Sarojnei Saksena, J.
1. Petitioner-landlord has assailed the order of Rent Controller, Chandigarh dated 8.2.1995 whereby his petition filed Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (in short the 'Act') has been dismissed. Petitioner-landlord has filed this revision against the said order Under Section 18-A(8) of the Act.
2. Petitioner's contention in the lower Court was that he is owner of building S.C.F.No. 4, Sector 22-D, Chandigarh. Respondent-tenant Krishan Kumar is occupying first floor (Barsati) of his building as a tenant along with toilet/latrine, bathroom on ground floor and backyard of ground floor, which is referred to as demised premises. He averred that he is a specified landlord, was in service of Indian Army, and has retired from service with effect from 31.7.1990. After his retirement, he wants to shift to the demised premises, as the demised premises, i.e., first floor and Barsati floor had been taken by the respondent for his residential purposes.
3. Notice of the petition was given to the respondent-tenant, who filed his written statement and raised a preliminary objection about the maintainability of the petition on the ground that earlier such petition was filed by the petitionerlandlord which was dismissed on 22.1.199. The second ground of the assailment was that the demised premises is a commercial building and for the residential need of the landlord, respondent cannot be evicted Under Section 13-A of the Act. It is also averred that the petition is not maintainable as the petitioner-landlord is seeking partial ejectment from the first floor and barsati floor, but the tenancy premises includes one room in between the first floor and ground floor and bathroom, latrine and back courtyard which is common floor of this building. The bonafides of the alleged need were also questioned an it was alleged that this is only a pretext to evict him with a view to enhance the rent.
4. The Rent Controller framed issues, parties led their evidence. The Rent Controller held that the landlord is a specified landlord, but he further held that this premises is a non-residential premises, which cannot be got evicted by the landlord Under Section 13-A of the Act and lastly, the Rent Controller also held that the petitioner-landlord has failed to prove that he bonafidely requires the demised premises for his residence. Hence, the petition was dismissed.
5. Petitioner-landlord's learned counsel contended that since the petitioner is a specified landlord, the Rent Controller had no jurisdiction to consider the bonafides of his alleged need. Suffice it was that he requires the demised premises for the residence of himself and of his family members. Thus, according to him, the Rent Controller has fallen into an error in dismissing the petition. He further pointed out that the demised premises was leased for residential purpose. Hence, the landlord is entitled to evict the respondent as he requires the demised premises for his own residence.
6. Respondent's learned counsel raised a preliminary objection that in view of the provisions of Section 18-A(8) of the Act, this revision is not maintainable. To substantiate his plea, he has relied on Motiram Ghelabhai (deceased by L.R.) v. Jagan Nahar (deceased by L.R.'s) and Ors., A.I.R. 1985 Supreme Court 709, Madan Lal Fakirchand Dudhediya v. Changdeo Sugar Mills Ltd. and Ors., A.I.R. 1962 Supreme Court 1543, Ram Narain Sons Ltd. an others v. Asst. Commissioner of Sales Tax and Ors., A.I.R. 1955 Supreme Court 765, Smt. Pushpa Devi and Ors. v. Milkhi Ram (Dead) by his L.R.'s, A.I.R. 1990 Supreme Court 808 and Aundal Ammal v. Sadasivan Pillai, A.I.R. 1987 Supreme Court 203. His contention is that the proviso Appended to subclause (8) of Section 18-A is just an exception to the provisions of Section 18-A(8) and hence, the impugned .order is not revisable. He further contended that even Under Section 115, Civil Procedure Code, or under Article 227 of the Constitution, this Court has no jurisdiction to entertain this revision.
7. Petitioner's learned counsel relying on Dr. Dina Nath v. Smt. Santokh Kaur etc., (1987-1)91 P.L.R. 171 and D.D. Malik v. S.M. Nehra, (1991-1)99 P.L.R. 441 valiantly argued that this revision is maintainable. To appreciate the rival contentions, it is essential to reproduce the said provisions of sub Clause (8) with its proviso. It runs as under :-
'(8) :- No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this section; Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.'
