ORDER
V.P. Gupta, J.
1. This revision petition has been filed by Karam Chand tenant-petitioner against the order, dated 7th August, 1979, passed by the Rent Controller (I), Simla, by which the application of the tenant-petitioner under Order 6 Rule 17 CPC seeking amendmenl of the written reply has been dismissed.
2. The brief facts of the case are that Sohan Singh landlord-respondent filed an eviction petition in the Court of Rent Controller, Simla, on 30th October, 1976, seeking ejectment of the tenant-petitioner. The main ground, as alleged in the petition for seeking eviction of the tenant, was that the premises in dispute constituting No. 29, Middle Bazar Simla, are required by the landlord for his personal occupation and the residential accommodation Of building, 58. The Mall, Simla, of the landlord is insufficient toaccommodate him and his family members. Besides this ground, the landlord has taken certain other grounds, as mentioned in the eviction petition.
3. A written reply to this eviction petition was filed by the tenant-petitioner and it was alleged that the requirement of the landlord is not bona fide and that the accommodation with the landlord is sufficient for him and his family members. He also denied the other allegations made by the landlord upon which the landlord was seeking eviction of the tenant.
4. In the original eviction petition in column No. 4, the landlord-respondent has specifically mentioned that the disputed premises occupied by the tenant-petitioner are residential. To this para the tenant-petitioner replied that the contents of the petition are admitted or in other words, the tenant-petitioner admitted that the promises occupied by him are residential.
5. During the pendency of the eviction petition, the definition of the word 'non-residential' as given in the original Himachal Pradesh Bent Control Act (hereinafter shortly called the Act) was amended by a subsequent Act No. 2S of 1978 and Section 2 (d) of the Act was amended. Act No. 23 of 1978 came into force on 10th May, 1978. A written reply had been filed by the tenant-petitioner on 25th February, 1977.
6. After the amendment of Section 2 (d) of the Act, the tenant-petitioner filed an application for amendment on 11th September, 1978, and by this amendment application, the tenant-petitioner wanted to take the following preliminary objections :
'3. That the premises in question was let out to the respondent, as shop-cum-residence by, then the owner Assistant Custodian Evacuee Property, and respondent continues to occupy the same on the terms and conditions. The petition for eviction qua the premises in question against the respondent is not maintainable and is liable to be dismissed,' He also wanted to substitute the following paras in place of the original reply to paras 1 to 4.
'Paras Nos, 1 to 3 of the petition are admitted. Para No. 4 of the petition is not admitted. Since the premises in question was let out as shop-cum-resi-dence to the respondent by the Evacuee authority and the respondent continuedto occupy the same on same terms and conditions. The premises are not residential in view of the amendment in the provisions of the H. P. Urban Rent Control Act.'
7. The landlord-respondent contested this application and pleaded that the proposed amendment is likely to set up a new case because in the original written reply the tenant-petitioner had admitted that the premises in dispute are residential while by the proposed amendment he wants to establish that the premises in dispute are non-residential. It is further stated that this amendment is likely to cause irreparable loss and injury to the landlord.
8. In the rejoinder the tenant-petitioner re-asserted the allegations made in the amendment application and stated that no new case is being set up by the tenant-petitioner and that the amendment has been necessitated due to the change in law and that, in fact, there is no admission by the tenant-petitioner with respect to the residential nature of the disputed premises.
9. The Rent Controller vide his order, dated 71 h August, 1979, dismissed the application of the tenant-petitioner on the basis of an unreported judgment of this Court in Civil Revision No. 59 of 1979 decided on 4th May, 1979, by Hon'-ble Handa, J.
10. In the present revision petition, the learned counsel for the petitioner has contended that the proposed amendment is not likely to change the nature of the case and no new case is, in fact, being set up by the petitioner. It was further contended that according to original definition of Section 2 (d) the premises in dispute would have been residential but by the amendment of the Act (Act No. 23 of 1978) 1be premises in dispute come within the definition of 'non-residential premises'. The learned counsel also contended that even in the original written reply the tenant-petitioner had stated that the premises in dispute were being used for living and for doing Tin smith job and that the proposed amendment, is in fact, in accordance with the original written reply.
11. The learned counsel for the respondent contended that the proposed amendment will change the nature of the defence which had originally been advanced by the tenant-petitioner in the written reply. It was contended that in thewritten reply to para No. 4 of the eviction petition, the tenant had admitted that the premises in dispute are residential and that now the tenant is denying this fact by the proposed amendment. It was also contended that the application for amendment is not bona fide.
12. I have considered the contentions of the learned counsel for the parties and have gone through the record of the case.
13. The present eviction petition was filed cm 30th October, 1976, under Section 14 of the Act and the written reply to this eviction petition was filed by the tenant-petitioner on 25th of February, 1977. In the Act the definition of ''non-residential building' and of 'residential building' is given as follows :--
'Section 2 (d) 'non-residential building' means a building being used solely for the purpose of business or trade:'
'Section 2 (g) 'residential building' means any building which is not non-residential building:'
14. By H. P. Act No. 23 of 1578 certain provisions of the Act were amended and in this amended Act the definition of 'non-residential building' is given as follows ;
'Section 2 (d) 'non-residential building' means a building being used :--
(i) mainly for the purpose of business or trade; or
(ii) partly for the purpose of business or trade 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 : Provided that if a building is let out for residential and non-residential purpose separately to more than one person, the portion thereof let out for the purpose of -residence shall not be treated as a non-residential building. Explanation:-- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.'
