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TMI Blog1987 (7) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... tire portion of the house except a big hall to one Kuldeep Singh on May 27, 1977. Iqbal Singh died in the year 1980 and on 1.4.81, his widow viz. the respondent leased out the hail to the appellant on a monthly rent of ₹ 650. The lease was for a period of 11 months. The terms of the lease were reduced to writing but the deed was not registered. The respondent filed two applications more or less concurrently (one on 2.2.82 and the other on 3.2.82) against the tenants of both the portions of the house viz. Kuldeep Singh and the appellant. The eviction of both the tenants was sought for on the same grounds viz., they had changed the user of the premises to non-residential purposes and secondly the respondent bona fide required the premises for her own occupation. In addition, in so far as the appellant is concerned, his eviction was also sought for on the ground of default in payment of rent from 1.5.81 onwards. It may be mentioned here that the respondent has three grown up sons and a grown up daughter. During the pendency of the proceedings the size of the family increased to seven members due to the eldest son getting married and begetting a child. The respondent's hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions that fall for consideration can be enunciated as under: 1. Whether the High Court had erred in the exercise of its revisional powers in (a) setting aside the concurrent findings of the Rent Controller and the Appellate Authority that the respondent was not bona fide in need of the hail for her residential use and (b) ignoring the findings of the Rent Controller and the Appellate Authority that the appellant had not changed the user of the hall from residential to non-residential purposes and, as such, he cannot be evicted on the ground of mis-user of the hall. 2. Whether the High Court has failed to note that in view of the concurrent findings of the Rent Controller and the Appellate Authority that the hall must be deemed to have been let out for a non-residential purpose. to wit, running a clinic, the appellant will not be entitled to seek recovery of possession under Section 13(3)(a)(i)(a) of the Act for her residential occupation. We will now take up for consideration the first contention of Mr. Mahajan. The Rent Controller and the Appellate Authority have rejected the ease of the respondent that she bona fide required the hail for her residential needs for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Authority and they had themselves ordered the eviction of Kuldeep Singh. The respondent has clearly stated in her evidence as follows: The house is of single storey. I require the property for my own use and for my children. I require the entire ground floor. I have filed the ejectment petition against the other tenant also. Her evidence was not and indeed could not be challenged. In spite of all these materials being there, the Rent Controller and the Appellate Authority have taken a curious view that the respondent and her family members were wanting one hall alone for their residential needs and as such their case was not a believable one. In so far as the doubts entertained about the respondent not beings likely to forego the rent of ₹ 650 per month paid by the appellant, the Authorities have failed to give due consideration to the respondent's statement that her daughter and sons are all fully grown up and she wanted to perform their marriages and as such she was very much in need of the entire house including the hall for her occupation. Having regard to all these vitiating factors, the High Court was fully entitled to reverse the findings of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case set out in the written statement and propounded a different case that the hall had been taken on lease only for non-residential purposes. The perceptible manner in which the appellant had shifted his defence has escaped the notice and consideration of the Statutory Authorities. Both the Authorities have failed to bear in mind that the pleadings of the parties from the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Another failing noticed in the judgments of the Rent Controller and the Appellate Authority is that they have been oblivious to the fact that the respondent had leased out the hall to the appellant only for a period of 11 months. Such being the case, even if the respondent had come to know soon after the lease was created that the appellant was using the hall to run a clinic, she may have thought it prudent to let the appellant have his way so that she can recover possession of the hall after 11 months without hitch whereas if she began quarrelling with the appellant for his running a clinic, she would have to be locked up in litigation with him for a considerable length of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the landlord as the Court was of the view that even if the landlord and the tenant had converted a residential building into a non-residential one by mutual consent, it would still be violative of Section 11 of the East Punjab Rent Restriction Act and therefore, the landlord cannot be barred from seeking recovery of possession of the leased building for his residential needs. We are therefore of the view that the findings of the Rent Controller and the Appellate Authority about the appellant having taken the hall on lease only for running a clinic and that he had not changed the user of the premises have been rendered without reference to the pleadings and without examining the legality of the appellant's contentions in the light of Section 11 of the Act. We do not therefore think the High Court has committed any error in law in ignoring the findings rendered by the Statutory Authorities about the purpose for which the hall had been taken on lease. Learned counsel for the appellant repeatedly contended that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court was not entitled to disregard those findings and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled to rely on those findings and dispute the respondent's right to seek his eviction under Section 13(3)(a)(i)(a) of the Act. In fact, such a contention was never put forward before the Statutory Authorities or before the High Court. Mr. Mahajan advanced another argument which also had not been urged before the Statutory Authorities or the High Court. He contended that even if the hall had been let out for residential and non-residential purposes, the premises would constitute a non-residential building as per the amended definition under the East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982, and consequently the respondent cannot seek the eviction of the appellant on the ground she requires the premises for her residential use. The Amendment Act referred to above has enlarged the definition of non-residential building , in the parent Act by making a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence to be also a non-residential building. We do not feel persuaded to examine the merit of this contention because it had not been raised before the Rent Controller or the Appellate Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g use of the common bath room and toilet in the house. This would not only cause inconvenience to the members of the respondent's family but would also expose them to the risk of infection from the patients using the bath room and toilet during their visit to the appellant's clinic. Though the appellant has averted in his affidavit that he has only a portable X-Ray unit and he does not have a clinical laboratory to carry out blood test, motion test, urine test etc. and that his patients do not make use of the common bathroom and toilet, there are enough averments in the counter-affidavits of the alternative for residential as well as non-residential purposes. Factually the findings on these contentions have been found to be unacceptable. Moreover, the contentions run counter to the legislative direction contained in Section 11 of the Act prohibiting the conversion of a residential building into a non-residential one without the written consent of the Rent Controller. These factors stand in the way of our accepting the contentions of the appellant's counsel as being pure questions of law and, therefore, worthy of consideration by us in the appeal. It was lastly conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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