8. In Aundal Amal's case (supra), the Apex Court considered the various provisions of Kerala Buildings (Lease and Rent Control) Act (2 of 1965) : Their Lordships held that the order of appellate authority Under Section 18(5) is final except as provided Under Section 20, Order of district Judge in revision Under Section 20 is not assailable in second revision before the High Court Under Section 115, Civil Procedure Code. The Apex Court clearly held that such a revision before the High Court Under Section 115, Civil Procedure Code, is barred. The Apex Court further held that, such a revision is not entertainable. If such jurisdiction is held to be vesting in High Court, it would be contrary to provisions of the Act and public policy.
9. In Ram Narian Sons Ltd's case (supra) their Lordships of the Supreme Court held that 'it is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other'. In that case the Apex-Court was considering the various clauses of Article 286 of the Constitution and it held that 'even if the non-obstante clause:' Notwithstanding that the imposition of such tax is contrary to the provisions of this clause': had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in Article 286(2) and could not be extended to any of the other provisions of Article 286. The non-obstante Clause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to 'this clause' i.e. Article 286(2).'
10. In Moti Ram's case (supra) the Apex Court considered the provisions of Section 50 of Bombay Rents. Hotel and Lodging House Rates Control Act (57 of 1947) and it held:-
'The proviso to S.50 read with the separate paragraph added thereto is an independent provision enacting a substantive law of its own by way of providing for special savings. It has not been added merely with a view to qualify or to creat an exception to what is contained in the main provision of Section 50.'
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11. In the judgment Section 50 is reproduced at page 712 along with its proviso which is interpreted as above.
12. In Madan Lal's case (supra) their Lordships were considering the provisions of Section 76(1) and (2) of Companies Act, 1956. Interpreting the proviso, their lordships held' as has been observed by Craies 'On Statute Law', provisos are often inserted 'to allay fears' or to remove misapprehensions. Just as Section 76(2) has to be read in the light of Section 79 and subject to its provisions. So, it is to be read in the light of Section 76(1) and subject to its provision. In other words, in order to clarify the position in regard to the devices which may be adopted to defeat the limit imposed by Section 76(2), the Legislature has provided by Section 76(2) that these devices are also subject to Section 76(1) and payment can be made under those garbs or devices, provided they do not exceed the limit prescribed by Section 76(1).'
13. In Pushpa Devi's case (supra) proviso to Section 13(2) (i) of the Act is considered by the Apex Court. They held that thee purpose of Proviso is to relieve defaulting tenant from eviction. It is further clarified that the word 'tenant' occurring in proviso should be liberally construed as to include 'person claiming to be tenant.'
14. In D.D. Malik's case (supra) a Single Bench of this High Court has clarified that when a petition is filed by a specified landlord Under Section 13-A of the Act, procedure Under Section 18-A is to be followed. His Lordship has considered the scope of sub Clauses (4) and (6) of Section 18-A and it is held that where leave to contest is granted, that procedure is required to be followed.
15. In Dina Nath's case (supra) this High Court has considered the provisions of Section 18-A (8) and has held that :-
'the power of the High Court under the proviso to sub-section (8) of Section 18-A is not co-extensive with the power of revision under sub-section (5) of Section 15 of the Act, inasmuch as the former does not confer power on the High Court to appreciate evidence to satisfy itself as to the legality or propriety of the order. It can call for the records of the case for the purpose of satisfying itself that the order made by the Rent Controller is according to law. In other words it can interfere with the order if it is without jurisdiction or contrary to law and express provision of the Act as amended by Punjab Act No. 2 of 1985 or where the order is preverse resulting in miscarriage of justice.'
16. In Hardip Singh v. Sh. Kanwaljit Singh Monga, (1993-3)105 P.L.R. 720, this provision was again considered by this High Court and it is held that 'under proviso to Section 18-A sub Section (8) it is open to the High Court to interfere if it is satisfied that the order passed by the Controller is not according to law. The expression 'order not being according to law'- is of very wide amplitude. It is not confined to question of mere jurisdiction.'
16. A bare reading of the proviso makes it clear that it is not exception in the limited sense as Mr. Mehta learned counsel has tried to projecket it. Sub Clause (8) provides that no appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this Section. Proviso appended there below is that the High Court may, for the purpose of satisfying itself that an order made by the Court under this Section is according to law, call for records of the case and pass such order in respect thereto as it thinks fit.
