Kundan Lal vs Bhagwan Dass and Another

G.D. Khosla, C.J.—These two revision petitions (Civil Revisions Nos. 391 and 642 of 1960) have arisen out of an application for the ejectment of a tenant from rented premises on the ground that the premises were required by the landlords for their own personal use. There was also a ground regarding the non-payment of rent, but this is no longer in issue.

The premises consist of a two storeyed building of which the lower storey is a shop and the upper storey is described as balakhana. The premises in the original instance belonged to one Raunaq Ram and were then purchased by Bhagwan Das and Amarjit who are two brothers. Kundan Lal, the Petitioner in Civil Revision No. 391 of 1960, had leased these premises from the original owner, Raunaq Ram, and after the sale he continued to remain in possession as tenant under the new owners. The lease was for a period of one year, but before the expiry of that year Bhagwan Das and Amarjit brought an application for ejectment on the ground that they required the premises for their own use. The application was resisted on a number of grounds, but the main ground was that the premises were not required for personal use and that they were non-residential premises and, therefore, the ground upon which the owners had based their application was not available to them. It was found by the trial Court that part of the premises were business ipremises and part residential, the lower storey being held to be non-residential and the upper residential. The Rent Controller accordingly gave an order of ejectment in respect of the upper storey but not in respect of ground-floor. Both parties were aggrieved by this order and went up in appeal to the Appellate Authority. The Appellate Authority affirmed the order of the Rent Controller and dismissed both the appeals. The finding that the premises were required by one of the landlords for his own personal use was also affirmed.

Both parties have again come up in revision to this Court, and it has been urged on behalf of the tenant that the application for ejectment was premature, because the contractual period of one year, for which the premises had been leased, had not yet expired. It is also argued before me that the premises cannot be said to be residential because even if only a part of the premises was being used for business purposes, the entire premises must be held to be non-residential.

With regard to the first argument, my attention has been drawn to the proviso to Section 13(3)(a) (iv) of the East Punjab Urban Rent Restriction Act which is in the following terms:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this Sub-section before the expiry of such period.

With regard to this it has been urged that the right to make an application for ejectment is a special right given by the provisions of this Act and, therefore, such an application must fall within the four corners of Section 13(3) and unless it does so, the application is liable to be dismissed. On the other hand, it is urged on behalf of the landlords that the most that can be said is that the application is premature, but as during the pendency of these proceedings the period of one year expired, the defect of prematurity was removed and, therefore, the application could proceed and an order of ejectment could validly be made. Reliance was placed upon three decisions of which the first one is Ayyan Krishnan v. Kunjikutty Amma Lekshmikutty Amma and Anr. AIR 1956 Travco. 203 . This was a suit for redemption of mortgage. The period of mortgage had not yet expired when the suit for redemption was filed, but during the pendency of the suit the period did expire. It was held that the defect had been removed and that the suit was maintainable. Another case is AIR 1940 194 (Lahore) This was a suit by a trustee on behalf of an institution. The argument raised was that the suit was premature, because at the time it was brought Mahant Mani Ram, during whose lifetime a compromise was confirmed, was alive. During the pendency of proceedings Mani Ram died, and the Division Bench of the Lahore High Court took the view that by the death of Mani Ram the initial defect had been removed and though the suit was premature when it was brought, it could proceed as a valid suit after the death of Mani Ram. The third case is AIR 1926 145 (Lahore) In this case, too, it was held that where a suit for the dissolution of partnership was brought and the objection raised was that it was premature because the term of the partnership had not yet expired, the suit was not liable to be dismissed. During the pendency of the suit the condition was fulfilled. The condition was to the effect that the timber owned by the partnership should all have been sold, and since this was done, it was held by the Lahore High Court that the defect in the suit had been removed during the pendency of the suit and, therefore, the suit could proceed.

It is argued before me that all those three cases are distinguishable from the case before me inasmuch as the present case is completely governed by a special code which is a complete code in itself governing the relations between landlords and tenants. Under the ordinary law, there is no doubt that a technical defect may easily be removed by the lapse of the time and that a right, which had not accrued to the Plaintiff when the suit was instituted, may accrue to him during the pendency of the suit. In the present case, however, the landlords had no right whatsoever to bring a suit on the ground that they wanted the premises for their own occupation under the ordinary law. This right has been given to them under the East Punjab Urban Rent Restriction Act. It is to be remembered that the Urban Rent Restriction Act is a law for giving special protection to tenants. Many of the rights possessed by landlords have been taken away by this Act and only some of the rights have been allowed to remain. A landlord, for instance, cannot eject a tenant who continues to pay his rent and conducts himself as a law-abiding and good tenant. Under the ordinary law a landlord could always eject his tenant on the expiry of the period of tenancy or on giving him an adequate notice. This he cannot do now. He can only claim ejectment upon certain grounds which are set out in Section 13 of the Act. Sub-sections (1) and (2) deal with grounds which amount, in effect, to breaches of the terms of the lease, and upon these grounds the landlord can sue the tenant at any time. - Under Sub-section (3), however, the grounds given are quite different. They relate to certain rights which a landlord used to have under the old law, but the Sub-section provides that only in certain circumstances can a landlord make an application for ejectment upon those grounds, and one of those conditions is that where the lease is for a definite period, that period must have expired. The proviso says quite clearly that a landlord "shall not be entitled to apply under this Sub-section before the expiry of such period". The disability is not to making an order of ejectment but attaches to the making of the application. Therefore, it is quite clear that on the day when the landlords made the present application for ejectment, the application was wholly incompetent. There seems to be, in my view, no analogy between an application by a landlord under the Urban Rent Restriction Act and a suit filed under the ordinary law, e.g., a suit for redemption of a mortgage or a suit for the dissolution of partnership. In those cases it has been held that the ordinary law comes into play and an initial defect may well be removed by the lapse of time. In the present case the law places a complete embargo on a landlord making an application for ejectment during the period of the lease upon any of the grounds set out in Sub-section (3). He can, undoubtedly, make an application under Sub-sections (1) and (2) even before the expiry of the period of lease. It seems to me that the provisions of the Urban Rent Restriction Act must be interpreted strictly, and where there is a mandatory provision, it cannot be disregarded by merely urging the argument that even though the application was not competent when it was made, it became competent by the lapse of time. The application being wholly incompetent under the law can never be converted into a good and valid application merely because the period of lease has expired.

In this view of the matter, the application for. ejectment was liable to be dismissed.

With regard to the other matter, namely, whether these premises are residential or non-residential, it seems to me that the Rent Controller has not taken the correct view in accordance with the definition of what are residential premises. According to this definition, a nonresidential building means a building which is used solely for the purpose of business or trade. If, as has been found by the Rent Controller and by the Appellate Authority, the upper storey was being used for residential purposes, the whole of the building becomes a residential building, because it is not a non-residential building. This matter, however, is not of any importance, because the application for ejectment is liable to be dismissed owing to an inherent defect contained in it.

In this view of the matter, I allow the tenant''s petition (Civil Revision No. 391 of 1960) and dismiss the landlord''s petition (Civil Revision No. 642 of 1960). The application for ejectment is dismissed. There will be no order as to costs.