15. Another Section 29 was also added by this H. p. Amendment Act No. 23 of 1978 which is reproduced below:
'Section 29. Special provisions relating to certain proceedings.-- Notwithstanding anything to the contrary contained in this Act, the provisions of Clause (d) ofSection 2, as amended by the HimachalPradesh Urban Rent Control (Amendment) Act, 1978 (9 qf 1978), shall apply to all proceedings, under the East Punjab Urban Rent Restriction Act, 1949 (3 of 1949) or under this Act, pending, at the commencement of the said amendment, before a rent controller, an appellate authority or the High Court exercising revisional jurisdiction.'
16. In the eviction petition filed by the landlord-respondent, the landlord-respondent had alleged in para 4 that the disputed premises No. 29 Middle Bazar Simla is residential and in para 5 the landlord had specifically stated that he has no knowledge as to how many persons are occupying the premises and similarly in para 14 the landlord-respondent has stated that the premises were let to the tenant-petitioner since before the purchase of the premises by the landlord.
17. In the written reply filed by the tenant petitioner the tenant-petitioner has admitted that para 4 of the eviction petition is correct meaning thereby that he has admitted the premises to be oi residential nature. So far as para 14 of the eviction petition is concerned the tenant has given the following reply:
'In reply to para 14 it is submitted that the premises were allotted to the respondent in March, 1948, by the Assistant Custodian of Evacuee Property Simla on compassionate grounds since the respondent was an orphan brought up in the then orphanage at Tutikandi, in order to rehabilitate him to earn his own livelihood. The respondent was living and doing his tin smith job in the premises and attorning with the District Rent Officer, Simla. The building in which the premises in question are located was later entrusted to Mst, Iqbal Begum for management as Mutwali of the Wakf property and the respondent was asked by the District Rent Officer-cum-Assistant Custodian, Simla to pay rent direct to Mst. Iqbal Begum, who had sold the building to the petitioner in 1976.'
This written reply was naturally given by the tenant in view of the provisions of the Act by which the residential and non-residential premises had been defined prior to the amendment by Act No. 23 of 1978. A perusal of reply to para 14 of the eviction petition clearly suggests that the tenant-petitioner had, in fact, given the history of the premises andhad alleged that he was doing his Tin smith job in the premises when the same were originally allotted to him by the Assistant Custodian of: Evacuee Property/ Simla.
18. By the proposed amendment thetenant-petitioner is only trying to introduce the facts which had been alleged by him in reply to para 14 of the eviction petition. The tenant-petitioner is only claiming that as the premises in dispute had been let out to him as shop-cum-residence by the Evacuee authorities and he is occupying the same On the same terms and conditions, therefore, the said premises are non-residential.
19. After having perused the written reply of the tenant-petitioner and the proposed amendment I do not find that the tenant-petitioner is setting up any new or inconsistent case. As to the reply of para 4 of the petition the tenant-petitioner wants to deny the fact that the premises are residential one although in the original reply he had admitted the same. This admission in the original written reply is not very material in view of Section 29 of the Act No. 23 of 1978, because the provi-sions of Section 2 (d) are applicable to all pending rent proceedings. The tenant-petitioner even otherwise could prove that the premises which were previously covered by the definition of residential premises are in fact non-residential due to the change in the definition of Section 2 (d) of H. P. Act No. 23 of 1978. I have gone through the judgment dated 4th of May, 1979 in Civil Revision No. 59 of 1979, Bal Krishan Seth v. Swaraj Singh and Anr. Hon'ble Justice Handa in this order has rejected the revision petition of tenant Bal Krishan Seth, but at the same time he has allowed the tenant to lead evidence to prove that the premises in dispute are non-residential as defined in Act No, 23 of 1978 without allowing a formal amendment. The learned Judge has nowhere held that such an amendment cannot be allowed. The present application for amendment has been filed without any delay and the same does not appear to be mala fide in any manner. By allowing the proposed amendment the landlord-respondent is not likely to suffer any irreparable loss or injury. On the other hand the proposed amendment is necessary for determining the real question in controversy between the parties. Even without the proposed amendment the tenant-petitioner could prove that the premises in dispute occupied by him are non-residential under the provisions of Section 29 added by H. P. Act No. 23 of 1978.
20. The learned counsel for the landlord-respondent contended that at the time of the filing of the eviction petition and subsequently the premises in dispute did not fall within the definition of non-residential building as the tenant-petitioner was not using any portion of the premises for purposes of business or trade and even if at the time of the inception of the tenancy the tenant-petitioner was doing his tin smith business then that i'act is not material and the premises cannot be termed to be non-residential building. This contention of the learned counsel for the respondent is always available to him even after the proposed amendment and this question has to be decided upon the facts and upon the interpretation of Section 2 (d) read with Section 14 of the Act. In these circumstances at this stage this contention of the learned counsel for the landlord-respondent cannot be considered,
21. In view of the above discussion, I am of the view thai by disallowing the application for amendment of the written reply the Rent Controller has not exercised the discretion in a judicial manner and as such I set aside the order, dated 7th August, 1979, passed by the Rent Controller (I), Simla, and accept this revision petition, The application for amendment of the written statement filed by the tenant-petitioner is allowed. The parties are directed to appear in the Court of the Rent Controller (I) Simla, on 16th January, 1981.
22. The parties to bear their own costs of this revision petition.