17. Thus, meaning of this sub Clause and proviso is very clear. If the ejectment order is passed by the Rent Controller, the tenant has no right of appeal or second appeal if the order is in accordance with the procedure prescribed in this Section, i.e. Section 18-A. But if the order passed by the Controller (nature of the order is not qualified, it may be an ejectment order or it may be an order dismissing the landlord's petition), under this Section, i.e. Under Section 18-A, is not according to law, the High Court is empowered to call for the records of the case for satisfying itself that such an order passed under this Section is according to law and to pass such order in respect thereto as it thinks fit. Thus, this proviso is an independent provision which is an exception not to sub Clause (8) but to Section 18- A of the Act. Under this proviso, a revision is maintainable before the High Court for the limited purpose to examine that order passed by the Rent Controller under this Section is according to law or not, though the purpose is limited but it is very extensive as well, because the illegality of the order is assailable. If it is compared with the provisions of Section 15(5) of the Act intention of the legislature becomes clear. Under Section 15(5) of the Act the High Court has revisional power to adjudge the legality or propriety of order or proceedings wherein such order is passed by the Rent Controller Appellate Authority, Thus, according to me, under the proviso appended to sub Clause (8) of Section 18-A the High Court has jurisdiction to entertain a revision against an order whereby the Rent Controller has dismissed the landlord's ejectment petition.
18. Thus, in my considered view, the preliminary objection raised by Mr. Mehta respondent's learned counsel in untenable and is hereby rejected.
19. So far as merits of the revision petition are concerned, petitioner's learned counsel contended that the demised premises was leased out to respondent Krishan Kumar for residential purpose. This Building is shop-cum-flate. Flat definitely means residential accommodation. On the ground floor of this building, another tenant Krishan Gopal is running a cloth shop, i.e. non-residential part of this building. Referring to Section 2(d) of the Act, he argued that if a building is used solely for the purpose of business or trade or if a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence, then it is to be termed as non-residential building. Admittedly, in this building there are two tenants. Hence, it is obvious that it is not under a single tenancy and secondly, as the disputed premises was let out to Krishan Kumar respondent for residential purpose, it-is not being used for business or trade. Thus, according to him, the learned Rent Controller has fallen into an error in holding that since it is non-residential building, petitioner's petition filed Under Section 13- A of the Act is liable to be dismissed.
20. To support his contention, petitioner's learned counsel has relied on Tirath Ram Chadda v. Tara Singh, 1977(2) R.C.R. 153, Satish Kumar Mittal and Anr. v. Nand Kumar Khosla, Advocate, (1982)84 P.L.R. 642, Jang Bahadur Singh Bawa v. Subhash. Chander, (1995-2)110 P.L.R. 311. and Kamal Arora v. Amar Singh and Ors., 1985(2) R.C.R. 466.
21. In Tirath Ram Chadha's case (supra) the facts were that shop-cum-flat was given on rent to the tenant as one unit. Tenant was using the flat for residence and shop for business. The landlord required the demised premises for his residential purpose. The High Court held that the shop-cum-flat would be a residential building as it was not solely used for business purpose. This judgment is dated 3.3.1977, i.e. before Section 2(d) was amended by Amending Act 42 of 1982 dated 21.8.1982. [The East Punjab Urban Rent Restriction (Chandigarh Amendment) Act 1982 (Indian Parliament Act No. 42 of 1982) - Editor]. Hence, this authority now cannot help the landlord.
22. In Satish Kumar Mittal's case (supra) also it is held that the shop-cum-flat is a residential building. This judgment is also dated 31.5.1982, i.e., before Amendment Act of 42 of 1982.
23. In Kamal Arora's case (supra) residential building situated in residential Zone was let out for running a school, i.e. for non-residential purpose. The High Court held that conversion of residential building to non residential building is not permissible under Capital Development Regulation Act read with Section 11 of the Act. Landlord and tenant by mutual consent cannot convert the residential building into non-residential. The High Court has further held that as the landlord has retired and needs the premises for his residence, ejectment order was rightly passed.
