Judgment:
V.K. Jhanji, J.
1. This is landlord's revision directed against the orders of the Authorities below dismissing bis petition for ejectment on the ground of personal necessity. According to the petitioner, the wife of the petitioner, Smt. Kulwant Kaur, is stated to be the owner of House No. 5-C, Fairland Colony, Fatehgarh Road, Amritsar. The building is alleged to be residential one and out of this, one room was rented out to the respondent at a rent of Rs. 500/-per month. Ejectment was sought on the ground that he has failed to pay the arrears of rent, . w.e.f 1-6-1982 to 28-2-1983, as well as on the ground that the room in occupation of the respondent is required for use and occupation by the family members of the petitioner.
2. The ejectment petition was contested by the tenant, who in his written statement admitted that Smt. Kulwant Kaur, wife of the petitioner, is the owner of the property. He therefore, denied that there was any relationship of landlord and tenant between the petitioner and the respondent. The rent was claimed to be Rs. 100/- per month and not Rs. 500/- per month as alleged by the petitioner. The respondent denied that the property is residential one. He rather took up the plea that the property is a non-residential property, which is situated in a commercial area. He further stated that the property comprises three shops on the ground floor which are occupied by various tenants and one of the said shops is in occupation of the tenant. The tenancy was claimed to have commenced on 15-12-1981.
3. The Rent Controller on the appreciation of entire evidence on record, found relationship of landlord and tenant between the parties ; the rent was held to be Rs. 500/- per month and the ground of personal necessity was found to be not available to the landlord as the room in possession of the respondent was held to be shop which was let out for running the business and trade. The petitioner preferred an appeal before the appellate Authority. The respondent also filed cross objections on the issue of relationship of landlord and tenant. The appeal as well as the cross objections were dismissed and the finding of the Rent Controller on these counts was affirmed. The petitioner has impugned the orders of the Authorities below by way of this present revision petition.
4. Mr. M L. Sarin, Sr. Advocate, learned counsel for the petitioner contended that the building is suo residential one and even if a part of it was let out for the purpose of running a shop, then also, the same would remain residential building, and it can be got vacated on the ground of personal necessity. He also contended that the rate of rent was wrongly held to be Rs. 100/- per month. On the other hand, Mr. B. R. Mahajan, Advocate, learned counsel for the respondent, submitted that the petitioner in his cross-examination admitted that what was let out to the respondent was a shop and therefore, he cannot seek ejectment on the ground of personal necessity. With regard to rate of rent, he submitted that both the Authorities below on the appreciation of evidence, have returned the finding which calls for no interference.
5. After hearing learned counsel for the parties, at length. I find no merit in this revision petition. The petitioner though in his ejectment petition has stated the building is residential one and out of the same, one room was let out to the respondent, yet in his cross examination, he has admitted that the room was let out not for residential purpose, but for running a shop, meaning thereby that the room in -occupation of the respondent is a shop and not a residential room as alleged in the ejectment petition by the landlord Faced with this situation, Mr. Sarin relied upon the following observation of the Supreme Court in C.A. No. 4216 of 1988 Sh. Dav Brat Sharma v. Dr. Jagjit Mehta, C. A. No. 4216 of 1988:
'In course of submissions advanced at the bar reliance was placed on the Full Beach decision of the Punjab and Haryana High Court in Hari Mittal's case (AIR 1986 Punjab 119). We find that this decision has followed the two judge Bench judgment of this Court in Kamal Arora v. Aman Singh's case The provisions of the Punjab Municipal Act, 1911, were also placed before us. Under Section 192 of the Municipal Act building schemes are contemplated and in case a building scheme is in force, restriction on the nature of use is imposable and consequences of violation thereof arc also provided for.
We gather that in respect of the Jullundur city some portions have schemes under Section 192 in force while for other portions, there is no such scheme. Applicability of the ratio in Hari Mittal's case would depend upon whether the house in dispute is located within an area covered by a scheme Since that information is not available on the record it would be necessary to gather information and the requirement would be with reference to 1973 when the tenancy was created. This question arisen be determined with reference to Section 11 of the East Punjab Urban Rent Restriction Act, 1949.
We direct that the Rent Controller shall receive evidence for parties and collect such other evidence as he considers necessary to provide satisfactory factual data to this Court after putting parties to notice of such material. The report should be received within two months hence. The matter shall be called immediately thereafter. Both the parties are directed to appear before the Rent Contoller on 5-3-90 to take his orders. Copy of this order be sent to the Controller immediately This appeal shall be shown as a part-heard matter. Liberty to mention after the report is received.'
and submitted that a report may be called from the Controller as to whether any scheme framed by the Municipal Corporation exists under which room forming part of the building in dispute could not be used for any other purpose except residential. I am-affraid to accept this contention of learned counsel for the petitioner The respondent in his written statement has categorically averred that the property is non-residential one and is situated in a commercial area. He also stated that there are three shops which are occupied by various; tenants and one shop is in his possession. Despite this specific averment, no evidence was led by the petitioner to prove that the property is residential one or the area in which it is situated, is purely residential. He failed to examine any person from the office of the Municipal Corporation to prove that the area in which the building is situated is residential one or there is any sanctioned scheme either under the Punjab Municipal Law or under the Punjab Town Improvement Act, to show that the building could not be used for any other purpose except residential. Respondent also produced on record photograph, Exh. R-1, in which, not only building in dispute has been shown, but also the adjoining building. I find from the photograph that the ground floor of the building consists of three shops and the first floor is shown to be residential. The adjoining building is also having shops on the ground floor and residence on the first floor. Photograph, Exh. R-1, clearly proves that the area in which the building is situated, is a commercial area where the ground floor is being used for commercial purpose and the first floor is being used for the purpose of residence. In this view of the matter, I am of the view that the petitioner is not entitled to seek an order of ejectment on the ground of personal necessity. The room in occupation of the tenant is nonresidential.
6. I also find no merit in the contention of learned counsel for the petitioner that the shop was let out at the rate of Rs. 500/- per month. Mr. Sarin in support of his argument on the other ground, i.e. rate of rent, referred to Mark 'X/1' and 'RX', entries in register made by Bhagi Lal, Postman, and maintained by the Post Office. He pointed out Entry No. 888 for showing that a money-order of Rs. 150/was remitted to the petitioner who refused to accept the same. He also submitted that if the respondent was paying a rent of Rs. 100/- per month, then why he chose to send a money-order of Rs. 150/-. This submission is also without any merit. Firstly, these documents are not proved on record, secondly, it has also not been proved that the money order was sent by the respondent. The respondent in his statement as R.W-4 has categorically stated that he never sent any money-order to the petitioner. The petitioner also examined AW-5 Jujhar Singh, Junior Accountant of the office of the Director, Accounts, Kapurthala, who in his statement stated that the record has already been destroyed and he is not in a position to say whether any money-order was sent to the petitioner by the respondent. Both the Authorities below on the appreciation of documentary evidence as well as on the basis of statement of witnesses examined in the case, have come to a firm finding of fact that the shop in dispute was let out to the respondent at the rate of Rs. 100/- per month. This finding calls for no interference by this Court.
7. As a result thereof, the revision petition is dismissed with costs.