) that the property was a residential one and (ii) one room in that residential property had been used as a godown. The site plan produced by the landlord is itself not in dispute and it refers to the property as comprising of three rooms, a godown and three small rooms. If it should be seen that the tenant was contending that he was using only one room as a godown from the year 1967, as found express in his statement to the Sales Tax Authority, admittedly, the whole of property is now being used only as a godown. It is admitted again by the tenant that he was no longer residing in the property but he was residing in his own house since the year 1972-73 and before residing in his own house he was residing in his Baglawala house. Otherwise too, learned Counsel for the petitioner points put to the reasoning of the Rent Controller, which according to him, was appropriate that in the municipal assessment, it had recorded baglawala property as a shop and therefore, he, could not have resided there and the residence was only on the disputed premises initially. The evidence relating to the so-called residence of the tenant in some other property and how the matter had been dealt with by the Rent Controller has not been discussed at all by the appellate court. The finding of fact given by the Rent Controller has been set aside only be taking different view on the quality of evidence of witnesses and without adverting to the documentary evidence placed by the landlord, which was more clinching and established that the property had been put to use for a wholly residential purpose and that at some point of time, the tenant had only been using the property for his residential purpose. A non-residential building itself has been defined under Section 2(d) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, as a building used mainly for the purpose of business or trade or partly for the purpose of business and partly for the purpose of residence subject to the condition that the person, who carries on business or trade in the building resides there. The definition contains references of a proviso, which is not immediately necessary for reproduction. The residential building itself has been defined under Section 2(g) as a building which is not a non-residential building. The Act prohibits conversion of a residential building to non-residential building under Section 11 of the Act and grants the rights of eviction against a person and makes it as a ground of eviction under Section 13(ii)(b) for a person, who used the building for the purpose other than for which it was leased. The statement by the tenant to the public authority that he was having a godown in a residential building constitutes an admission that it was let out only for a residential purpose and the subsequent change that he had made renders his act actionable.
4. I find that the landlord has established the ground as urged by him and finding of the rent controller is restored and the order of the Appellate Authority is set aside.
5. Under the circumstances, civil eviction is allowed. There shall be, however, no directions as to costs.