New Bank of India vs Raj Kumar and Another

Ashok Bhan, J.—This revision petition has been filed on behalf of the tenant New Bank of India, Barwala, District Hissar (hereinafter referred to as ''the tenant'') which arises out of the following facts :-

Raj Kumar and his brother Jagdish Chander, landlord-respondents (hereinafter referred to as ''the landlord'') filed ejectment petition u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against the tenant for its eviction from the premises in dispute let out to the tenant in the year 1965 at monthly rent of Rs. 200/- which was later on raised to Rs. 400/- in the year 1977, on the following grounds :-

i) that the tenant has not paid the tax at the rate of 12-1/2% on monthly rent of Rs. 400/- with effect from March 1979 to October 1980;

ii) that the tenant has not paid the monthly rent of Rs. 400/- with tax at the rate of 12-1/2% with effect from October 1, 1980 till the date of filing of the petition;

iii) that the value and utility of the said building has been impaired materially and diminished;

iv) that the ground floor of the building was let out for banking purposes and the first floor of the building for the residence of the Branch Manager. The tenant has changed the user of the first floor of the building from residential to non-residential purposes against the terms and conditions; and

v) that the act and conduct of the tenant is a nuisance to the neighbourers;

In the written statement filed, grounds for ejectment were denied and the rent was admitted to be Rs. 400/- per month. Regarding grounds of ejectment, it was stated that the tenant was not responsible to pay taxes as the premises in dispute were on rent with it at a monthly rent of Rs. 400/- including all types of taxes. Though the liability to pay the taxes was denied arrears of rent were tendered with the taxes keeping their right to recover the demanded taxes. Impairing the value and utility of the building was also denied. Regarding change of user, it was stated that there was no change of user and the building was being used for the purpose for which it was let out to it.

On the pleadings of the parties, the followings issues were framed :-

i) Whether the respondents are liable to be evicted from the suit premises on the grounds mentioned in the petition ? OPA.

ii) Whether the petition is not maintainable in the present form ? OPR.

iii) Whether the petitioner is estopped from filing the present petition? OPR

iv) Whether the petition is bad on account of non-joinder and mis-joinder of parties ? OPR

v) Whether the provisions of Haryana Urban (Control of Rent and Eviction) Act are not applicable to the premises in dispute as alleged ? OPR

vi) Whether the petition is not signed and verified properly and according to law ? OPR

vii) Whether the particulars as required under the Haryana Urban (Control of Rent and Eviction) Act and rules framed thereunder have not been furnished as alleged ? OPR.

viii) Whether the tender of rent is under protest, If so, its effect ? OP Parties.

ix) Relief."

The only ground for ejectment which was pressed before the Rent Controller was regarding change of user. Rent Controller found all the issues No. 1 to 8 in favour of the landlord and against the tenant. Before the Appellate Authority findings on issue No. 1 only were challenged. Appellate Authority affirmed the findings recorded by the Rent Controller and maintained the order of ejectment. Feeling aggrieved, the tenant has come in revision to this Court.

I have perused the record of the case so and heard the counsel for the parties at length.

Learned counsel for the tenant argued that the building in dispute is being used by the Bank for the purposes for which it was let out and that there was no change of user of the building. As against this, the case of the counsel for the landlord is that the ground floor of the building was taken on rent for banking purposes and the first floor of the building was taken on rent for the residence of the Branch Manager but now the first floor of the building was being used as godown for storing stationery of the Bank and not for the residence of the Branch Manager and, therefore, certainly change of user had taken place for which the tenant was liable to be evicted. Landlord appeared as PW1 as his own witness. Ram Kishan Pawha, Manager of the New Bank of India, posted at Malout at the time of his testimony, appeared as PW2, Ghanshyam Dass, who was employed as Daftri in the New Bank of India appeared as PW-3. Documents Exhibits P-2, P-3 and P-4 dated January 23, 1970, January 19, 1970 and February 8, 1977 respectively purported to have been written by the Bank to the Landlord were relied upon to prove the change of user. As against this, the evidence of the respondent-Bank consists of the statement of S.C. Gupta, an accountant of the Bank, who appeared as DW-1. The tenant Bank did not produce any documentary evidence.

Admittedly, no lease deed was executed between the parties. Lower Appellate Authority relied upon the testimony of Ram Kishan Pawha, PW-2 and documents Exhibits P-2, P-3 and P-4 to hold that there was a change of user of the first floor of the building from residential to non-residential by the tenant. Exhibit P-2 is a copy of the letter dated January 23,1970 written by the tenant-Bank to the landlord in which the Bank rectified the terms and conditions settled between the parties. Exhibit P-3 dated January 19, 1970 is another letter written by the Bank to the landlord and in clause 3 of this letter, it has been mentioned that the landlord would construct residential portion on the first floor of the building for the Manager of the Bank. Exhibit P-4, dated February 8,1977 is another letter written by the Bank relating to the building suggesting some modifications. PW-2 Ram Kishan Pawha, in his statement stated that he had used the first floor of the building as his temporary residence. I have perused all these documents and the statement of Ram Kishan Pawha, PW-2. In my view the Courts below have misread the evidence. The Appellate Authority held that Ram Kishan Pawha, PW-2 has admitted that the first floor of the building was being used for residential purposes. This witness infact has stated that on the first floor of the building there were two rooms out of which one room was used by him as his temporary residence. This witness further stated that there was no bath room, latrine and kitchen on the first floor. Exhibit P-3 is a letter dated January 19,1970, written by the Bank to the landlord promising to advance a sum of Rs. 10,000/- with interest at the rate of 9% per annum for the construction of the first floor which was to be completed within a period of three months from the date of advance. Clause - 3 of this letter reads as under :-

"That you will construct a residential portion on the first floor for the Manager of the Bank."

Exhibit P-2 is a letter written four days later i.e. on January 23,1970, rectifying the terms and conditions settled on January 19, 1970 vide Exhibit P-3. There is no evidence on the record to suggest that the landlord had constructed any residential portion on the first floor of the building after the letter Exhibit P-3 was written. Landlord did not state a word about it in his statement as PW-1. He even did not state that any amount was advanced to him by the Bank for the construction of the residential portion or that he constructed a residential portion on the first floor of the building after January 19, 1970 as per their agreement. On the first floor there is no bath room, latrine and kitchen. Ram Kishan Pawha, PW-2 in his statement had stated that the upper portion of the building was being used for storing the stationery of the Bank and he occupied one room on the first floor of the building as his residential quarter. From this evidence it cannot be inferred that the first floor of the building was let out to the tenant for residential purposes. The building was let out to the tenant in the year 1965. Letter Exhibit P-3 was written on Jan. 19, 1970 in which the tenant had asked the landlord to construct a residential portion for the Manager of the Bank on the first floor of the building but the landlord has not produced any evidence on the record to show that he had constructed a residential portion on the first floor of the building for the Manager of the Bank after January 19, 1970. The testimony of Ram Kishan Pahwa, PW-2 to the effect that he used one room on the first floor of the building as his residential quarter temporarily does not prove that the upper portion of the building was let out to the tenant for residential purposes. For arriving at this finding, I am fortified by the testimony of this very witness who has stated that there is no bathroom, latrine and kitchen on the first floor of the building which would indicate that it could not be used for residential purposes especially- when the landlord has failed to adduce any evidence to show that he had made any alteration in the original building to convert the first floor of the building into a residential portion after the creation of the oral tenancy.

For the reasons stated above, I accept this revision petition, set aside the orders of ejectment passed by the Rent Controller and the Appellate Authority and dismiss the petition for ejectment filed by the landlord. There will be no order as to costs.