24. In Subhash Chander's case (supra) the landlord after his retirement filed a petition Under Section 13-A of the Act seeking ejectment of the tenant from the demised first room alleging that this room was leased out for residential purpose but after taking the same on rent, the tenant had started using it for the alleged Kiryana shop and that too with permission of the Rent Controller. The tenant contested the petition on the ground that this was leased out for non-residential purpose and since the landlord has admitted the said purpose, he cannot be evict him for his residential need. The contention was repelled and ejectment order was passed. The High Court upheld the said order.
25. In East Punjab Traders v. Gurpiara Lal Saggar, (1981)83 P.L.R. 241, this High Curt has held that when the landlord bonafide requires the demised premises for his residence and has also proved that he is in possession of any residential house nor has vacated any such house without any sufficient cause, the tenant is liable to be evicted.
26. In Kapil Dev Gupta v. Ram Kishan, (1988-1)93 P.L.R. 606, the landlord filed a petition Under Section 13-A of the Act being specified landlord, has expressed his intention to reside in his native town. The building was admittedly a residential one. The bonafides of the landlord's requirement were assailed by the tenant, they were considered by the Rent Controller and the petition was dismissed. The High Court set aside the order holding that the Rent Controller could not go into the question of bonafide need of the landlord since he is specified landlord and he has expressed his intention to reside in the demised premises which is admittedly a residenial one, he is entitled to evict the tenant.
27. In Dharampal Daulay v. P.S. Bhandari Anr., (1993-1)106 P.L.R. 529, a specified landlord filed a petition Under Section 13-A of the Act to evict his tenant from the demised premises, which according to him, was a residential building. The tenant contested the petition asserting that the disputed premises is only one room out of many and was let out as a shop. Therefore, the building being non-residential, the landlord is not entitled to evict him. The Rent Controller held that the building is non residential and the petition was dismissed. Even the revision filed by the landlord was dismissed by the High Court.
28. Thus, legal proposition is clear. If the building is non residential, the landlord cannot evict the tenant Under Section 13-A of the Act as he needs the premises for his own residence. But if the building is residential, then his petition can be allowed. In this case, no doubt, the petitioner's learned counsel has contended that the premises with the respondent was leased out for residential purpose and hence, the landlord is entitled to evict him. He pointed out that even earlier when the petitioner's father filed an ejectment petition against this very tenant, it was specifically held that the premises was leased out for residential purpose and even the tenant's appeal was dismissed. He referred to documents PX and Py. Thus, according to him, the learned Rent Controller has fallen into an error in holding that the premises is a non residential one.
29. Respondent's learned counsel valiantly argued that the said judgments PX and PY are not before the Court and further those decisions are prior to the Amendment Act, 42 of 1982, referred to above. By this Amending Act, Section 2(d) of the Act is amended if the building is being used solely for the purpose of business or trade or if the building is let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence, then it is a non residential building. He pointed out that in para 13 of the impugned order, the learned Rent Controller has scanned the evidence on record. He has pointed out that Krishan Gopal Manchanda, who is a tenant on the ground floor of this building, has stated on oath before the lower Court that the first floor was rented out to Krishan Kumar for commercial purpose and he is running a type-writing shorthand business in the same. Krishan Kumar has also stated so but this statement is not assailed in cross-examination. On that premise, the Rent Controller concluded that thereby the petitioner has admitted that the demised premises was leased out to the respondent by his father for commercial purpose and he is using the same as such until now. This finding is not a assailed before me. No rent note was produced in the lower Court. The petitioner could not controvert this evidence of the respondent that the demised premises was leased out to him by the petitioner's father for non residential purpose. Admittedly, he is running a type-writing shorthand school in this premises.
30. Thus, in my considered view, the learned Rent Controller has rightly held that as this is non residential building, the petitioner-landlord cannot evict the tenant-respondent for his residential need.
31. In view of this finding, I hereby affirm the finding recorded by the learned lower Court.
32. In view of this finding, the question of considering the bonafides of landlord's alleged need, does not arise.
33. Thus, in my considered view, the Rent Controller has not fallen into any error in rejecting the petitioner-landlord's petition filed Under Section 13-A of the Act. Holding that the impugned order passed Under Section 18-A of the Act is according to law, revision, being meritless, is hereby dismissed with costs, which is quantified at Rs. 1000/-